SOUTH AFRICA: Major Changes in Immigration Law and Regulations

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There have been major changes in South African immigration law and regulations.

The 2007 and 2011 Amendments to the Immigration Act, 2002, along with a revised set of regulatory provisions, took effect May 26, 2014, along with the appointment of a new Minister of Home Affairs.  There are significant technical shortcomings in the regulations.  As a result, substantial corrections by the Department of Home Affairs are expected.

This summary focuses on the content and impact of the new regulations in the short term.

Visas Versus Permits

There is one significant change in the language: “Permits” are now known as “visas.”  This is the case regardless of the period of admission or the place of issuance.  And the term “permit” now refers exclusively to the authorization granted to a person to take up permanent residence.  Nothing else turns on this change in terminology.

Temporary Residence Visas

Visas for the self-employed, the retired, and the independently wealthy require that the applicant show the existence of a specific investment or income level.  None of these amounts has been gazetted.  As a result, the applicant does not know what amount is required to be shown and the Department cannot adjudicate the application.  For now, these visas are “not available.”

The critical skills work visa is intended to facilitate securing “critically needed” skills for the South African economy.  However, the list of critical skills also was not gazetted.  So similarly, there can be no applications for a critical skills visa at this time.

The general work visa—the backbone of the work visa regime—now requires that the Department of Labour issue a certificate recommending the approval of the visa.  But what must be submitted to the Department of Labour to get that recommendation remains unknown.  Consequently, general visas are also “inaccessible” at this time.

Intra-company transfer work visas can be applied for.  However, two significant changes have been made to this category of work visa.  They will now be issued for four years, instead of the former two years; persons on two-year transfer visas can apply for an extension for a further two years, but they cannot be extended beyond that.   The other important change is that an employee being transferred to South Africa to establish a branch office can now also apply for a transfer work visa.

Transitional Arrangements

The regulations do not allow for any period of transition, however brief, between the old and the new permit regimes.  Unless the Department “intervenes”—as is already happening in some respects—this may cause all sorts of troubles and unnecessary embarrassment to clients, service providers, and the Department of Home Affairs.

Visa Processing Changes

Persons who are in the country now on short-term visitor visas (for periods of three months or less) cannot apply, from inside the country, to change to any other category of visa unless there are “exceptional circumstances.”  The list of what constitutes “exceptional circumstances” is very limited.  Such persons must now return home and apply at their nearest South African Embassy or High Commission for their new visas.

This change does not affect the position of foreign nationals who are already in South Africa on any long-term visa, such as for work, business, or study.  They can apply from inside the country to extend or change status.

Another change is that all permit applications submitted inside the country must be filed no later than 60 days before the current permit expires.

In a major overhaul of the service delivery process, the Department of Home Affairs has outsourced to the private sector the acceptance of visa applications, and ancillary functions.  This is the case both inside and outside the country.  The service provider will charge a fee to visa applicants for this service, which will include the option of a “Premium Lounge” service (a business-class lounge).

A further development is that applicants must submit all visa applications in person to allow for the capturing of biometric data.  The results of the visa applications can be collected by representatives.

People Now Overstay Their Periods of Admission At Their Peril

A major enforcement change comes in the form of the penalties that apply for overstaying the term of a visa, effective immediately.  The previous fine no longer applies.

A person who overstays the term of his or her visa—by as little as a day and up to 30 days—”may be declared undesirable” and excluded for 12 months.  If it happens again within a 24-month period, the person faces exclusion for two years.  Overstaying more than 30 days may result in “undesirability” and exclusion for five years.  Although the regulations imply that there is discretion, the directive to Immigration Officers suggests that this will be enforced rigorously.

In another enforcement-related change, the fines for contraventions of the Immigration Act have increased significantly.

Persons Seeking Asylum in South Africa

Under the previous Act, persons disclosing at a port of entry their intent to apply for asylum were issued asylum transit visas and given 14 days to report to a refugee reception office.  Under the Amendment Act, asylum seekers now have five days to report to a refugee reception office or face detention and removal as undocumented migrants.

In addition, persons who are “fugitives from justice” do not qualify for visitor visas or asylum transit visas.  This directly contradicts the Refugees Act, which says that no one may be denied entry to the Republic if they are fleeing persecution.

Minors Traveling Overseas Must Have Unabridged Birth Certificates and Their Own Passports

All children entering South Africa now must have unabridged birth certificates with them (which presumably must include sworn translations if these are not in English) whether or not they are travelling with their parents.  This measure takes effect July 1, 2014.  It applies even if the parents and children are South Africans.

Finally, all children must travel on their own passports.  Inclusion on a parent’s passport is not allowed.

ABIL Members Included in Lawdragon’s List of Top 20 U.S. Immigration Lawyers

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The following ABIL members were included in Lawdragon’s list of the top 20 U.S. immigration lawyers:

FRANCE: Draft Law on Rights of Foreigners

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The government has finalized its draft of the Law on the Rights of Foreigners in France.

The government has finalized and published its draft of the Law on the Rights of Foreigners in France, which is a significant overhaul of the Code of Entry and Stay of Foreigners and of Asylum (CESEDA).  The new law would increase the use of multi-annual permits to stay, create new immigration categories, and eliminate the work permit requirement for assignments of less than three months.

Below are highlights of the major changes of interest to human resource and mobility managers.  The draft law is not yet scheduled for parliamentary debate, which is expected to occur in upcoming months.

Purpose of the Draft Law

The government aims to reduce the workload for civil servants and the compliance burden on business, and to attract qualified foreign nationals and investments to France.  The draft law achieves these three goals by: (1) increasing the use of multi-annual permits to stay, thus reducing the renewals of the current one-year permit to stay (Carte de Séjour Temporaire); (2) creating a new multi-annual “supra” category, the Talent Passport, which overhauls many existing categories and creates some new ones that will be of interest to business; and (3) eliminating the temporary work permit (APT) requirement for foreigners assigned to France for less than three months.

Increased Use of Multi-Annual Permits

Currently, most third-country nationals are issued a one-year renewable permit to stay.  The renewal process requires multiple personal appearances and issuance of temporary documents (récépissés).

The draft law provides for the issuance of multi-annual permits with a maximum validity of four years, after the expiration of the initial one-year permit, to the extent the third-country national has demonstrated his or her willingness to adhere to French cultural and republican values.

The draft law provides that trainees, self-employed professionals, and visitors will not benefit from the multi-annual permit.

Talent Passport

Currently, there are several categories to attract talent and investment.  The draft law merges the existing categories into the Talent Passport.  This “supra” category includes a total of nine categories with a maximum validity of four years:

  1. Young Qualified Graduate (jeune diplômé qualifié): Requires: (i) a master’s or doctorate-level degree earned in France or sponsorship by an employer qualified as an Innovating Start-Up (jeune entreprise innovante) by the Fiscal Code; (ii) a French employment contract; and (iii) a threshold salary determined by decree.  This is a new category.
  2. Highly Qualified Worker (travailleur hautement qualifié): Requires: (i) a three-year university degree or five years of experience; (ii) a French employment contract of at least 12 months; and (iii) a threshold salary determined by decree.  This category absorbs the previous European Blue Card without substantial change.
  3. Inter-Company Transferee (ICT) (salarié en mission): Requires: (i) an intra-group transfer; (ii) a three-month prior employment; and (iii) a threshold salary determined by decree.  Under the existing scheme, the three-month prior employment is not required when the ICT becomes a French employee.  This category absorbs the previous ICT category without any other substantial change.
  4. Scientist (chercheur): Requires: (i) a master’s level or higher degree; (ii) tasks of research or teaching at the university level; and (iii) an agreement with a government-approved body.  This category absorbs the previous Scientist category, with no significant change.
  5. Entrepreneur (créateur d’entreprise): Requires: (i) a master’s-level degree or five years of experience; and (ii) creation of an enterprise in accordance with criteria to be determined by government decree.  This is a new category.
  6. Investor (investisseur): Requires a direct investment in infrastructure, as determined by government decree.  This category absorbs the previous Exceptional Economic Contribution.  The amount of investment is expected to be lowered from €10,000,000 to €500,000 and the number of jobs to be created from 50 to 10.
  7. Executive Officer (mandataire social): Requires: (i) nomination of a legal representative or executive officer of an entity registered in France; and (ii) a threshold income to be defined by decree.  This category was previously covered under Competence and Talent and does not change substantially.
  8. Artist (artiste): Requires: (i) a contract approved by the cultural (DRAC) or labor (SMOE) authorities for an artistic or cultural activity; and (ii) threshold compensation to be defined by decree.  This preexisting category is being merged here without substantial change.
  9. Foreigner Renowned Internationally in a scientific, literary, intellectual, educational, or sports domain (étranger ayant une renommée internationale dans un domaine scientifique, littéraire, intellectuel, éducatif, ou sportif): Requires: (i) international fame; and (ii) an activity in France in one of the stated areas.  This pre-existing category is being merged here with changes to be determined by implementing regulations.

Activities 1, 2, 3, 8, and 9 may be exercised without a separate work permit.  In case of involuntary loss of employment, the permit will be extended for one year.  Beyond that, the validity will be limited to the remaining period of unemployment benefits.

The accompanying spouse and minor children reaching majority will be issued a multi-annual permit for the duration of the validity of the principal holder of the Talent Passport.  Such derivative permit will allow work.

Elimination of the Temporary Work Permit (APT)

The draft law proposes the elimination of the temporary work permit currently required for assignments of less than three months.  The impact study accompanying the draft law states that short assignments need to be declared under existing regulations, which are adequate tools to verify a posteriori the legality of such assignments.  The elimination of the temporary work permit is a controversial proposition and will be debated in the months to come.

TURKEY: Visitor Visa-on-Arrival System No Longer Available as of April 10, 2014

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Turkey’s Ministry of Foreign Affairs has announced that as of April 10, 2014, the visitor visa-on-arrival system will no longer be available. The visa-on-arrival system allowed persons of certain nationalities to purchase their visitor visas in Turkey at the airport upon arrival. As of April 10, all nationals who had used this system must use the electronic visa system instead.

The move toward elimination of the visa-on-arrival is based on the new Law on Foreigners and International Protection (Law No. 6458). This law also mentions in Article 13 that as of the same date, border authorities in exceptional circumstances may issue a visa-on-arrival for up to 15 days. So it is not clear if the announcement of the elimination of the visa-on-arrival system means that this 15-day visa option will be eliminated as well, or will be extremely limited.

Also specified in the new law is a new special visa exemption for those tourists who arrive at sea ports of entry and whose tourist activities will not exceed three days.
In April 2014, many changes are expected in entry processing, residence permits, and visas.

TURKEY: New Law on Foreigners & International Protection Takes Effect on April 12, 2014

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The new “Law on Foreigners and International Protection” (Law No. 6458) takes effect April 12, 2014.

This new law will make vast changes to residence permit eligibility and procedure, as well as in visa and immigration processing. Unfortunately, the Turkish Ministries of Interior, Labor, and Foreign Affairs have released little clarification on implementation. As of late March, queries to the Interior Ministry offices indicated that the Ministry is not prepared to implement all the changes listed below.

A sample of the procedural changes include application of the 90-of-180-day rule to be extended to business visitors, the requirement that passports expire no earlier than 60 days past the validity of the visa sought, and proof of medical and financial support while in Turkey. Also, sticker visas obtained at the border will be replaced by an electronic visa system for eligible visitors. Substantive changes include new harsher procedures and penalties for deportation and a ban on re-entry of foreigners who are out of status or not abiding by the terms of their stay. The law requires the creation of a new Immigration Administration General Directorate within the Ministry of Interior.

The most significant changes will be with regard to residence permits, as described below:

Residence permits as of 90 days: Residence permits are no longer required unless the person remains in Turkey 90 days or more (certain restrictions apply). Previously a permit was required once a person was in Turkey 30 days or more.

Ministry of Labor to issue work permit inclusive of the residence permit: The new version of the work permit will also substitute for a residence permit in Turkey. At this point, it is not clear when the Ministry will start issuing the new version of the work permit. In the meantime, clients must be prepared to file for a residence permit as usual until further notice.

New residence permit categories and filing for most types of initial residence permits at consular posts: The new law outlines several new residence permit categories and will require that almost all initial residence permits be filed via a consular post outside of Turkey, not domestically at the police office. These residence-permit categories include but are not limited to:

  • Initial dependent residence permit (now also including dependent adults)
  • Initial tourist residence permit
  • Residence permit based on possession of immovable property
  • Residence permit based on “establishing a business or commercial connections”
  • Residence permit based on participation in an “in service training program”
  • Long-term residence permit

Consular posts have not yet released information on the procedures or evidence necessary to file these residence permit applications. It is also unclear if the previous domestically filed initial residence permit categories will still exist after April 11, 2014 (e.g., initial dependent residence permit, funds-based residence permit).

Significant changes in residence permits for dependents: As mentioned above, there are changes in the requirements for dependent residence permits as well as a new category for adult dependent residence permits. The new law also will require a showing that the sponsoring working principal spouse (or Turkish citizen spouse) has had no record of a “crime against family” in the previous five years. It also states that the principal spouse must show appropriate accommodation for the dependents.

This article does not include information on all changes the law proposes, but focuses on the ones most applicable to corporate immigration/global mobility of employees. Again, there are no details yet available on the manner and timing of implementation of the new law.

UNITED KINGDOM: Prime Minister Pulls Back on Proposed Immigration Restrictions

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Prime Minister David Cameron has scrapped his proposal to institute an “emergency brake” on immigration from the EU to the United Kingdom (UK). In January, it was reported that German Chancellor Angela Merkel expressed her willingness to discuss curbing EU migrant access to benefits with the Prime Minister, but warned that Germany was prepared to see the UK exit the EU rather than allow the UK to circumvent free movement.

Mr. Cameron’s inability to sway the EU to his position, as well as Conservatives’ concerns about debating immigration in the lead-up to the general election, have resulted in an odd calm for the moment. Most recently, and notably, the Prime Minister failed to include immigration in his six themes for the Tory manifesto despite a significant number of polls from a variety of sources showing it as one of the top issues across many demographics.

In a recent YouGov survey, when Britons were asked to list the most important issues facing the country, 52% of those surveyed cited immigration. However, when those same individuals were asked to state the most important issues they and their families faced, immigration dropped to fourth place at 20%. A January 2014 Ipsos MORI report cited a similar survey, which showed that a far greater percentage of Britons (around 70%) viewed immigration as a national issue, but only about 20% viewed immigration as an issue where they lived.

NETHERLANDS: Business Immigration Laws and Regulations Amended on a Wide Scale

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Laws and regulations relevant to business immigration were amended on a wide scale on January 1, 2014.

Most of the new changes improve options to deploy foreign staff in the Netherlands, such as the introduction of short-stay highly skilled migrant (HSM) permits. Some changes, however, are restrictive, such as the increase of the term for obtaining full labor market access (from 3 to 5 years). An incidental legislative fluke raised considerable concern over work permits for business meetings. That was temporarily mended. More about this below.

Business Meetings

On January 1, 2014, the government, by mistake, drastically limited business travel. Due to a legislative error, the work permit exemption for business visitors was limited to a single business trip per year. Although the period during which the exemption applies was extended from 4 weeks (within a period of 13 weeks) to 13 weeks (within a period of 52 weeks), the word “uninterrupted” was added so that, effectively, only one trip per 52 weeks is allowed, whereas under the existing rule several trips per year were allowed. Given that business is generally not conducted in one trip, this amendment seemed to work out in practice as a limitation rather than an extension of the existing possibilities. Kroes Advocaten, together with several other parties, including the Amsterdam Expatcenter, lobbied for a quick solution. On January 10, the Ministry of Social Affairs confirmed that until further notice, the work permit exemption for business meetings remains as it was before January 1. This means that business meetings are allowed again for a period of up to 4 weeks, whether interrupted or not, within a period of 13 weeks. In the meantime, the Ministry is working on a more permanent solution.

Intra-Company Transferees: Salary Threshold for Trainees Introduced

Multinationals transferring trainees to their entities in the Netherlands must offer their trainees at least the gross annual salary of €38,145 (€3,205.44 per month) to receive a work permit. This regulation took effect January 1, 2014. Under the existing rules, the salary requirement was at “market level” without a specific threshold amount.

Highly Skilled Migrants: Work Permits for Short Stays

As a residence permit scheme, the HSM scheme did not until recently offer solutions for short stays (fewer than 90 days). A temporary pilot for short stays was launched in 2013 and was successful. It was introduced as a permanent option on January 1, 2014. The Labor Office issues a work permit for up to 3 months for work as a highly skilled migrant. In addition, employees from non-visa exempt countries must apply for a Schengen visa. As with the regular HSM scheme, the employer must have recognized sponsor status, and the HSM salary thresholds also apply; i.e., employees under the age of 30 must earn a gross monthly salary of at least €3,205.44, and employees of 30 years and above must earn €4,371.84.

New Work Permit Exemptions

Employees of multinationals transferred temporarily for the purpose of attending in-house company training in the Netherlands are, as of January 1, 2014, exempt from the work permit requirement. The maximum period for this work permit exemption is 12 uninterrupted weeks within a period of 36 weeks.

Revision of the Employment of Foreigners Act

The Employment of Foreigners Act was revised as of January 1, 2014. Work permits will only be issued for a maximum period of 1 year; previously it was 3 years. The Labor Office also no longer must assess whether registered job applicants are available and suitable for the vacancy. The Labor Office can simply refer to any job-seekers registered for the job function in the database to refuse a work permit application, regardless of whether these job-seekers are actually fit for the job or even interested. The Ministry of Social Affairs can also set a quota each year for the maximum number of work permits that can be issued for a specific sector.

Another change is that foreign workers who have held a residence permit for the purpose of working for 5 consecutive years will no longer face any labor market restriction. Under the previous law, the restriction could be lifted after 3 years of stay.

EU Nationals: Registration at Immigration Office No Longer Required

European Union (EU) nationals no longer need to register with the Immigration Service (IND) and obtain a sticker in their passport confirming their legal stay as an EU citizen. A valid passport or identity card is now sufficient proof of legal stay in the Netherlands. The new rule also applies to nationals of the European Economic Area and Switzerland.

Biometrics Introduced: Fingerprints

Residence permit applicants no longer must provide a passport photo and a signed photo form. Instead, they must visit an IND office where a digital passport photo is taken. In addition, fingerprints are taken, which were not required previously. These biometric data will be stored in a database of the IND pursuant to EU regulations. Applicants with a nationality requiring an entry clearance visa (MVV) must have their fingerprints taken by the relevant Dutch representative abroad, and provide a passport photo that will then be scanned on site, presumably with the exception of Dutch posts that have equipment to take digital passport photos.

Romanian and Bulgarian Nationals Enter the Dutch Labor Market

As of January 1, 2014, Bulgarian and Romanian nationals are free to enter the Dutch labor market. Employers no longer need a work permit for them. Bulgaria and Romania joined the EU in 2007, but pursuant to transition provisions the Dutch government was allowed to postpone the free movement of workers from these countries until January 1, 2014. On July 1, 2013, Croatia became the 28th member state of the European Union. Under comparable transition measures, the Dutch government has kept the work permit requirement in place for Croatian nationals.

Highly Skilled Migrants/EU Blue Card: New Salary Thresholds and Government Fees

The salary threshold for highly skilled migrants wishing to obtain an EU Blue Card residence permit in 2014 is €61,470 gross per annum.

The salary thresholds for highly skilled migrants (knowledge migrants) and EU Blue Card applicants have been slightly raised as of January 1, 2014. The HSM salary threshold now applies monthly and, in addition, the salary must be transferred monthly to a bank account in the name of the highly skilled migrant.

The government application fees for HSM and EU Blue Card applicants were raised as of January 1 to €861. The IND fee for renewals of these permits is now €360.

The link to the chart below shows the gross salary amounts that apply as of January 1, 2014.

Download

ITALY: Deadline Extended for Quota Applications for Some Worker Categories

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The Italian government has extended until December 31, 2014 (previous deadline was August 20, 2014) the deadline for filing quota applications for workers trained abroad and for conversion of CE permits issued by other EU countries into subordinate or autonomous work permits.

ITALY: New Guidelines for Internships for Non-EU Nationals

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The Italian government has released new guidelines for the activation of internship programs for foreign nationals. The guidelines provide Immigration Offices and the Italian Regions with instructions clarifying the criteria to be met by non-European Union nationals coming to Italy for internships.

This is not expected to have a major impact on immigration in Italy but should simplify the evaluation of applications for internship visas, which have always represented a gray area within the Italian immigration system.

NETHERLANDS: Highly Skilled Migrant Scheme

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Additional conditions concerning salary payment will take effect January 1, 2014, for the highly skilled migrant residence permit. The main condition to meet the gross annual salary threshold is changed to a monthly salary threshold. The highly skilled migrant must receive the applicable amount (excluding 8% holiday pay, which can still be paid annually) monthly in his or her bank account. The change is expected to affect highly skilled migrants wanting to take unpaid sabbatical leave, and other types of unpaid leave such as parental leave.