immigration law – europe 2016 - bindmans llp › uploads › files › documents › ... · of...

ImmIgratIon Law – EuropE 2016Virtual round tablewww.corporatelivewire.com

2 3OctOber 2016 OctOber 2016

Round Table: immigRaTion law – euRope 2016

Introduction & Contents

In this special Immigration Law Roundtable we feature the views and opinions of six experts from within the European Union. Our chosen experts share their knowledge and experience regarding the latest trends and interesting developments within their jurisdiction. This roundtable analyses the current

labour market, highlights skill shortages and outlines the visa application process. Other highlighted topics include the implications of Brexit and an insight into the proposed directive to replace the existing EU Blue Card scheme. Featured countries are: France, Italy, Spain and United Kingdom.

Editor In Chief

James Drakeford

What impact has globalisation had on immigration trends?

Who are the main regulators and what legislations apply to immigration law in your jurisdiction?

Have there been any recent regulatory changes or interesting developments?

Can a business send an employee to work in your jurisdiction if there was an urgent business need and how quickly could they start?

Can you talk us through the visa application process?

What are the different options available to an employee or individual looking to relocate?

Can you outline the current labour market conditions in your jurisdiction?

6

7

10

14

16

18

20

21

22

24

26

What skill shortages currently exist in your jurisdiction?

Are there any immigration implications relating to foreign investors setting up a company in your jurisdiction?

Can you outline any penalties or restrictions for non-compliance with immigration regulations?

What key trends do you expect to see over the coming year and in an ideal world what would you like to see implemented or changed?



Alison Stanley is joint head of the Bindmans LLP immigration department and since 2008 has been the only UK lawyer to be ranked annually as a ‘Star Individual’ for personal immigration by Chambers directory.

Specialising in immigration and administrative law for over 30 years, Alison was a founder member and past Chair of the Law Society’s Immigration Law Committee and a founder

member of the Refugee Women’s Legal Group that won the Law Society’s, Liberty Human Rights Award in 2000. She has a keen interest in Legal Aid having served on the Law Society’s Access to Justice Committee for 3 years.

Alison was the first solicitor to be employed by the Joint Council for the Welfare of Immigrants. She lectures and trains extensively on immigration law and writes and broadcasts in the legal and general media. She has also written numerous books and articles on immigration issues.

Anthony Michael has amassed a wealth of experience within UK and global Immigration matters. Having practised Immigration and Nationality Law for over 8 years.

Anthony regularly services his clients by advising on all aspects of the Points Based System (PBS) with particular reference to Tier 1 and Tier 2. He is also fully conversant with non-PBS applications and has vast experience in Nationality Law in addition to Indefinite Leave

to Remain applications, EEA applications and spousal applications. Anthony is able to advise both corporate and private clients on all their immigration needs.

Anthony also provides advice on compliance and prevention of illegal working and his clients continue to hold A-rated Sponsorship status, which is testament to his in-depth knowledge and skills in this area.

Karl Waheed, member of the New York (1987) and Paris (1993) bars, founded Karl Waheed Avocats, a twenty-five person law firm dedicated exclusively to corporate immigration. Karl Waheed Avocats was retained in 2006 by the French Ministry of Labour to present a white paper on corporate immigration in France. This report presented a series of recommendations which were incorporated in the currently applicable French regulations

on business immigration.

Mr. Waheed started his career as an auditor with Deloitte in Florida (1980 to 82). He obtained his Juris Doctorate at Stetson Law School, Gulfport, Florida (1985) and Diplôme des Etudes Approfondies in European Law at the Sorbonne (1986). He has been practicing corporate immigration law in Paris since then.

Roger’s focus includes private asylum claims and related UK and international Human Rights work, including extradition and national security proceedings, as well as applications in respect of international sanctions to the respective bodies. Roger’s reputation for discretion and tenacity is reflected in the firm’s breadth and volume of litigation work, which includes appeals at immigration tribunals, judicial reviews in the High Court and applications to the

European Court of Human Rights as well as the European Court of Justice. He has extensive expertise in advising a wide range of clients, including high-profile international and UK companies and high net-worth individuals. Respected for his innovative and direct approach, he frequently receives referrals from other law firms. Roger has over 30 years’ experience and is regularly cited as an expert in all the leading guides to immigration lawyers.

Ana Garicano Solé is partner at Sagardoy Abogados, a member firm of the Ius Laboris Alliance and one of the leading law firms in Spain, specialised in employment law, employee benefits, pensions, social security and immigration.

She leads the immigration practice, consisting of a team of 11 professionals.Specialised in immigration law, she graduated in law from the Universidad Complutense de Madrid and holds a master’s degree in immigration law from the Autonomous University of Madrid. A member of the Bar since 2001, she has been exclusively dedicated to immigration law for more than 15 years, providing full services to both corporate and private customers.

Marco Mazzeschi is admitted to the Milan Bar Association (1988), to the Taipei Bar Association (2016) and as Foreign Legal Affairs Attorney in Taiwan (2016). He is also a full member of American Immigration Lawyers Association (AILA - 2001). He is listed since 2005 in the International Who’s Who of business immigration lawyers as the leading practitioner in Italy. He is the author of many publications in the field of business

immigration and corporate law. He is a frequent speaker to international conferences and seminars.

Alison Stanley - BindmansE: [email protected]: www.bindmans.com

Anthony Michael - DeloitteE: [email protected]: www.deloitte.co.uk

Karl Waheed - Karl Waheed AvocatsT: +33 1 43 66 94 27E: [email protected]: www.karlwaheed.fr

Roger Gherson - Gherson SolicitorsT: +44 (0) 20 7724 4488E: [email protected]: www.gherson.com

Ana Garicano - Sagardoy AbogadosT: +34 915 634 806E: [email protected]: www.sagardoy.com

Marco Mazzeschi - MazzeschiT: +39 0577 926921E: [email protected]: www.mazzeschi.it

Meet the experts



Gherson: The world is becoming increasingly intercon-nected as the result of a combination of factors: a single market place with growing free trade among nations; the increasing flow and sharing of information, connections, people skills, etc. Migration is, of course, not a new phe-nomenon people have always migrated in search for bet-ter economic opportunities however globalisation has increased the necessity for migration for many reasons including: the transfer of skills, the inequality among na-tions, etc.

The assumed increases in the volume, diversity, geo-graphical scope and overall complexity of migration are commonly linked to advances in transport and commu-nication technology, and more generally to the globalisa-tion processes.

The core idea is that growing social, economic and cul-tural interconnectedness exemplified by the concept of ‘globalisation’ has assisted migration in ever greater numbers between an increasingly diverse and geograph-ically distant array of destination and origin countries.

Waheed: Lawmakers have to deal with the delicate issue of protecting the national labour market from compe-tition from foreign workers desiring to work in France, and French business which is trying to be competitive in a global economy. The balance between protecting national labour market and make French business com-petitive in a global market is made differently from one government to another. The current trend is to have a fast and easier work permit process for highly skilled workers, and protect the middle to low skilled workers.

This being said, and for the benefit of our non-EU read-

ers, countries belonging to the European Economic Area and Switzerland make up a common market for labour. Citizens of such countries are free to move and work anywhere within such common market, without being subject to work permits or immigration formalities.

Garicano: The Globalization has boosted the movement of companies worldwide allowing the provision of ser-vices across national frontiers.

The fact of operating abroad implies, among others, the need of transferring workers between different countries to entities belonging to the same group or to client’s sites based on service agreements.

The mentioned transfers of assignees is crucial for the business since it is an effective way to share companies’ knowledge between the different entities belonging to the group and to provide the agreed services to the cli-ents abroad.

The abovementioned transfers are substantial for the in-ternational exposure and expansion of the companies. The fact of not being able to undertake them would pre-vent the businesses from their internationalisation and hence, their competitiveness.

The immigration legislators are aware of this necessity and thus we are witnessing the establishment of the regu-lation of permits whose goal is to cover more than one jurisdiction. If we look at the EU, we must highlight the EU blue card, even if it has not been a success, and the EU ICT permit. Both permits issued by one EU mem-ber state should facilitate the performance of services in other EU member states.

What impact has globalisation had on immigration trends?

Gherson: UK Visas and Immigration (UKVI), a UK government organisation, is responsible for making millions of decisions every year about who has the right to visit or stay in the UK, with a firm emphasis on na-tional security.

The main immigration structure within the UK is the Points Based System (PBS), introduced in 2008 by way of the Immigration Act 1971, as a means of regulating immigration to the UK from outside of the EEA. The PBS comprises of five tiers, which replaced 70 previous immigration routes! The five tiers are:

Tier 1: Entrepreneurs (for those wishing to set up or take over a business (or businesses) in the UK that they will be actively involved in running. It grants three years leave and those applying must have over £200,000 of funds); Investors (for those who wish to invest capi-tal in the United Kingdom. In November 2014 the in-vestment thresholds were increased to; £2,000,000, £5,000,000 or £10,000,000); Exceptional Talent (for those who are recognised or have potential to be rec-ognised as exceptionally talented leaders in the fields of science, the humanities, engineering, medicine, digital technology or the arts).

Tier 2: General, Intra Company Transfer – for skilled workers with sponsorships from a UK employer

Tier 3: designed for low skilled workers but never im-plemented;

Tier 4: Students;

Tier 5: Youth Mobility Scheme; International Agree-

ment; Temporary Workers - Charity Workers; Tem-porary Workers - Creative and Sporting; Temporary Workers - Religious Workers; and Temporary Workers - Government Authorised Exchange

Outside of the PBS there are family immigration routes for those related to settled persons in the UK, overseas workers in private households, representatives of over-seas business or media businesses; ancestry; EEA regu-lations, etc.

Waheed: Work permits are adjudicated by labour au-thorities who are also in charge of verification of com-pliance of French labour law by employers. Work per-mits are regulated by laws and regulations which are promulgated on the French government’s initiative and political line on how to balance national interests in a global economy.

However, the European Commission has taken a lot of initiative in this area, and created European schemes, which France and other Member States have to trans-pose in to national law. The Commission’s initiatives are often balanced technical tools, whereas national schemes tend to be politically oriented.

The Commission has created EU wide schemes for stu-dents, scientists, highly skilled workers, seasonal work-ers, with minimum sanctions for employers employing illegally staying workers.

The latest example is the EU Directive 2016/801 of 11 May 2016. This directive recasts conditions of entry and residence of third country nationals for the purpose of research, studies, training, voluntary service, pupil ex-

Who are the main regulators and what legislations apply to immigration law in your jurisdiction?

https://en.wikipedia.org/wiki/Science

https://en.wikipedia.org/wiki/Humanities

https://en.wikipedia.org/wiki/Arts



change schemes or educational projects and au pairing. Besides recasting previous directives1, this directive es-tablishes improved intra EU mobility of third country scientists, their accompany families, and students. The purpose of the directive is to consolidate the previous 2 directives in a single directive, which will improve the harmonization of legislation of member states by set-ting minimum standards and making the EU more at-tractive to these strategic populations of third country nationals.

French legislation already meets the minimum stan-dards for admitting third country nationals for the purpose of research, studies, training, voluntary ser-vice, pupil exchange schemes or educational projects and au pairing. However, our legislation will have to be modified to allow for the improved intra EU mobility required by this directive for scientists, their accompa-nying families and students.

Mazzeschi: Under Italian jurisdiction, the following authorities administer the immigration system:

• Ministry of the Interior. Prefectures represent such Ministry throughout the Italian territory. A Prefecture “Prefettura” is established in each province. Each Prefecture has an immigration office “Sportello unico per l’immigrazione”.

• Labour Office (‘Direzione Territoriale del Lavoro’, or DtL);

• Immigration Police Department (Questura Uf-ficio Immigrazione);

• Central Directorate of the Immigration and Border Police (Direzione Centrale della Polizia dell’Immigrazione e delle Frontiere);

• Ministry of Foreign Affairs.

Italy has a civil law system, which conforms to interna-

1 Directives 2001/114/CE and 2005/71/CE

tional and communitarian rules. Jurisprudence is not strictly binding but can influence subsequent decisions.

The sources of law are organised hierarchically. Italian main sources of law are:

- The Constitution: is the main source of law. - The laws (codes, parliamentary laws, regional

laws) - Regulations provide details about the enforce-

ment of laws.- Customary law- In Italy, the main sources of immigration law

are:- Legislative Decree No. 286 of 25 July 25, 1998

– Consolidated Code on immigration and on dispositions applicable to foreign citizens;

- Presidential Decree No. 394 of 31 August 31, 1999 – Implementation and enforcement of dis-positions set forth by Legislative Decree 286/98;

- Ministry of Interior Directive 1.3.2000. Defini-tion of means of support for entrance and stay in the country;

- Legislative Decree No. 30 of 6 February 2007— Implementation of EU Directive No. 2004/38/CE on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States;

- Interministerial Decree No. 850 of 11 May, 2011 – Definition of various types of visas and condi-tions for their issuance.

Garicano: In Spain there are three main immigration legal frameworks:

EU Legal framework: - Royal Decree 240/2007 of 16 February 2007, relating to the entry, free movement and residence in Spain of EU nationals coming from EU Member States, the EEA and Switzerland. - Royal Decree 987/2015 of 30 October 2015, amending Royal Decree 240/2007, relating to the entry, free move-ment and residence in Spain of EU nationals coming from EU Member States and the EEA.

The foreign nationals covered by this legal framework can live and work in Spain under the same conditions as Spanish citizens in Spain.

Family members covered by this legal framework are entitled to live and work in Spain from the very fact of being included in the legal framework without need of holding any specific permit, irrespective of the ob-ligations to comply with. The exercise of their right to live and work cannot be conditioned to the fact of hav-ing applied for or holding the certificate or residency card, with the exception of the extended family who can only commence labour activity upon notification of the approval of the application to be included in the EU framework, and before fingerprinting and residence card collection.

When the foreign national’s situation does not fall un-der the EU legal framework, they are required to apply for the corresponding residence permit enabling them to reside or reside and work in Spain. There are two regimes that operate in this sense:

General Immigration Framework: - Organic Act 4/2000 of 11 January 2000 on the rights and freedoms of foreign nationals in Spain and their social integration. - Consolidated version of Royal Decree 557/2011 of 20 April 2011, enacting the Regulation of Organic Law 4/2000, on the rights and freedoms of foreign nationals in Spain and their social integration, after its reform by Organic Law 2/2009.

Entrepreneurs’ Framework: - Act 14/2013 of 27 September 2013 on support for en-trepreneurs and their internationalisation. - Act 25/2015 of 28 July 2015, in provision 11 on amend-ment of Act 14/2013 of 27 September 2013 on support to entrepreneurs.

In relation to the residence authorisation permitting work, the application is subject to the labour market test unless the Section 40 of Act 4/2000 related to the exemption applies or if the application is submitted through the Large Companies Unit and in case it is ap-plied for pursuant to the Entrepreneurs’ Act.

Among other reasons, the Entrepreneur’s Act is the most beneficial framework because: - The requirements are softened, - The labour market test is not applicable - The processing time is reduced - In-country process can be undertaken.

Stanley: The immigration system in the UK is run by UK Visas and Immigration, part of the Home Office. Immigration control is exercised before a person travels to the UK through the “entry clearance” process, that is, the visa application process. Further control occurs at the border, with an examination by an immigration of-ficer. In addition, in-country applications to vary or ex-tend permission to remain in the UK are dealt with by the UKVI offices which are in various places in the UK, with the main office being in Croydon, South London.

The immigration system in the UK is run by UK Visas and Immigration, part of the Home Office. Immigration control is exercised before a person

travels to the UK through the “entry clearance” process, that is, the visa application process.

- Alison Stanley



Michael: In light of the UK referendum, there have been a number of interesting developments, however, negotiations are still taking place. The UK’s decision to leave the EU will inevitably cause a period of great uncertainty for businesses and individuals. A num-ber of questions following Brexit remain unanswered. What will happen next? How will immigration be con-trolled once the UK leaves the EU? Will there still be free movement? The truth of the matter is, no one re-ally knows how the Brexit process will work. The UK is essentially in limbo until it can resolve its internal position. In the post-Brexit reality, we are inevitably left with more questions than answers. What is for certain is that the impact on immigration and tax will not be immediate. Employers will have to take into consid-eration a number of critical factors, such as employee communication, tax and social security, currency im-plications and of course, immigration. Businesses will now also need to take their EEA population into con-sideration. Any EEA national with five years continuous residence in the UK may now wish to consider applying for Permanent Residence, if not for anything else but piece of mind as Brexit negotiations are taking place. To be eligible, the employee will need to demonstrate that they have been resident in the UK and exercising treaty rights, whether through employment, study, self-sufficiency, or job-seeking, for at least the last five years. We encourage any individuals who qualify to apply for permanent residence.

Gherson: With effect from 12 July 2016, under sec-tion 24B of the 1971 Act (as inserted by section 34 of the 2016 Act), a person commits the offence of illegal working if he is:

- Subject to immigration control and works when disqualified from doing so by reason of his im-migration status; and

- At the time, he knows or her reasonable cause to believe that he is disqualified from working by reason of his immigration status.

A person has been disqualified by reason of his immi-gration status if:

• He has not been granted leave to enter or re-main in the UK; or

• His leave to enter or remain in the UK; - is invalid,- has ceased to have effect (whether by reason of

curtailment, revocation, cancellation, passage of time, or otherwise), or

- is subject to a condition preventing the person from doing work of that kind.

The offence of illegal working is not limited to working under a contract of employment and covers all types of work, including apprenticeships and self-employment. The new offence enables wages from illegal working to be seized as the proceeds of crime. In England and Wales, the offence carries a maximum penalty of six months’ imprisonment and/or an unlimited fine. In Scotland and Northern Ireland, the offence carries a maximum penalty of six months’ imprisonment and/or a fine of the statutory maximum.

Also with effect from 12 July 2016, under section 21 of the 2006 Act (as amended by section 35 of the 2016 Act), an employer commits an offence if he employs an illegal worker and knows or has reasonable cause to

believe that the person has no right to do the work in question. This means that an employer can no longer evade prosecution where the investigating agency can-not prove that the employer knew that the employee had no permission to work. The amended offence en-ables employers to be prosecuted where they have rea-sonable cause to believe that the employee could not undertake the employment, even where they have per-haps deliberately ignored information or circumstanc-es that would have caused the employer to know that the employee lacked permission to work. The maxi-mum sentence on indictment for this offence has been increased from two to five years. The financial penalty (known as a civil penalty) remains at up to £20,000 for each illegal worker.

If you carry out document checks as set out by the UKVI, you will have a statutory excuse against liabil-ity for a civil penalty. This means that if you have em-ployed someone who does not have the right to work, but you have correctly conducted document checks as required, you will not receive a civil penalty for that il-legal worker.

Waheed: The new Law on the Right of Foreigners in France was promulgated 7 March 2016 and published in the Official Gazette on 8 March 2016. Some provi-sions reshuffle in depth categories and duration of residence permits and the system of work permits on labour migration. This law creates the Talent Passport category for highly skilled workers which provides for a residence permit valid for up to four years. The entry into force of these provisions is postponed to a date to be fixed by decree no later than 1 November 2016. In the absence of implementation decrees there is incerti-tude on changes to the current immigration processes.

Creation of “Talent Passport”

A Council of State decree shall set the conditions for issuing the card “talent passport” and determine com-pensation levels.

The residence “Talent Passport” will be valid until four

years and will be issued in the following cases:

• Status change for students with a Master degree• EU Blue Card status• Intra-corporate transfer (with local contract in

France)• Scientist status• Foreign national with Master degree creating a

business in France• Foreign national with an innovative project rec-

ognized by a public body• Foreign national with direct investment in

France• Legal representative (employee or agent)• Artist • Foreign national whose international reputa-

tion is established (scientific, literary, artistic, intellectual, educational or sports).

The law expressly abolishes the need to apply for a work permit for the above categories, most of which are cur-rently subject to work permit adjudication by the labour authorities having jurisdiction over the place of work in France. At this point we do not know how the sup-pression of the work permit adjudication will change the adjudicating authority and the overall immigration process. The Counsel of State decree to be published before 1 November 2016 will determine the adjudicat-ing authority and the process.

Family members may be issued a card authorising the exercise of a professional activity. The duration of the card is based on the duration of the “Talent Passport” card of spouse.

Intra-Corporate Transfers (ICT): employees and trainees

This new category is based on the transposition of the European Directive No. 2014/66 / EU of 15 May 2014. It concerns three possible cases of intra-corporate transfers: posted worker, trainee, mobile worker, and mobile trainee. Family members of ICT’s may qualify for a residence permit authorising the exercise of a pro-fessional activity.

have there been any recent regulatory changes or interesting developments?



Suppression of work permits for assignments of less than three months in certain fieldsThe foreign nationals who come to France in order to take up employment for a period of up to three months in fields determined by decree to come, will no longer be subject to work permits.

Garicano: Over the past 12 months Spain has imple-mented two interesting changes:

Firstly, the implementation of the Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an in-tra-corporate transfer.

The implementation came into force in July 2015 and meant the regulation by the Act 14/2013 of the EU ICT permit according to which a third country national holding an EU ICT Permit issued by an EU member would be authorised to work in Spain without need of holding a new permit but only notifying the transfer to the Spanish authorities. That said, the Spanish authori-ties would preserve the right to forbid the transfer in case it does not fulfil the requirements to qualify for an EU ICT permit according to the established in the mentioned Act.

In the same line, foreign nationals, holding an EU ICT permit issued by the Spanish authority will be able to work in other EU countries using this permit according to the applicable implementation conditions.

Secondly, the implementation of the concept of extend-ed family concept in the EU legal framework. This concept was implemented in December 2015 broadening the scope of applicability of the EU legal framework in Spain.

Up until December 2015, the third country nationals depending on EU/EEA/Swiss citizens only were cov-ered by the EU legal framework if they were:

• Spouses according to the national law of the EU/EEA/Swiss citizen.

• Partners of the EU/EEA/Swiss citizen with the partnership registered in an EU country.

• Children of the EU /EEA/ Swiss national or spouse/partner, under 21 years old and older (financially dependent on the EU/EEA/Swiss citizen).

• Children of the EU /EEA/ Swiss national or spouse/partner, under 21 years old and older (financially dependent on the EU/EEA/Swiss citizen).

As of December the following dependants can also re-quire the applicability of the EU legal framework:

• Family members that in the country of origin depend financially or physically on the EU citi-zen or have lived with him/her at least during the past 24 months.

• Family members that due to serious health is-sues or disability reasons must be in charge of the EU citizen.

• Spouses or common-law partners whose mar-riage or common-law partnership is not reg-istered The marriage or Common-law partner whose relationship is not registered at an EU Registry, but can prove a cohabitation with af-fective relationship of at least one year or they live together and have common descendants.

The inclusion of these dependants in the EU legal framework implies they can live and work in Spain under the same conditions as the Spanish citizens and thus they will not need a work permit to start working in the country.

Stanley: Immigration Law in the UK is very fast mov-ing which reflects the fact that immigration is a highly politicised area. There have been seven immigration bills in the last eight years. The current Prime Minister, Theresa May, had overseen 45,000 changes to the Im-migration Rules during her six years in office as Home Secretary. The latest legislation is the Immigration Act 2016 (the “new Act”) which was enacted on 12 May 2016. During its passage through Parliament the gov-ernment made it clear that the aim was to create a hos-

tile environment for those in the UK unlawfully. As a result, the government states that the new Act will:

• introduce new sanctions on illegal workers and rogue employers

• provide better co-ordination of regulators that enforce workers’ rights

• prevent illegal migrants in the UK from access-ing housing, driving licences and bank accounts

• introduce new measures to make it easier to en-force immigration laws and remove illegal mi-grants

The majority of the sections of the new Act have yet to come into force. However, the first commencement

order has been enacted and brings into force a new criminal offence of “illegal working” on 12 July 2016. This makes it an offence for a person subject to immi-gration control to work at a time when he or she is not permitted to do so and knows, or has reasonable cause to believe that he or she is not permitted to work. It bites on both the unlawful worker and on the employer. Although earlier legislation penalised employers who employed a person without permission to work, the new section broadens the scope of the prohibition and increases the criminal penalty on employers from two to five years imprisonment. In addition, in a draconian measure, the Act introduces a new “employer closure notice”, enabling immigration officers to shut a business down for a specified period.



Gherson: If a multinational company wishes to relo-cate an overseas employee to the UK they could take advantage of the Tier 2 (Intra Company Transfer) route whereby skilled employees whom have worked for the overseas business for a period of 12 months or more can be transferred to the UK to enable skill sharing. The UK business must hold a Sponsor Licence (which is ap-proved by the UKVI) in order to issue a Certificate of Sponsorship (CoS) to their intended transferee. If the business holds a sponsor licence and has an allocation of CoSs to use this step of the process is fairly fast as a CoS takes approximately 15 minutes to issue (pro-vided all relevant personal data and job information is at hand). The intended transferee is then required to make an application for entry clearance to the UK (visa) from their home country. The timing of entry clearance largely depends on where the application is submitted – timings can vary between two and 20 working days.

Waheed: If the employee is a Citizen of countries mak-ing up the EEA, or a third-country national already possessing a work permit in a member state, he/she may be sent to France immediately, without being sub-ject to a French work permit.

However if the employee is a third-country national employed outside the EEA and Switzerland, then he/she may be subject to a work permit, if the activity in France is not an activity permissible to business visi-tors.

Certain work permits can be adjudicated in a matter of days, if the adjudicating authority is convinced of the urgent need, and urgent processing will avoid prejudice to the company and other workers. This would be the

case of a Japanese technician needed to repair an as-sembly line machine. The work is stopped because of the broken machine. In such situations the French au-thorities may even be willing to create a custom made process, if they are convinced that assembly line ma-chine are working under a Japanese license and urgent intervention of a Japanese technician may be necessary from time to time.

Mazzeschi: Only companies who have signed a Proto-col Agreement with the Ministry of Interior can apply for a fast track procedure for obtaining intra-compa-ny work permits (workers must remain hired by the sending company). Italian immigration procedure for work or business purposes varies depending on: (i) the length of the foreign citizen’s intent to stay in Italy, and (ii) the nature of the activities the individual is asked to carry out.

An individual willing to stay for less than 90 days every 180 days, to carry out activities which cannot be quali-fied as “business” should obtain a specific work permit and work visa. Italian law does not provide a clear defi-nition of the activities that can be carried out while “on business”.

Business visitors are allowed to travel in Italy (and visit the other Schengen countries) for “carrying commercial activities, to conduct negotiations and stipulate agree-ments, to attend seminars, to install, check and repair products and equipment sold or purchased on the basis of commercial and industrial cooperation”.

Any “business” trip should be more for the benefit of the sending company than the Italian entity, the visitor

should be paid by and receive its instructions from the sending company.

If the individual is a Visa National, he will need to ob-tain a business visa. This must be requested at the Dip-lomatic Italian Authority (Italian Consulate/Embassy) in the individual’s country of residence. Processing time takes between five to 15 days from the application date.

Non Visa nationals (from countries which have a visa waiver agreement with Italy and Schengen countries) can enter on business, without need of a visa.

If the foreign national needs to work and stay in Italy (i.e. if the activities cannot be qualified as “business” or in any event if the assignment lasts for more than 90 days), Italian Law mainly distinguishes between three kinds of work permits: subordinate workers, autono-mous workers, and assigned workers.

Garicano: Third country nationals not covered by the EU legal framework or by the VDE doctrine required to work in Spain need to hold a permit/visa allowing them to work in the country prior starting the activity.

The mentioned obligation operates irrespective of the business urgency, the location of the company holding the employment contract/service agreement and re-sponsible for salary and social security charges and the expected length of the stay in the country.

The need of the permit/visa permitting work is deter-mined by the nature of the activity to be performed in Spain.

Thus far, Spain has not regulated a specific visa permit for urgent business needs.

Stanley: The first point to make is that businesses based in the European Union are treated more favourably than businesses based in the rest of the world. Citizens of the EU are entitled to live and work in the UK, and nationals of other countries who are employed in other EU countries have a right under EU law to come to the UK to work as “posted workers”.

For those based outside the EU working in the UK is a complex matter, and in the light of the new offence of illegal working discussed above, needs to be examined carefully by employers. Normally, visitors to the UK are not permitted to work. Those coming to work need to be sponsored by a UK based business that is licensed to sponsor overseas workers. The time taken for this process would not allow for an urgent business need. However, it is possible to come to the UK as a business visitor, but only certain types of activity are permitted. These activities are set out in Appendix V paragraphs 5-7 of the Immigration Rules and include attending meetings, negotiating contracts, advising, consulting and trouble shooting.

Incidentally, nationals of certain countries in the world require a visa even if coming to the UK for a visit. Ap-plications for visit visas are processed in hubs based around the world, and although the processing time varies, are normally processed within a week.

Can a business send an employee to work in your jurisdiction if there was an urgent business need and how quickly could they start?



Gherson: A typical Tier 2 General visa application pro-cess starts with an employer who has a sponsor licence, conducting the Resident Labour Market Test by ad-vertising the vacancy to the resident labour market for a period of 28 days. Once the employer has confirmed that a suitable settled worker was not found, they have to request a Restricted Certificate of sponsorship from the Home Office in order to sponsor the migrant to work in the UK.

Once the certificate has been assigned, the migrant is able to submit his application and have his biometrics information taken, after which he will await his verdict.

Upon the visa being approved, a 30 day visa is endorsed into the applicant’s passport. The migrant will have to ensure he enters the UK during this 30 day period, oth-erwise a new application to transfer the visa onto a new endorsement will have to be made.

Once the migrant has entered the UK, he will need to collect his visa which is issued in the form of a Biomet-rics Residence Permit, from the Post Office in the UK within 10 days of arriving in the UK.

Waheed: Typically the work permit application is filed with the labour authorities (DIRECCTE). Once the work permit is adjudicated, the migration authorities (OFII) are informed. Such authorities pre-approve the long-stay visa with the consular authorities in the applicant’s home country. The applicant enters France and can im-mediately begin work. Depending on the work permit category, he/she may have to pass a medical examination and register with the Prefecture.

Mazzeschi: Stage 1: Work Permit application (estimat-ed processing time approximately two to three months from submission of documents).

The work permit application is filed online. This can be filed as soon as the relevant information is received and the original supporting documents are being prepared. The application is filed on behalf of the Italian host com-pany and is sent to the local immigration office having jurisdiction over the worker’s place of work in Italy. After submission of required documents authorities perform the required background checks and finally issue work permit approval.

Stage 2: Employment Visa application at relevant Ital-ian consulate, which has jurisdiction over the worker’s country of residence (estimated processing time –is one to two weeks). The relevant consulate is notified of work permit approval and issues a work visa upon the assign-ee filing the application; processing times vary between Consulates but usually takes seven to 21 days from filing. The passport is retained by the consulate during process-ing time.

Stage 3: Signing contract of stay and residence permit filing (within eight days of arrival; subject to availabil-ity of appointment at government offices; depending on employee’s chosen travelling date not accounting for any delay). Assignee travels to Italy and starts the in-coun-try formalities within eight working days of arrival: the worker must go to the Immigration Office, accompanied by a representative of the Italian company or by a dele-gate, to sign the Contract of Stay (Contratto di Soggiorno) and consequently file the residence permit application. Upon completion of this stage assignee will be compliant

Can you talk us through the visa application process?

to live and work in Italy. [Note that this would require: either declaration from a hotel regarding a long term ho-tel reservation or long term lease, registered with author-ities and housing feasibility certificate.] Foreign nation-als applying for a permit valid one year or more in Italy must execute an agreement with the Italian State, named Integration Agreement (Accordo di Integrazione). The Agreement regulates the residence permit point grading system. During their stay, in order to maintain a regular immigration status and to be eligible for permit renewal, foreigners must gain credits to reach the required level of integration in Italian society and Italian language knowl-edge (A2 level).

Stage 4: Residence permit card approval within three to four months from submission, fingerprints appointment included.

Garicano: When it is about third country nationals not covered by the EU legal framework working in Spain, we must highlight the following procedures:

Act 14/2013 legal framework

The processing time of the regular process is as follows: • Application for a residence permit allowing to

work 20 business days*. • Visa application: 10 business days. After issuance,

the employee can enter Spain and start working: Upon fulfilment of the required formalities when applicable (i.e. registration at the Spanish social security system as employee of the Spanish com-pany in case of local hire).

• Residence card application: Up to 45 calendar days. Permits granted for a period up to 6 months do not require undertaking this step.

It is possible to undertake an in-country process, (only applicable if the foreign national is under a regular status in Spain when the residence permit application is sub-mitted):

• Travel to Spain in compliance with Schengen en-try and stay requirements.

• Residence permit application: statutory process-ing time is 20 business days*. After approval, the employee will be able to start working upon ful-

filment of the required formalities when applica-ble (i.e. registration at the Spanish social security system as employee of the Spanish company in case of local hire).

• Residence card application - Up to 45 calen-dar days. Permits granted for a period up to six months do not require undertaking this step.

Act 4/2000 Legal framework

The processing time is as follows: 1. Work and residence permit application: three months vs. one month if fast track applies. 2. Visa application: 15 days. After issuance, the employee can enter Spain and start working upon fulfilment of the required formalities when applicable (i.e. registration at the Spanish social security system as employee of the Spanish company in case of local hire). 3. Residence card application. Up to 45 calendar days. Stays below six months do not require this step

Stanley: Almost all visa applications are made online through the visa4uk website. The online application has to be completed, and the fee paid. The applicant is then guided to the website of one of the partner organisations the UKVI work with worldwide who arrange to take the applicant’s biometric data and supporting documents. For UK entry clearance applications, the world is divided into six regions, each of which has a number of visa ap-plications centres (spokes), where visa applications are received, and a smaller number of decision-making cen-tres (hubs). Some types of visa applications have to have the documents sent to the UK to be processed. Once the application is decided, the applicant is informed by email, with an indication of when he or she can expect the return of their documents although the applicant will not learn of the outcome until his/her documents are re-turned. Normally, an applicant can opt for the return of documents by a secure courier.

Entry clearance is endorsed in a passport for a short pe-riod only. On arrival in the UK, the applicant has a 10 day period in which he or she can collect the “biomet-ric residence permit” from a nominated post office. It is this document that contains the full period of leave to remain.

https://www.visa4uk.fco.gov.uk/home/welcome



Michael: The options available will depend on individ-ual circumstances and will vary depending on whether the employee is an EEA national, a non-EEA national, a student, or married to a British citizen, to name a few. For simplicity, we will focus on employer sponsored vi-sas as this is one of the most common categories for skilled migrants seeking employment in the UK.

Skilled migrants seeking employment in the UK will typically require sponsorship from a UK sponsor with a suitable licence. This type of visa is covered under the Tier 2 category of the Points Based System. The two routes fall under the Tier 2 General or the Tier 2 ICT categories, which will depend on the skilled migrant’s individual circumstances and the business needs.

Individuals with permanent or ongoing offers usually undertake the Tier 2 General route and must meet the minimum salary of £20,800 or the minimum for the Code of Practice, whichever is higher. They must also meet the English language requirement. To ensure that the EEA labour market is accounted for, employers will need to conduct the Resident Labour Market Test (RLMT) which involves advertising the vacant role on two websites for at least 28 days. A list of candidates shortlisted for the final interview and any interview notes must be kept on file to prove that no resident worker was able to fill the position.

However, if the offer is fixed term, then the individual will typically apply for one of the Tier 2 ICT catego-ries with the two main types being Short-Term (up to 12 months) and Long-Term (up to five or nine years). The ICT categories do not require that the individual meets the English language requirement, however, the

applicant must have been employed for 12 months with the sponsoring organisation outside the UK. The mini-mum salary will depend on the ICT category, and it is important to note that unlike the Tier 2 General cate-gory, the Tier 2 ICT categories do not lead to Indefinite Leave to Remain.

The visa process includes two stages of the applicant is applying from outside the UK. Firstly, the migrant must be issued with a Certificate of Sponsorship from the UK employer. Once this is issued, the migrant will have to apply for Entry Clearance from their resident country. The application process includes an online form, sup-porting documentation and biometric information. When the visa is due to expire, the applicant is able to renew their visa by applying for Further Leave to Re-main, if applicable. They will be able to extend through a number of options, which typically include through the post or an in-person appointment at one of the Pre-mium Service Centres across the UK.

Gherson: If an employee has been offered a skilled job in the UK, he can be sponsored by a licenced employer before applying to come to the UK to work under the Tier 2 route.

If an employee is aged 18 to 30 and a national of Austra-lia, Canada, Japan, Monaco, New Zealand, Hong Kong, Republic of Korea or Taiwan, he can apply to study or work in the UK for a period of up to 24 months under the Tier 5 Youth Mobility scheme.

An individual can apply for a Tier 5 Temporary Worker visa if he wants to come to the UK for a short time for work experience or to do training with a licenced spon-

What are the different options available to an employee or individual looking to relocate?

sor, an Overseas Government Language Programme, research or a fellowship through an approved govern-ment authorised exchange scheme in the UK, for a pe-riod of up to 12 months.

Alternatively, an individual can apply for a Tier 1 (En-trepreneur) visa if they want to set up or run a business in the UK. This will require the migrant to have access to at least £200,000 investment funds, free to spend on business in the UK.

Mazzeschi: Autonomous work visas are subject to the availability of quotas. They can be issued for: (i) Activi-ties that are subject to a license (such as doctors, law-yers, architects, etc.): the procedure is the most lengthy one, as the foreign worker needs to register first with the relevant professional body, (ii) Freelancers and any-one willing to carry out non licensed activities, (iii) Entrepreneurs and Officers of Italian companies –authorisations for those appointed as officers (mem-bers of the Board) of Italian companies are issued the fastest and have the least requirements, but the Italian company must have been established for at least three years.

Local Hiring: A non EU citizen can be hired directly by an Italian company only if quotas are available. Quotas can be avoided (Blue Card permit) if the worker: (i) has at least a three year University diploma; (ii) he is offered a contract for at least one year and a minimum salary of at least €25,500/year.

Exception to the quota system are applicable also to Intra Company Assignments, i.e. when a highly spe-cialised worker is seconded from a US company to an Italian company or branch which is part of the same Company Group and for Service Agreement Assign-ments, i.e. secondment is made between two non-af-filiated companies in compliance to a service or sale agreement.

The Elective Residence Visa is limited to individuals who have a prolific amount of money and savings in the country of origin and who intend to live in Italy without working. The applicant’s income cannot derive from current employment or any other work activities.

Garicano: The different options shall be determined ac-cording to the main purpose of the residence in Spain. We hereby outline the most common types of permits and visas:

• Studies purposes: Student permit and visa. • Living but not working purposes: Non lucrative

residence permit and visa. • Living being authorised to work) and investing

in the country purposes: investor residence per-mit and visa if applicable.

• Performing an entrepreneurial activity in Spain: Entrepreneur’s residence permit and visa if ap-plicable.

• Working in the country as highly qualified worker purposes: Permit for highly qualified working according to the Act 14/2013, or EU blue card according to the Act 4/2000

• Working in the country under ICT purposes: national ICT Permit/ EU ICT permit according to the Act 14/2013.

Stanley: Non EEA national employees need to be spon-sored to work in the UK by a licensed employer. There are a number of categories including intra-company transfer and general skilled worker. It is very difficult for lower skilled or unskilled, non EEA nationals to obtain permission to work in the UK. However, it is possible to get clearance to come to the UK as an entrepreneur.

An entrepreneur has to invest a minimum of £200,000 in a business and create work opportunities for existing residents. The investment can be in an existing busi-ness, or in a start-up. Finally, those with £2 million to invest, can apply to come to the UK as an Investor.



Michael: Before the UK voted to leave the European Union, the UK unemployment rate had reportedly fallen to 4.9%, the lowest since July 2005. The labour market continued to strengthen in spring 2016 with record employment, with Wales having the fastest de-clining rate of unemployment over the past 12 months. However, following the result of Brexit, statisticians are predicting that the positive trend is unlikely to last. Due to the uncertainty surrounding Brexit and its potential impact on immigration, firms may potentially consider cutting back on recruitment and reducing headcount overall. Analysts predict that the decision to leave the EU will have a significant negative impact on the UK labour market and expect this data to appear materially over the next few months.

Gherson: Between the three months to February 2016 and March to May 2016, the number of people in work increased. The number of unemployed people and the number of people not working and not seeking or avail-able to work (economically inactive) fell. There were 31.70 million people in work, 176,000 more than for the three months to February 2016 and 624,000 more than for a year earlier.

There were 23.19 million people working full-time, 401,000 more than for a year earlier. There were 8.52 million people working part-time, 223,000 more than for a year earlier. The employment rate (the propor-tion of people aged from 16 to 64 who were in work) was 74.4%, the highest since comparable records began in 1971. There were 1.65 million unemployed people (people not in work but seeking and available to work), 54,000 fewer than for the three months to February 2016, 201,000 fewer than for a year earlier and the low-

est since March to May 2008. There were 903,000 un-employed men, 108,000 fewer than for a year earlier. There were 742,000 unemployed women, 93,000 fewer than for a year earlier.

The unemployment rate was 4.9%, down from 5.6% for a year earlier. The last time it was lower was for July to September 2005. The unemployment rate is the pro-portion of the labour force (those in work plus those unemployed) that were unemployed. There were 8.87 million people aged from 16 to 64 who were economi-cally inactive (not working and not seeking or available to work), 46,000 fewer than for the three months to February 2016 and 181,000 fewer than for a year earlier.

The inactivity rate (the proportion of people aged from 16 to 64 who were economically inactive) was 21.6%, the lowest since comparable records began in 1971. Av-erage weekly earnings for employees in Great Britain in nominal terms (that is, not adjusted for price inflation) increased by 2.3% including bonuses and by 2.2% ex-cluding bonuses compared with a year earlier.

Waheed: Our current unemployment rate is a little over 10%. At 35 hours, we have the shortest working week in the world. But the French labour is also one of the most productive in Europe. Despite our high unemployment rate, we are ironically lacking in highly skilled work-ers in certain areas (e.g., doctors, and IT engineers) and in other areas with middle level (e.g., IT technicians, plumbers and welders) and also at low skills level (e.g., domestic help).

Can you outline the current labour market conditions in your jurisdiction?

Michael: The UK Shortage Occupations List details the professions that are in high demand in the UK – includ-ing roles in engineering, healthcare and arts and en-tertainment – for which there are not enough resident workers to fill vacancies. The Migration Advisory Com-mittee (MAC) regularly reviews the list and will remove or include roles where necessary. Employers who wish to recruit an individual from outside the EEA to fill a vacancy that is on this list will be able to issue a Tier 2 Certificate of Sponsorship (CoS) without the need to complete a Resident Labour Market Test. It is important for employers to check the shortage occupations list for any changes prior to issuing the CoS as the MAC peri-odically reviews the list and implements new changes. For example, in November 2015, the list was updated to include nursing after employers expressed their con-cerns with the shortage in this particular sector. The MAC revisited this addition and in March 2016, they announced that, although nursing would remain on the shortage occupation list, a Resident Labour Market Test would be required before recruiting a non-EEA nurse.

Gherson: Currently the following skill shortages exist:

• Physical Scientists• Production managers and directors in mining

and energy• Civil engineers• Mechanical engineer in the oil and gas industry• Electrical engineer in the oil and gas industry• Electronics Engineers• Design engineer in the electricity transmission

and distribution industry• IT specialist managers• IT business analysts, architects and systems

designers• Programmers and software development profes-

sionals (only qualifying companies).• Environmental Professionals• Medical practitioners• Medical Radiographers• Neurophysiology healthcare scientist • Neurophysiology practitioner • Nuclear medicine scientist • Orthotist • Prosthetist• Nurses• Secondary education teachers in the subjects of

maths and science• Social worker working in children’s and family

services• Paramedics• Overhead linesworker, Linesman Erector 2

(LE2) level and above

Stanley: Assessment of skill shortages is undertaken by a committee of experts, the Migration Advisory Com-mittee (‘MAC’). The MAC makes recommendations to the UK government who normally implement their recommendations in a formal “shortage occupation list”. The list is quite extensive, and includes various types of health professionals, people with specific skills in the oil and gas industry, some electrical and production engi-neers, some IT specialists etc. Since its inception teach-ers of certain subjects have been on the shortage occu-pation list, but this is currently under consultation by the MAC. The relevance of a job being on the shortage occupation list is that licensed employers do not have to advertise within the UK before appointing an overseas worker.

What skill shortages currently exist in your jurisdiction?



Gherson: Foreign direct investment (“FDI”) raises national productivity and therefore output and wages. Foreign investors setting up companies in the UK bring in better technological and managerial knowledge, which directly raises output in their operations. Foreign direct investment also stimulates domestic firms to improve, for example through stronger supply chains and tougher competition.

The setting up of a company can produce better employment opportunities and higher paying jobs. Therefore, FDI inflows can increase the incentives to migrate. Moreover, the presence of FDI can have a positive effect on migration as local employees can be transferred by their foreign employer to the company headquarters or its other subsidiaries in the UK. The presence of these companies in the UK can encourage workers to acquire skills appropriate for the global economy, such as learning foreign languages, which would facilitate their migration.

The UK’s immigration policy promotes this positive economic effect of FDI by implementing conditions attached to Tier 1 Entrepreneur visas, for example by requiring Entrepreneurs to hire the equivalent of two full-time employees from the settled UK labour force, in order to be eligible to extend their visa and eventually to settle in the UK permanently.

Furthermore, the UK immigration policy rewards successful Entrepreneurs by creating an ‘accelerated’ three-year route for permanent settlement in the UK for migrants who set up businesses in the UK who have, over that period, created 10 new full time jobs existing for at least 12 months each for settled UK residents or

established a new business with income of at least £5 million or increased the income of an existing business by £5 million.

Waheed: The investor will usually want to take an active role in his/her investment and reside in France. The new Talent Passport will provide for immigration authorisation for investors and entrepreneurs.

Mazzeschi: Unless the investor comes from a country which does not meet the reciprocity condition with Italy, foreign investors can freely set up a business activity by:

• Establishing as a partnership (ditta individuale); • Establishing a company; • Establishing a secondary registered office (sede

secondaria) or branch (filiale) • Opening a representative office (ufficio di

rappresentanza). All the above entities can be used for the purpose of obtaining work permits for non EU workers. In some cities (Rome, Florence) the local immigration offices do not however allow applications filed through a representative office or a newly established entity.

All types of entities are established:

- in case of branch and representative office, by filing a corporate resolution and certificates proving the good standing of the parent company;

- in case of a new company, by executing the articles of association in front of a Public Notary.

Are there any immigration implications relating to foreign investors setting up a company in your jurisdiction?

Individuals who sign the deeds in the name of a foreign company will need to submit a legalised proxy proving their powers. After execution of the deed with the Notary, the company is registered with the Companies House (Registro Imprese) and is given an identification number and a VAT number when appropriate.A foreign individual can be appointed as representative of an Italian entity even if not in possession of a valid permit to live in Italy.

Only for the purpose of filing work permit applications for non EU workers to be hired or assigned to work with the company, the signatory of the application must be Italian or have a valid permit of stay and residency in the country. If a company does not have anyone meeting the above requirements, a special proxy with immigration powers can be granted to an Italian individual.

Garicano: The Act 14/2013 regulates a residency permit including the right to work in Spain for third country national having performed among others one of the two following investments:

• 1 Million Euro in a Spanish company; • or an investment in a company leading a project

of general interest for Spain declared as such by the Spanish Trade Ministry. In order to obtain the mentioned declaration the project should met one of the following conditions:

- Creation of jobs. - Investment with a substantial socio-economic

impact in the geographical area where the activity will be carried out.

- Significant contribution to scientific and / or technological innovation.

The initial permit will be granted for two years and might be extended as much as needed provided the conditions that led to the initial approval are maintained.

Stanley: Those who want merely to invest in the UK, and who have a minimum of £2 million to invest, can apply for Tier 1 (Investor) migrant status. This leads to permanent residence within five years. Those who invest more than the minimum can achieve permanent residence more quickly, thus investing £5 million leads to permanent residency in three years, and if £10 million is invested, permanent residency within two years.

Those who want to set up a company fall within the Tier 1 (entrepreneur) category. A prospective entrepreneur can apply to come to the UK to scope out the possibility of making an investment. Otherwise an entrepreneur needs to invest £200,000 in a UK business and create employment for two full-time employees already based in the UK. The amount of investment can be lowered to £50,000 in certain circumstances. This category of the rules also leads to permanent residency after five years.



Michael: It is the UK employer’s duty to prevent ille-gal working by carrying out document checks and right to work checks for all employees of any nationality. Checks on non-direct employees such as contractors are not compulsory, but recommended. This includes obtaining the employee’s original documents such as passports and any applicable visas, reviewing them in the presence of the holder and then keeping a copy of the documentation on file with a dated statement that the original documents have been seen and who has certified the copy. Sponsors are also responsible for re-porting any migrant change of circumstances during employment, such as if the assignee misses their first day of work or if the assignee’s contract of employment ends earlier than expected. Under the points-based system for UK immigration, employers found to be employing illegal workers or not complying with their sponsorship duties will face civil or criminal penalties. Non-compliance with the immigration rules may result in removal of the sponsorship licence to hire migrant workers, a fine of £20,000 for each person working il-legally, to be paid by the employer, two-year imprison-ment for knowingly employing an illegal worker and civil penalties for irresponsible or negligent recruiting practices.

Gherson: An employer, has a duty to prevent illegal working in the UK and should therefore conduct docu-ment checks (in accordance with the UKVIs criteria) to make it harder for people with no right to work in the UK to unlawfully obtain or stay in employment.

An employer can receive a custodial sentence of up to five years and/or receive an unlimited fine if they have knowingly employed an illegal worker (someone who

does not have permission or the right to work in the UK for that employer).

The financial penalty (known as a civil penalty) remains at up to £20,000 for each illegal worker if an employer fails to carry out these right to work checks correctly and is found to be employing an illegal worker.

Waheed: Third-Country Nationals1 may not conduct productive work in France, in the absence of a work per-mit. If they do, they expose their management to penal and administrative sanctions. The Third-Country na-tional may be fined €3,750, prohibited from re-entering France for up to three years, and sentenced to jail sen-tence of up to one year in case of illegal entry on French territory. The management faces multiple penal and administrative sanctions of €15,000 to €100,000 per in-fraction of illegal work, and a jail sentence of up to five years. The corporate entity risks a fine of up to €75,000 and restrictions on business. The user or the beneficiary can be held jointly liable for the non-compliance by the employer of certain obligations2. Repeated infractions are punished more severely. Furthermore, un-declared work may also result in non-compliance of other regu-lations of the labour and social security codes, which should be studied on a case by case basis.

1 Third-Country Nationals are nationals of countries other than the Member States of the European Union, European Economic Area and Switzerland.2 Adoption of Decree of 30 March 2015, in application of the law of 10 July 2014, and the transposition of the directive 2014/67/UE of the Parliament and Counsel of 15 May 2014.

Can you outline any penalties or restrictions for non-compliance with immigration regulations?

Mazzeschi: Consequences for a foreign national who has entered, or is residing, illegally in Italy

Those who enter illegally and/or stay illegally are sub-ject to a fine of €5,000 to €10,000. Fines are applied in the following cases:

• Entering Italy without passing through border controls, unless due to force majeure;

• Entering Italy without a passport or valid iden-tification document, by use of a false document or by obtaining a new passport for the purposes of staying beyond the time allowable;

• Entering Italy without a visa, for those foreign-ers who must have a visa to enter;

• For non-visa nationals, remaining in Italy be-yond the 90-day allowance for tourism/busi-ness/study purposes;

• For visa nationals, remaining in Italy after the short-term visa for tourism/business/study purposes has expired;

Foreign nationals in possession of a residence permit or equivalent document issued by another Member State, failing to comply with the short stay registration formalities within eight working days from arrival are subject to a fine of €103 to €309.

Consequences for an Italian company’s officers and managers

Assisting with the entrance of illegal immigrants Unless the fact constitutes a more serious offence, ac-tions aimed at procuring illegal entry of foreigners into the Italian territory or any other State for which the in-dividual has no permission to enter, shall be punished by a term of imprisonment from one to five and a fine up to €15,000 for each individual. An exception exists if the foreigner is in need of rescue and humanitarian relief.

The above penalties are increased to five to 15 years imprisonment (the €15,000 fine per individual still ap-plies) if in addition to the above mentioned crime, one of the following occurs:

• the fact concerns entry or illegal stay in the state’s territory of five or more individuals;

• in order to procure entry or illegal stay, the in-dividual’s life or safety was endangered;

• in order to procure entry or illegal stay, the in-dividual was subject to inhuman or degrading treatment

• the illegal act is committed by three or more individuals acting together or by using inter-national transport services, or counterfeited/altered/illicitly obtained documents

• If the perpetrators of the crime carry weapons or explosives

Garicano: For the company: Art. 52 e) LO 4/2000. “for employing a foreigner holding an authorisation which does not allow him/ her to work on the job posi-tion offered” Sanction applicable: fine up to €500. Cancellation: six months from infraction.

Article 54 d) LO 4/2000. “for employing a foreigner without having obtained the corresponding work and residence permit”. Sanction applicable: Fine from €10,001 to €100,000. Cancellation: three years from infraction.

For the employee: “to be working in a position, activity sector, or geo-graphical area not authorised by the work and resi-dence permit granted.” Sanction applicable: fine up to €500.Cancellation: six months from infraction.



Michael: Since the establishment of the European Union, the UK’s population has steadily increased and then eventually grew exponentially from 2000 onwards. EU migration has more than doubled since 2010 and is nearly half of all foreign born migration to the UK. The government sought to address these issues in an attempt to reduce immigration by way of restricting ac-cess to benefits and continually imposing stricter rules on immigration overall. The result is Brexit, which was very much a referendum on immigration.

What we expect to see as negotiations take place may eventually lead to a decrease in migrant flow and the implementation of increasingly stringent immigration policies for both Europe and the non-EEA population. A new immigration system will need to be launched in order to account for the European population, which may impose visa requirements for EEA nationals. Po-tentially, all EEA nationals already in the UK may be ex-empt from any new regulations and policies, although the government has yet to formally confirm this.

Although we are inevitably left with more questions than answers post-Brexit, we would encourage employ-ers to act now in preparation for the upcoming changes and challenges ahead and start thinking about their EEA population. Leaving the EU will require a series of reforms which have yet to be decided and we expect to be able to guide our clients as the answers to these questions slowly unfold.

In an ideal world, I would like to see an immigration system which encourages people to come to the UK and help continue to grow the economy. A key demo-graphic is students, and since the post study route is be-

ing closed down, there has been no real option for them to remain here beyond their courses ending without a Tier 2 visa. I would like to see an immigration route established for this demographic to encourage the best and brightest to study here and remain here and con-tribute positively to the economy following the comple-tion of their studies.

Gherson: Immigration continues to be a hot topic in the UK, not least in light of the Brexit Referendum on 23 June 2016 and the Home Office’s response to the Migration Advisory Committee’s report recommend-ing steps to tighten the Tier 2 visa route. Whilst limited changes to the visa route were introduced from April 2016, more significant changes will be introduced from Autumn 2016 and April 2017.

Changes over the next year will increase sponsorship costs and force employers to conduct a more rigorous cost-benefit analysis when considering international assignments, the changes do not go as far as we had anticipated. For example there were no changes to the work rights of Tier 2 family members or to the conces-sions available to employers hiring UK graduates, both of which were considered. The use of transitional peri-ods has also softened the blow for employers.

It is also clear that UK immigration regulations are be-coming progressively more stringent. We have seen in-tensified focus from the Home Office, particularly with regards to compliance issues. Since the introduction of the points-based system, there has been an expectation from the government that employers are on top of their own corporate immigration matters. Corporate entities have been directly affected by this, via an increase in

What key trends do you expect to see over the coming year and in an ideal world what would you like to see implemented or changed?

unannounced compliance visits from the Home Office.

This shift in responsibility for corporate immigration matters has arisen alongside a general focus from the UK government to reduce net migration. This is by no means a new concept; however, we have noted that the dichotomy of the government wanting to achieve this but also to bolster the economy has resulted in a situa-tion where the two objectives are at loggerheads. They have identified the technology sector as one that, in or-der to grow and prosper, is in need of expertise from overseas – a plan hindered by immigration-limiting policy.

Therefore, in an ideal world, we would like to see the Home Office making UK immigration regulations less stringent and more favourable towards those genuine employers who require migrants to allow their business to thrive and grow economically.

Waheed: The EU Commission has announced that it will propose a directive which will replace the existing directive which has created the EU Blue Card scheme. The Commission considers that the current scheme has not been transposed in national laws in a harmonious manner. The initial objective was to have an EU wide scheme to permit the EU member states to compete with other countries which have been historically more attractive to high skilled immigration, USA, Canada, Australia, and the UK. However the non-harmonious application of the scheme is resulting in member states competing with each other, at the best and non-appli-cation of the scheme, at the worse. A comparison in the variation of national versions of the EU Blue Card scheme can be seen with the following comparison tool:

The new proposal of the commission will aim at the fol-lowing improvements to the EU Blue Card scheme:

• Render the salary threshold more flexible• Limit the use of labour market tests• Lower the minimum employment period from

12 months to 6 months• Increase the maximum validity period from4 to

5 years (which then opens rights to permanent settlement)

• lower the skill level• Make this scheme available to refugees

For more details on the Commission’s proposals, see their press release.

Mazzeschi: Labour market conditions have started to improve after several years of recession, but the recov-ery from the recent economic crisis remains very un-certain. Bank of Italy estimates that the country’s GDP should be 1 % in 2016 and 1.5% in 2017. The unemploy-ment rate has started to decrease from the 13% peak, reached in November 2014 and it is expected to be 11% in 2016 and continue to decrease in 2017. Nevertheless, it remains above that of the Euro Area.

The Jobs Act represents an important step forward to-wards the reduction of long-term inequality and the elimination of segmentation. This is achieved by in-creasing incentives for the creation of open-ended jobs under the new contract with a gradual increase in protection, and extending the coverage of out-of-work benefits.

The Jobs Act also includes important measures to in-crease the resources devoted to active labour market policies, and strengthen their effectiveness. These are an essential complement to the efforts made to promote open-ended contracts and universal unemployment benefits. Effective activation policies help connect un-employed and inactive people with jobs. They focus on the motivation and employability of jobseekers while improving their job opportunities. These elements need to be managed by strong labour market institutions and policies, which are the keystone of any successful acti-vation strategy. At 0.41% of GDP, Italy’s spending in active policies in 2013 was well below the OECD average (0.53%) and that of most countries in Continental Europe.

Activation policies need to be strengthened in Italy and made more efficient. The planned creation of the

http://ec.europa.eu/immigration/bluecard_en

http://europa.eu/rapid/press-release_IP-16-2041_en.htm



Unique Agency for Active Policies (ANPAL), envisaged by the recently-issued Jobs-Act decree on the matter, is a significant step forward in that direction.

A key strategic element of this reform is the attribution of a central role in the coordination of regional action to the new agency.

It remains to be seen whether this re-organisation is sufficient to be effective, in particular insofar as it falls short of fully integrating active and passive policies, at least until the completion of the constitutional reform.

Source: OECD Employment Outlook 2015

Garicano: We expect to witness the implementation of the Directive regarding EU ICT in all the relevant countries and to the approval of a new regulation re-garding the EU blue card.

The implementation of the ICT Directive would mean the smoother transfer of foreign nationals holding an

EU ICT permit within the member States.

The success in the implementation will imply the for-eign nationals hold a sole permit instead of facing the obligation of obtaining a permit for every single EU country, and hence, they would be authorised to work on assignment in different countries.

The new Blue card regulation should mean the possibil-ity for the highly qualified workers holding an EU blue card issued by a member state to work in different EU countries without being obliged to apply for a different permit in every single member state. In the same line, the conditions to qualify for this type of permit should be more competitive compared to national regimes and other jurisdictions.

These two trends would convert the EU to be a more attractive destination area attracting talent and invest-ment.

The implementation of the ICT Directive would mean the

smoother transfer of foreign nationals holding an EU ICT permit

within the member States. - Ana Garicano

immigration law – europe 2016 - bindmans llp › uploads › files › documents › ... · of...

Documents