Every 2 months, our experts from around the world put together an Update on the law on immigration & global mobility, setting out recent changes to the law.
Update on COVID-19 restrictions on travel
Argentina’s borders will remain closed until 31 October 2021 inclusive for non-resident foreign nationals.
Since 1 October 2021, citizens or residents of neighbouring countries (Chile, Bolivia, Paraguay, Brazil and Uruguay) who have stayed in those countries for the last 14 days prior to entering Argentina are entitled to enter (without restrictions if they have been fully vaccinated at least 14 days before entering).
The rules on travel and quarantine in Argentina have been amended.
Until 31 October 2021 the following applies:
1. The National Civil Aviation Administration (ANAC) will arrange weekly quotas on passenger flights for the return to Argentina of Argentines and resident and non-resident foreigners (who have been exceptionally authorised to do so by the National Migration Directorate). The following quotas apply:
- From 1 to 3 October, the weekly quota will be 16,100 passengers.
- From 4 to 11 October, the weekly quota will be 21,000 passengers.
- From 11 October until 14 days after the threshold of 50% of the Argentinean population fully vaccinated is reached, 28,000 weekly passenger seats will be authorised.
- 14 days from the date on which Argentina reaches 50% full vaccination, as announced by the Argentine Ministry of Health, no quota of any kind will apply.
2. Until 31 October 2021, the following categories of people are authorised to enter Argentina:
- carriers or crew members of any nationality;
- nationals and residents of Argentina;
- non-resident foreign nationals expressly authorised by the National Directorate of Migrations to carry out a work or commercial activity; to fulfil an official diplomatic mission; to participate in sporting events;
- foreign nationals declared to be in transit to other countries who will remain at the international airport for less than 24 hours.
- non-resident foreigners who are direct relatives of Argentine citizens, and who temporarily enter our country for reasons of necessity, and do not require a visa by virtue of bilateral agreements or unilateral measures.
- citizens or residents of neighbouring countries, who have been fully vaccinated and stayed in those countries for the last 14 days prior to entering Argentina. Citizens or residents of neighbouring countries who are not fully vaccinated may enter Argentina as long as their entry is not for tourism reasons, with prior authorisation from the National Directorate of Migration.
3. From 1 November 2021 non-resident foreigners will be authorised to travel to Argentina for any reason as long as they have been fully vaccinated and take a diagnostic test for COVID-19 72 hours prior to international travel and receive a negative result to submit with the Electronic Affidavit.
Conditions for entry to Argentina
Electronic Affidavit for entering Argentina
All travellers must submit an Electronic Affidavit. It is available on the official site of the National Directorate of Migrations and must be completed 48 hours before boarding.
All travellers must take a diagnostic test for COVID-19 72 hours prior to international travel and receive a negative result to submit with the Electronic Affidavit.
All travellers must carry out a COVID-19 test upon arrival at the airport until 1 November 2021. Those who test positive must then take a PCR test and must comply with mandatory isolation in places provided by the national authorities at their own expense, until a safe transfer to their place of residence is carried out, if applicable.
Those who test negative upon arrival, must comply with mandatory isolation for seven days at the address reported for this purpose in their electronic affidavit.
Mandatory isolation will only be completed with a second negative test carried out seven days after landing.
The cost of PCR test upon arrival and PCR test for genomic sequencing must be borne by the person entering the country.
Exceptions to the quarantine requirement (introduced by Administrative Decisions 2252/20 and 932/2021) will remain in place for:
- international carriers and crew members in the exclusive exercise of their activity;
- athletes, only to participate in sporting events authorised by the National Directorate of Migrations, with protocols proposed by the organisers, approved by the national health authority and supervised by the Ministry of Tourism and Sports.
- Argentines and resident foreign nationals who have travelled abroad and,
- non-resident foreign nationals who have been authorised to travel to Argentina by the National Directorate and
- citizens or residents of neighbouring countries, who have stayed in those countries for the 14 days prior to entering Argentina, provided that they are fully vaccinated at least 14 days before entering, have a negative PCR test result performed within 72 hours before boarding and test negative on another PCR test taken between the fifth and seventh day following arrival in Argentina.
Other and local conditions
Other requirements relate to special traveller insurance for non-resident foreign nationals, the use of the CUIDAR app for Argentinian nationals or residents or for foreign nationals, the requirements of local destination jurisdictions in Argentina and the strict control of these measures by local jurisdictions.
The national health authority may adapt the requirements to the evolving epidemiological situation.
COVID-19 update on consular procedure and immigration
The suspension of consular visa applications remains in force until 1 November 2021. Argentine Consulates abroad are only authorised to issue transitory or temporary visas with a special authorisation from the National Directorate of Migrations.
German Capoulat, Partner, Funes de Rioja & Asociados
Changes to COVID-19-related entry to Austria
Austria has introduced new entry conditions for travellers, which came into force on 15 September 2021.
Proof of vaccination for entry regulation purposes is satisfied when:
- The second vaccination was administered no longer than 360 days ago and 14 days must have passed between this and the first vaccination.
- 21 days have expired since vaccination with a single-dose vaccine, and vaccination was not administered longer than 270 days ago.
- The traveller is vaccinated at least 21 days after a positive SARS-CoV-2 PCR test (or evidence of neutralising antibodies) and no more than 360 days ago.
- The traveller has received further (‘booster’) vaccination, no more than 360 days ago and at least 120 days have elapsed between the further vaccination and any of the above vaccinations.
People entering Austria by plane from Cyprus (the Austrian legislator excluded the previously restricted entry from Netherlands and Spain from this regulation) must present a negative PCR test (a negative antigen test will not be accepted as proof), proof of (complete) vaccination or proof of recovery.
The regulations regarding entry from countries listed in Annex 1, from a virus-variant country listed in Annex 2 or any other state not listed in either Annex 1 or Annex 2 remain the same as in our last update.
Birgit Vogt-Majarek, Partner, Lisa Hittinger, Associate, Schima Mayer Starlinger Rechtsanwälte GmbH
New residence permit for foreign graduates to search for a job
After their studies in Belgium, foreign graduates now have the right to apply for a 12-month non-renewable residence permit to look for a job or set up a business in Belgium.
During this ‘search year’, they are allowed to work without their employer having to apply for work authorisation (‘single permit’) to carry out a temporary job in anticipation of finding a suitable job in line with their studies. If, during these 12 months, they find a job in line with their studies, a single permit (salaried activity) or professional card (self-employed activity) will need to be applied for.
The measure applies for non-EEA/Swiss students who have obtained their graduate, bachelor, master or doctorate degree in the past academic year in Belgium or who have obtained their diploma in another European member state but have studied in Belgium in the framework of a mobility programme such as Erasmus.
This means employers will be allowed to employ foreign students with a ‘job search’ residence permit.
New work authorisation exemption for foreign students on mobility programmes
Non-EEA/Swiss students who are studying in another EU member state and have a student resident permit in Belgium within the framework of a mobility programme between universities such as Erasmus are now allowed to work during their studies in Belgium with the following limits:
- unlimited during school holidays; and
- maximum 20 hours per week outside school holidays and to the extent their employment is compatible with their studies.
Employers can thus employ those students within these limits without having to apply for work authorisation (‘single permit’).
Tax tolerance agreements for frontier workers extended until 31 December 2021.
In 2020, Belgium concluded bilateral agreements with neighbouring countries: Luxembourg, France, the Netherlands and Germany.
These agreements stipulate that the days for which an employee received remuneration and worked from home may be regarded as days worked in the state where the frontier worker would have worked in the absence government COVID measures.
This means that an employee residing in Belgium who normally works partially or entirely in a neighbouring country and who is taxable in that country on these services (e.g., because his or her employer is a resident of that country or because s/he works there for more than 183 days a year), remains taxable in the usual working country, and not in Belgium, even if s/he works from home (in Belgium) because it is mandatory or strongly recommended by his employer.
This derogation from the general rule according to which an employee is taxable in the state where s/he physically works has been extended several times by Belgium and its 4 neighbouring countries. On 23 September 2021, this tax fiction was extended again and will remain in force until 31 December 2021, meaning some employees may have spent the entire income year 2021 working from home in Belgium while staying exclusively taxed in another country.
To benefit from this exception, the employee will need to provide a certificate from his or her employer certifying the number of days worked from home due to COVID-related force majeure.
Fiscal flexibility between Belgium and Luxembourg extended
Since 2015 Belgian residents working in Luxembourg are allowed to work 24 days per year outside Luxembourg while remaining fully taxable in Luxembourg.
At the 11th joint meeting of the Belgian and Luxembourg governments on 31 August 2021, it was decided to increase this limit to 34 days as of 2022. The extra ten days are authorised in order to promote and facilitate working remotely for cross-border workers.
Sophie Maes, Attorney-Partner, Claeys & Engels
Current requirements for entering Brazil
On 5 October 2021, Ordinance No. 658 entered into effect establishing new COVID-19 testing and quarantine procedures for travellers entering Brazil.
Entrance by sea or land is prohibited. This does not apply to:
- Brazilian citizens (native or naturalised);
- foreign officials accredited to the Brazilian Government;
- spouses, partners, children, parents or guardians of a Brazilian citizen;
- foreign nationals whose entry is specifically authorised by the Brazilian Government in view of the public interest or for humanitarian reasons;
- holder of a Brazilian ID Card for foreign nationals;
- cargo transportation;
- land entry for individuals coming from Paraguay, as long as the immigration requirements appropriate to their condition are met, including carrying an entry visa when this is required by the Brazilian legal system.
All individuals travelling to Brazil by air need to present to the air company a negative COVID-19 antigen test, performed within 24 hours prior to the scheduled flight, or a PCR test taken within the 72 hours prior to the scheduled flight and the Traveller’s Health Declaration submitted within 24 hours prior to the scheduled flight, before they are allowed to board a flight. The following conditions apply:
- The document must be in Portuguese, Spanish or English.
- The test must be carried out in a laboratory recognised by the health authority of the country from where the foreign national embarks.
- In the event of a flight with connections or stopovers in which the traveller remains in a restricted area of the airport, the period of 24 or 72 hours, as the case may be, will be considered in relation to boarding the first leg of the trip.
- If the journey exceeds 24 or 72 hours, as the case may be, since the completion of the test, travellers must show a new test at check-in for boarding to Brazil.
- Children under 12 travelling accompanied are exempt from presenting an antigen or a PCR test, provided that all companions provide negative or undetectable tests taken in the 24 or 72 hours prior to boarding.
- children aged two or over and under 12 travelling unaccompanied must present a negative or undetectable antigen or PCR test performed in the 24 or 72 hours, as the case may be, prior to boarding.
- children under two years are exempt from providing a PCR test.
Individuals who had COVID-19 in the last 90 days, counted from the date of the beginning of symptoms, who are asymptomatic and still test positive on a PCR test for COVID-19, or detectable in an antigen test for COVID-19, will be allowed to travel to Brazil upon presentation of:
- two positive PCR results, with an interval of at least 14 days, the last one being performed within 72 hours prior to the time of boarding;
- an antigen test with negative or undetectable result, after the last positive PCR result; and
- a medical certificate declaring that the individual is asymptomatic and able to travel, including the date of travel, in Portuguese, Spanish or English with the identification and signature of the responsible physician.
Exceptions to the general rules apply subject to detailed conditions, including maritime and airline crews, cargo crew and air travellers in Brazil as a result of aircraft technical issues.
The following are also permitted:
- cross-border humanitarian actions previously authorised by the local health authorities;
- the traffic of border residents in twin cities, upon presentation of a border resident document or other supporting document, provided the neighbouring country guarantees reciprocity in the treatment of Brazilians.
- Road freight transport, even if the driver does not fit the list above of exceptions.
- Emergency assistance under current immigration legislation to people in a vulnerable situation resulting from a migratory flow caused by a humanitarian crisis (recognised by an act of the Brazilian President). These provisions also apply to immigrants who entered Brazil between 18 March 2020 and 2 October 2021.
Exceptionally, foreign nationals in a land border country who need to cross to board a return flight to their country of residence may enter Brazil with Federal Police authorisation. They must go directly to the airport; have an official demand from the embassy or consulate of the country of residence; and present the air tickets to the Federal Police.
As of 1 November 2021, cruise vessels exclusively transporting individuals of any nationality are allowed in Brazilian territorial waters.
Requests for entry to Brazil in exceptional cases for public interest or humanitarian reasons must be addressed to the Civil House of the Presidency of Republic at least five days prior to the intended entry date. The Civil House’s decision will be rendered after hearing ANVISA (the Brazilian National Health Surveillance Agency), the Ministries of Justice, Health and Infrastructure and other relevant departments.
Maria Luisa Soter, Partner, Veirano Advogados
Rules on entering and leaving Chile for non-residents
Beginning 1 October, non-residents of Chile may enter and exit the country as long as they comply with the requirements below:
- a Chilean Pase de Movilidad or ‘Mobility Pass’; or
- a safe passage only if they have imperative reasons to enter, such as developing essential activities for Chile or urgent and qualified humanitarian reasons (Decree N° 102 of the Ministry of the Interior).
Non-resident foreign nationals with a Mobility Pass (available for individuals who are fully vaccinated), approved by the Chilean government must complete five days’ quarantine, either at home or in a hotel.
Non-resident foreign nationals without a Mobility Pass must complete seven days’ quarantine, either at home or in a hotel.
In addition, all non-resident foreign nationals must:
- show a negative PCR test taken 72 hours before boarding;
- complete a Heatlh Affidavit prior to entry and complete a tracking form within 14 days of arrival;
- have health travel insurance that covers emergency medical expenses, repatriation for medical reasons or death and it must include coverage for any expenses related to COVID-19. The minimum coverage must be USD 30,000;
- complete a self-report of symptoms form for 14 days, completing a survey of health status and location.
Non-resident foreign nationals are allowed to exit Chile with their passports from their country of origin.
Marcela Salazar, Partner, Munita & Olavarría
Colombia introduces a new Comprehensive Immigration Policy
The Colombian Congress has enacted Law 2136 of 2021 creating a Comprehensive Immigration Policy (PIM) to promote safe, organised and regular migration, socio-economic and cultural integration, strengthen national and international partnerships, and develop strategies for the protection of human rights, among other things.
The formulation, implementation, and execution of the PIM should take into account the following:
- sovereignty and national security;
- human rights;
- international cooperation;
- governance and coordination between national and territorial entities;
- citizen participation;
- social, economic and cultural integration.
The PIM defines the inputs to be considered at the time of planning the specifics of immigration policy. These include any international instruments ratified by Colombia, national and territorial development plans and reports from the following, among others:
- the Ministry of Labor;
- the Information System for the Reporting of Foreigners (SIRE);
- the Ministries of Agriculture, Industry, Commerce and Tourism; of Foreign Affairs, and of National Education;
- the National Planning Department;
- technical and academic reports on migration and development.
The PIM also outlines the creation of the National Immigration System (SNM), a set of institutions, civil society organisations, rules, processes, plans and programmes, which will accompany the design, implementation, monitoring and evaluation of the PIM with the purpose of improving the quality of life of the migrant population.
The main objective of the SNM, will be to accompany the National Government in a consultative manner, in the design and execution of public policies, plans, programmes, projects and other actions aimed at strengthening the State’s ties with Colombian returnees, Colombians abroad and foreign nationals in Colombia.
Catalina Santos, Partner, Diana Monsalve, Associate Brigard Urrutia.
Current COVID-19 restrictions on crossing national borders
On 23 July 2021, a new Croatian National Civil Protection Directory decision on temporary limits and prohibitions on crossing national borders (the ‘Decision’) came into force.
According to the Decision, the least restrictive measures are imposed on travellers crossing into Croatian border from one of the country or regions of the EU/Schengen area. These individuals can cross the Croatian freely border by presenting a valid EU digital COVID certificate (‘Certificate’). If these persons are in transit, they are obligated to prove at the border crossing point that they have not retained in the transit areas – countries/regions outside of EU/Schengen area.
Travellers from outside the EU/Schengen area, or those travelling from an EU/Schengen country or region who do not have the Certificate must provide:
- Confirmation of a negative PCR test not older than 72 hours before crossing the border or confirmation of an EU-recognised negative fast antigen test not older than 48 hours before crossing the border; or
- Confirmation of vaccination (one or two doses, depending on the type of vaccine) not older than 270 days before crossing the border; or
- Confirmation that the person has recovered from COVID-19 and received one dose of vaccine within six months after infection, and that vaccination was performed no more than 270 days before crossing the border. If this is not possible, the traveller can take a PCR or fast antigen test immediately on arrival in Croatia. In this case, the person must self-isolate until they receive a negative test result (if they cannot take a test, self-isolation lasts for ten days).
As an exception, certain categories of individuals do not have to provide the Certificate or fulfil these conditions, based on the nature of their profession and/or economic reasons. They include medical workers, frontier workers, HGV drivers, diplomatic personnel, individuals travelling to Croatia for urgent and important personal or family or business reasons provided they do not stay in Croatia over 12 hours, etc.
Amendments to the travel ban rules are anticipated and will depend on the epidemiological situation in Croatia.
Andrej Žmikić, Attorney, Divjak, Topić, Bahtijarević & Krka
Update on COVID-19 travelling restrictions in the Czech Republic
As of 23 August 2021, anti-epidemic measures have been eased for vaccinated third country citizens, on condition that the third country citizen has been vaccinated by a vaccine approved by the European Medicines Agency (EMA) or by its equivalent. Vaccinated individuals must have a certificate indicating their completed vaccination (at least 14 days after the last dose). A template is provided in the list of recognised certificates on the Czech Ministry of Health website.
In addition, vaccinated travellers from countries for which issue EU digital COVID certificates and for which an implementing act was adopted at the EU level may also enter the Czech Republic. These individuals can now travel to the Czech Republic for any reason and at the same time, they can benefit from visa services at Czech embassies, which are now fully available to them. This does not apply to countries with an extremely high risk of COVID-19, in which visa services remain limited.
Ladislav Mádl, Attorney-at-law, Randl Partners
Legislative proposal on a long-term visa for skilled professionals
On 16 September 2021, the Finnish Government submitted a proposal on the introduction of a long-term national ‘D’ category visa.
According to the proposal, the long-term D visa would first cover specialists, growth and start-up entrepreneurs and their family members. The introduction of the proposed D visa would speed up these professionals’ entry process by allowing them to travel to Finland immediately after issuance of a residence permit. The long-term D visa would be valid for 100 days. The proposal contributes to creating a so-called fast lane service for specialists and startup entrepreneurs.
Currently, Finland does not have any national D visa in place. It is already planned that the proposed long-term D visa would be extended to also cover researchers and students at some stage.
The legislative changes are scheduled to enter into force in spring 2022.
Sirkku Jolkonen, Associate Trainee, Jenni Vinnari, Senior Associate, Dittmar & Indrenius
Hong Kong allows non-residents from ‘medium risk’ countries to enter
From 9 August 2021, the Hong Kong Government has opened up the city for non-Hong Kong residents to enter from countries designated as ‘medium-risk’ and ‘low-risk’. These individuals, however, must have been fully vaccinated (and provide proof of this) and must provide a negative COVID-19 test result and proof of their reservation at a designated quarantine hotel for either 14 nights or seven nights depending on the risk level of the country from which they are arriving. Prior to this, Hong Kong had banned all non-Hong Kong residents (i.e. anyone without a valid visa or not holding a permanent identity card) from entering the city since March 2020.
Kathryn Weaver, Partner, Katy Lee, Registered Foreign Lawyer, Lewis Silkin
Ministry of Labour clarification on extending postings to 18 months
On 6 August 2021, the Ministry of Labour approved Decree 170/2021 which defines the standards and rules for electronic transmission of communications by posting companies to the Ministry in relation to long-term postings in Italy.
In particular, the provisions apply to the prior notification of posting and to any subsequent variation to it as well as to the notification with reasons for long-term postings (over 12 months and up to 18 months).
It is important to send this notification to avoid application of almost all Italian employment terms and conditions to the posted employees in the event of a posting exceeding 12 months.
Valeria Morosini, Partner, Toffoletto De Luca Tamajo e Soci
New visa extension rules
If a foreign national needs to extend his or her visa in India from 1 October 2021, s/he can apply on the online e-FRRO platform by paying the requisite fee. Each application will be considered by the appropriate Foreigners Regional Registration Office (FRRO/FRO) subject to the eligibility criteria.
Vijay Ravi, Senior Partner, Sabrina Sawhney, Senior Associate, Kochhar & Co.
Current entry requirements in Kazakhstan
All travellers entering Kazakhstan must submit a certificate with a negative PCR COVID-19 test result no more than three days old (children under five are exempt, provided that the people accompanying them have certificates).
Аll travellers (except for residents of Kazakhstan and individuals with permanent residence permits in Kazakhstan who are fully vaccinated against COVID-19 in Kazakhstan, providing documentary confirmation) must fill in the questionnaire and pass temperature monitoring (see here).
Individuals arriving in Kazakhstan with a normal temperature plus a negative PCR test result for COVID-19 or confirmation of vaccination against COVID-19 in Kazakhstan, are given an explanation of the possible symptoms of COVID-19 and must complete a corresponding acknowledgement document. They may then resume travel to the point of destination. Anyone arriving with a fever, regardless of any PCR test or vaccination documentation, must isolate in a contagious inpatient facility.
The current visa regime in Kazakhstan
Starting from 1 November 2020, Kazakhstan resumed issuing visas and other permitting documents for foreign nationals’ stay in Kazakhstan (see here).
Until 31 December 2021, the unilateral visa-free regime for the citizens of 57 countries has been suspended (except for the EAEU countries and other countries with visa-free entry under international agreements).
Use of the Ashyq app
In spring 2021, Kazakhstan launched the Ashyq project, which involves the use of a special mobile application for access to business facilities by individuals in Kazakhstan. From 28 August 2021, Ashyq is mandatory in places including airports, railway and bus stations, hotels, trading and entertainment centres, educational organisations, sport complexes, public catering facilities, etc.
Work outside Ashyq is permitted for construction projects, industrial enterprises, contactless service companies, flower shops, travel agencies, insurance companies, accountants, notaries, lawyers, consulting companies, advertising agencies, exchange offices, pawnshops, bailiffs and real estate agencies.
The application checks for data on COVID-19 and PCR tests and reflects a risk rating, divided into:
- red (full restriction of movement: strict self-isolation regime);
- yellow (partial restriction of movement: the user is identified in the PCR database as a contact person);
- blue (no restrictions on movement, except for places where a PCR is mandatory); and
- green (there are no restrictions on movement and this user is identified in the database as a vaccinated person; person with permanent medical contraindications; person with a negative PCR test result of no more than seven days of the moment of sample collection; person who has been exposed to COVID-19 within the last three months).
On weekends individuals can work and visit all facilities participating in Ashyq, provided that employees and visitors have ‘green’ status. The ‘green’ status requirement does not cover interregional and intraregional regular carriage services, hotels, airports, railway stations, educational facilities, higher education, colleges, boarding schools and dormitories of educational organisations.
Yuliya Chumachenko, Partner, AEQUITAS
Current restrictions on travel to Luxembourg
Following the European Commission recommendations on temporary restrictions on non-essential travel to the EU, a Law and related regulations impose travel conditions, set out below.
The temporary ban on entering Luxembourg for third-country nationals is extended until 31 December 2021 inclusive.
An exemption from this ban applies for citizens of San Marino, Andorra, Monaco and the Vatican/Holy See, and their family members.
Some categories of third-country nationals are authorised to enter Luxembourg territory due to their status or the purpose of their travel.
There is a regularly updated list of third countries whose residents are exempted from the temporary ban on entering Luxembourg. Currently, it covers: Australia, Bosnia and Herzegovina, Canada, China, Hong Kong and Macao (subject to reciprocal agreement with the EU), Jordan, Qatar, Republic of Moldova, Saudi Arabia, South Korea, New Zealand, Singapore, Taiwan, Ukraine, Uruguay. From 1 January 2021, these restrictions also apply to third-country nationals residing in the United Kingdom, including UK nationals who do not fall under the provisions of the Withdrawal Agreement (see FAQs, here).
Third-country nationals residing in a country that is not on the above-mentioned list are not allowed to enter the Grand Duchy, unless:
- travel is considered essential; or
- they hold a certificate proving a completed vaccination schedule that is considered equivalent in Luxembourg, i.e. issued by a Member State of the Schengen area or issued by a third country and considered equivalent by an implementing act of the European Commission (‘Authorised Vaccine’). This currently applies to certificates issued by Albania, Andorra, Faroe Islands, Israel, Morocco, Monaco, Panama, Republic of North Macedonia, San Marino, Switzerland, Turkey, Ukraine, Vatican.
Before boarding a flight to Luxembourg, including from the EU/Schengen, anyone aged 12 years or older authorised to enter Luxembourg (regardless of nationality) must present:
- either a vaccination certificate attesting to a completed vaccination schedule carried out with an Authorised Vaccine. or
- a recovery certificate issued by an EU Member State or Schengen Area practitioner or EU/Schengen national authority for individuals who have had a SARS-CoV-2 infection within six months prior to travel and who have completed the applicable isolation period in that country with resolution of all symptoms of infection; or,
- the negative result (on paper or electronically) of a PCR/TMA/LAMP COVID-19 test carried out less than 72 hours before the flight by a medical analysis laboratory or any other entity authorised for this purpose or of a rapid antigen test carried out less than 48 hours before the flight by a medical analysis laboratory or any other entity authorised for this purpose. The negative test result must be presented, if necessary, accompanied by a translation, in one of the administrative languages of Luxembourg or English, Italian, Spanish or Portuguese.
These obligations do not apply to travel by land or sea.
A ‘complete vaccination schedule’ means any vaccination pattern
necessary to achieve sufficient protective immunity. It is complete upon administration of the required doses if multiple doses are given or, for single-dose vaccines, after a 14-day interval. For individuals who have recovered and been vaccinated within 180 days of the first positive test result, the vaccination schedule is complete 14 days after the administration of the single dose of any vaccine.
Some exemptions apply concerning:
- health professionals, health researchers and care professionals for the elderly in the course of their work;
- individuals employed in the transport sector and airport transit passengers.
- individuals making a return air journey, for less than 72 hours, from Luxembourg to an EU/Schengen state, provided that they have not left the Schengen/EU area during this period;
- diplomats, staff of international organisations and people invited by international organisations whose physical presence is required for the functioning of these organisations, military personnel, development cooperation personnel, humanitarian aid workers and civil protection personnel in the exercise of their functions.
Dorothée David, Paralegal, Head of Knowledge, CASTEGNARO-Ius Laboris
New judgement on remote work during the COVID pandemic
An English worker, employed in the Netherlands, had to work full-time from home since March 2020 as a result of the COVID pandemic. He requested his employer allow him to telecommute from the UK. The employer did not want him to do this because it was fiscally disadvantageous.
The employer instructed the employee to return to the Netherlands in February 2021 and threatened to stop his wages if he did not return. The matter escalated and the employer stopped wage payments to the employee in March. In May the employer requested the court to terminate the employment agreement.
The main question in this case is whether the employer’s instruction to the employee to work in the Netherlands was reasonable in the view of the tax consequences for the employer if the employee continued to work in the UK.
During the court case, the employer did not specify the adverse tax consequences. The employee argued that there are international treaties in place that prevent double payroll taxes and double social security contributions. Therefore, the court could not judge whether the instruction to work from the Netherlands was reasonable. In addition, the COVID pandemic was an exceptional time. The employee had been working from home without any problems since March 2020. The court ruled that the employee was entitled to outstanding wages and the employment contract remained in force, with the employee being allowed to work from the UK.
This ruling demonstrates that employers need to be careful when allowing their employees to work from abroad.
Hungarian drivers entitled to salary payment under Dutch law
In July 2021 the Court of Appeal ruled that Dutch law and therefore the professional goods collective labour agreement applies to the employment conditions of ten Hungarian drivers who were dismissed by Van den Bosch Transporten in 2014. This ruling may have consequences for the way transport companies use foreign drivers.
The ten Hungarian drivers worked for Silo-Tank. Silo-Tank is a Hungarian company and sister company of the Dutch company Van Den Bosch Transporten B.V. The employment contracts did not contain a choice of law. The employment conditions from the professional goods collective labour agreement were not applied to the drivers.
In these proceedings, the employees claimed payment of wages in accordance with the collective labour agreement. They argued that the Netherlands was the usual country of work and that, according to Rome 1, Dutch law applies to the employment contract. In principle, the law of the country of habitual employment applies to an employment contract, unless the employment contract is more closely connected with another country. In appeal the Court of Appeal ruled that Hungarian law applied. The Supreme Court has set aside this judgement, because the Court of Appeal did not take into account in its judgement all the relevant circumstances according to European Court of Justice case law when determining the habitual country of work.
The Supreme Court referred the case back to the Court of Appeal (different district). The referring Court of Appeal ruled that the Netherlands is the country of habitual employment. According to the Court, the following viewpoints set out in the European Court of Justice Koelzsch judgement clearly point to the Netherlands:
- In most cases, the transport assignment began and ended in the Netherlands, where the lorries were also waiting.
- Planning of the transport took place in the Netherlands.
- The actual instructions were given from the Netherlands.
- Sickness and leave applications had to be submitted to Van den Bosch.
Other aspects presented by parties also pointed more towards the Netherlands as the ‘normal working country’. For example:
- The bank licence for an account held by the Hungarian company was in the name of Van den Bosch Transporten.
- The fuel card used by the drivers for refuelling was in the name of Van den Bosch Transporten.
In conclusion, the court ruled that Dutch law applies to the Hungarian drivers’ employment contracts. This means that the employees probably have a substantial wage claim against Van den Bosch Transporten.
Romanian drivers entitled to salary payment under Dutch law
Nine Romanian drivers who worked from the Netherlands are entitled to Dutch wages. This was decided by the District Court of Rotterdam in a case that the trade union FNV brought against Wemmers Tanktransport and its Czech sister company Unitrans Bohemia.
The Romanian drivers received lower wages according to Czech standards, because they were under contract to the Czech sister company.
According to the Court, because most of the elements concerning the drivers’ activities pointed to the Netherlands as country of work, they were entitled to the same wages as their Dutch colleagues. The Court also considered that Unitrans was based in the Netherlands as meant in the collective labour agreement.
The judge based this ruling on the following circumstances:
- The drivers generally started and ended their working period in the Netherlands.
- A large proportion of the individual trips took place from the Netherlands.
- A large part of the trips concerned transport within the Netherlands.
- Lorries with mostly Dutch number plates were permanently prepared to be used for Wemmers.
- Most of the maintenance was carried out to a large extent at Wemmers.
- The fact that Unitrans has its registered office in the Czech Republic and that driver personnel planning was actually carried out by Unitrans employees from the Czech Republic points to the Czech Republic as the usual country of work. However, this does not alter the fact that after signing the contract, the drivers hardly ever visited the Unitrans office in the Czech Republic and that forms and consignment notes and the like were handed in at Bleskensgraaf.
- The drivers also worked only for Wemmers and not for other (non-Dutch) transport companies.
- There was a close link between Unitrans and Wemmers because there the director was director and major shareholder of both companies.
In conclusion the court ruled that Dutch law and the Dutch collective labour agreement applies to the Romanian drivers employed by Wemmers’ Czech sister company.
Hylda Wiarda, Partner, Bronsgeest Deur
Immigration changes as a response to COVID-19 lockdown
On 17 August 2021, in response to community transmission of the delta variant, New Zealand entered a nationwide Alert Level 4 lockdown. Individuals were required to stay at home except to access essential services such as medical care or grocery stores, or unless they worked in an essential service.
The rest of the country, outside of Auckland, moved out of lockdown on 7 September 2021 and is currently sitting at Alert Level 2. Auckland is to remain at Alert 4 Lockdown until 21 September 2021 and it will move to Alert Level 3 from 22 September 2021.
Travel across Alert Level boundaries is highly restricted. It is an offence to travel across boundaries without permission. Exceptions to this rule apply to essential workers, healthcare workers or if there is an emergency.
On 18 August 2021, the government announced that the quarantine-free travel bubble between New Zealand and the Cook Islands has been suspended. This is after quarantine-free travel between New Zealand and Australia was suspended on 24 July 2021, following the delta outbreak in New South Wales.
Offshore resident visa holders with travel conditions set to expire between 25 August 2021 and 10 September 2022, will have their travel conditions extended to 11 September 2022. Due to current COVID-19 border restrictions, many people may not be able to travel to New Zealand before the expiry of their travel conditions.
Simon Lapthorne, Executive Partner, Meilun Chen, Senior Solicitor, Kiely Thompson Caisley
New rules on entering Peru
Since 20 September, Peruvians, residents and non-resident foreign nationals who enter Peru as their final destination from other countries, must have proof of a negative PCR no more than 72 hours before boarding at their point of origin. They can, but are not obliged to, present the vaccination card from the country where they were vaccinated if they have one. These rules apply until 31 October and can be extended.
Passenger flights from South Africa have also been suspended until 31 October and this suspension can be extended.
Ximena Ramos, Associate, Estudio Olaechea
Current COVID-19 travel restrictions in Poland
Entry to Poland from Schengen countries is possible for anyone as the internal EU borders remain open.
Only selected individuals who arrive from non-Schengen countries may enter Poland, e.g. individuals who:
- travel in the course of work;
- are citizens of the EU, Belarus, the UK and Ukraine.
Citizens of the US, Canada, the Republic of Korea, Israel, Japan, Australia, Georgia, Tunisia, Thailand and New Zealand or individuals who have a residence permit in one of these countries may enter Poland if they travel by plane.
Travellers entering Poland must undergo a ten-day quarantine. There are exemptions, including for individuals who:
- come from Schengen countries and have a negative PCR or antigen COVID-19 test result performed within 48 hours before crossing the border (counted from the moment of the test result);
- were fully vaccinated for COVID-19 at least 14 days prior to arrival to Poland with vaccines authorised for use in the EU (Pfizer, Moderna, AstraZeneca, Johnson & Johnson);
- underwent isolation or have been hospitalised for COVID-19 infection and are crossing Polish border not later than six months from the end of isolation or hospitalisation.
Early release from quarantine obligation is available, including for individuals who:
- begin their journey in Schengen countries, take a COVID-19 test directly after crossing the Polish border and receive a negative result;
- begin their journey in non-Schengen countries, undergo at least seven days’ quarantine, take a COVID-19 test and receive a negative result.
Individuals entering Poland who are exempted from quarantine must provide relevant documents confirming their status and the applicable exception.
Michał Kacprzyk, Senior Associate, Head of Immigration & Global Mobility Practice, Raczkowski
Romania doubles 2021 quota for foreign workers
The quota of foreign workers newly admitted on the Romanian labour market is established annually by Government Decision, following the proposal of the Ministry of Labour and Social Protection.
Following the latest amendment on the initial Government Decision (that established a quota of 25,000 for 2021), the new quota that applies this year is 50,000 foreign workers. This amendment was implemented taking into account a recently observed increase in requests for work permits since the beginning of the year, compared to the previous year. In addition, the vacant positions, as communicated by employers, represented an important factor for this decision.
The measure took into account the data communicated by the General Inspectorate for Immigration, according to which between January and August 2021, 17,196 work permits were issued and a further 3,620 requests were pending.
In addition, according to the data provided by the National Agency for Workforce Employment, between January and May 2021, the total number of vacancies was 160,405, compared to 156,085 in the same period last year, an increase of 2.77%.
The decision to supplement the quota of foreign workers responds to a need to guarantee the labour force required in some sectors of activity, which cannot be covered by Romanian workers. It is also aimed at preventing situations in which foreigners work in Romania without legal authorisation.
Roxana Abrasu, Partner, Head of Employment Practice, Gabriela Dinu, Managing Associate, NNDKP
List of states whose citizens can enter Russia while borders are still closed extended
Starting from 1 August 2020, the Russian Government has gradually supplemented the list of countries whose citizens can enter Russia from the state of their citizenship or residence, in addition to individuals with a residence permit. During August 2021 and September 2021, the list was extended to include:
Regular flights to these countries resumed on a reciprocal basis from 21 September 2021.
Travellers arriving from these countries and Russian citizens are exempted from the compulsory 14-day self-isolation. However, foreign nationals must have a pre-travel negative PCR test that is a maximum of 72 hours’ old. Russian citizens may undergo COVID-19 testing within three days after arrival (the rules do not apply to those who have completed vaccination or have recovered from COVID-19 within the past six months).
Scheduled state audits of migration compliance cancelled
According to a Russian Government Order of 24 August 2021, state supervision of immigration compliance is only carried out in the form of unscheduled audits. Further scheduled audits including those to be conducted between July and December 2021 have been canceled.
Unscheduled audits may be initiated based on an employee’s grievance, any other information on violation of migration requirements, etc. They may be conducted in paper or on-site form.
It is worth mentioning that the prior ‘risk-based’ approach when assessing the necessity of audit is no longer used. Previously, this meant that employers engaging a significant number of foreign employees and/or with past violations were under the strict and permanent control from the migration authorities.
One-year visas for close relatives and medical treatment
On 1 September 2021, amendments to Federal Law came into force that allow close relatives of Russian citizens and individuals entering Russia for medical treatment (upon application of a medical institution) to obtain multiple-entry visas for a period of up to one year. They are also entitled to stay for the full visa duration without limitations.
Previously, only single-entry and double-entry private visas for up to 90 days could be issued. Longer multiple-entry visas were issued solely on a reciprocal basis.
Irina Anyukhina, Partner, Margarita Egiazarova, Senior Associate, ALRUD
Updated rules for entering Slovakia
The rules for entering Slovakia were amended on 27 August 2021. In summary, the following rules apply:
- mandatory registration via a form available here (irrespective of number of entries, registration is valid for six months);
- proof of vaccination (EU Covid-pass or confirmation of vaccination, or any equivalent confirmation issued by a third country translated into Slovak, Czech or English);
- additional mandatory registration when travelling by plane via z form available here. Entering Slovakia from not listed counties also requires a negative RT-PCR test not older than 72 hours (note: currently the test is not required for 64 countries).
- mandatory registration via a form available here;
- 14 days’ quarantine; quarantine can also end after receiving a negative RT-PCR test, which can be taken on fifth day after return at the earliest;
- when traveling by plane, the same additional obligations apply as for vaccinated individuals.
There are still some additional exemptions for specific social groups (students, children, individuals travelling for medical diagnostic or treatment reasons, commuters, etc.).
Dajana Csongrádyová, Senior Associate, Marek Bugan, Associate, NITSCHNEIDER & PARTNERS, advokátska kancelária, s. r. o.
COVID-related US travel restrictions for fully vaccinated travellers to end in early November
For the last 18 months, the Biden administration has banned travellers coming to the US from the 26 Schengen countries, UK, Ireland, China, Iran, South Africa, Brazil and India as a way to reduce the spread of COVID-19. Currently, affected travellers can only waive the travel restrictions by completing a 14-day quarantine in a non-restricted country or by obtaining a National Interest Exception (NIE) (these are rarely issued).
Once the travel restrictions are lifted in November, fully vaccinated travellers can fly directly to the US by presenting proof of their vaccination status and a negative COVID test performed within 72 hours of boarding the international flight to the US. The ending of the travel bans will only benefit those fully vaccinated travellers who can travel under visa waiver (ESTA) or who already have a valid US visa in their passports. The recission of the travel ban will not, however, improve US Consulate visa processing operations which are heavily backlogged, so travellers who are required to have a visa but do not will still be unable to travel to the US for the foreseeable future.
Geetha Adinata, Partner and Head of Business Immigration Practice, Ford Harrison