New Rules on Joint Work and Residency Permits in Hungary

As of January 1, 2014, third country nationals residing in Hungary for more than 90 days who require authorization to work in Hungary must apply for a joint work and residency permit (“joint permit”), rather than separate work and residency permits from separate authorities.

Going forward, a third country national applicant must submit a joint permit application to the immigration authority, and the immigration authority will make an official inquiry to the labor center to obtain an authorization. After the labor authorization is obtained from the labor center, the immigration authority will decide whether the residency requirements have been fulfilled, and whether to grant a joint permit.

Unfortunately, the new joint procedure has not produced simpler or easier work and residency permit processes for third country nationals. In fact, the new rules may be disadvantageous, particularly for those third country nationals who can enter and stay in Hungary for a period not exceeding 90 days without a visa.

Prior to January 1, third country nationals were allowed to enter Hungary without a visa for a period not exceeding 90 days and could start work on the basis of a work permit issued to the employer company without waiting to obtain a residency permit. Pursuant to the new rules, however, a third-country national must wait to start work in Hungary until the joint permit authorizing the third country national to work is issued. The procedural deadline for issuing the joint permit is 90 days. Moreover, before January 1, the work permit “applicant” was the Hungarian employer, making it relatively easy for the employer to collect all company information and documents necessary to submit the work permit application. Now, however, the applicant for the joint permit must be the third country national, who must collect all of the necessary information and documents about the Hungarian employer.

The intent of the new rules were to combine work and residency permit procedures into one joint procedure. However, the so-called manpower procedure (during which it is determined whether the position in question can be filled with a Hungarian national), if needed, must be initiated separately from the joint procedure. Therefore, the new procedure might not be as simple and quick as planned to be.

In practice, it is not clear whether the new rules will bring simplicity into corporate immigration matters for those third country nationals who are visa exempt for a period not exceeding 90 days. As a practical solution, these third country nationals might want to apply for their joint permit at the Hungarian embassy or consulate abroad before entering Hungary rather then applying locally and waiting for the joint permit to be granted. The new rules do not bring any changes relative to third country nationals who are exempt from work permit requirements; they must still apply for a residency permit in an ordinary procedure.

New Electronic Visa Applications in Brazil

On December 16, 2013, a ruling in Brazil (nº 1964/2013) established a new system, known as “Migranteweb Digital,” which allows for visa applications to be submitted electronically. The system keeps all the information and documents submitted in strict confidence. To comply with this new ruling, the visa applicant or the visa provider should have a virtual signature to be able to submit the visa form on the system.

Use of the Migranteweb Digital system is not mandatory, and applicants may continue to submit applications in hard copy. However, it is expected that the Migranteweb Digital system may significantly expedite visa processing. Although the new ruling does not include estimated processing times, we have seen 45-day processing times for those applications filed in hard copy reduced to just one week, for those applications filed via the Migranteweb Digital system.

We expect that this new tool will continue to bring our clients more flexibility (and faster processing times) for visa applications in Brazil.

New Trends in Colombian Immigration Law

As of January 21, 2014, nationals from Venezuela can now apply for a Mercosur visa at a Colombian Consulate abroad or at the Ministry of Foreign Affairs. Although Venezuela is a member of the Mercosur organization, its nationals were only recently granted Mercosur visa reciprocity treatment by the Colombian government.

The Mercosur visa, which is a temporary residence permit that may be granted by the immigration authorities for up to two years, may be granted to allow home activities or studies, to be hired by any Colombian employer, or to render independent services. This visa is available to citizens of Argentina, Brazil, Bolivia, Peru, Chile, and Ecuador.

As a consequence of the new functions and powers granted to the Special Administrative Unit of Colombian Immigration (the entity in charge of supervising and controlling the foreign nationals in Colombia), this entity now has the discretion to sanction foreign nationals who practice regulated professions in Colombia without the appropriate professional permit, and sanction companies that employs workers who will practice regulated professions without the appropriate permit. Sanctions may consist in fines between 1/2 and 7 minimum legal monthly salaries (this is Col. Pesos for 2014 equivalent to COP$ 616,000 or approximately USD $280).

To remain in compliance, Colombian employers must always inform the Special Administrative Unit of Colombian Immigration when they have hired foreign nationals who will practice regulated professions in Colombia. This notification must be submitted within 15 calendar days of the date of hire, and must contain a copy of the professional permit granted to the foreign national by the professional council or of the document certifying that the permit is being processed.

Switzerland to Reintroduce Quotas

By popular vote, Swiss citizens on February 9, 2014 narrowly approved the constitutional initiative “Against Mass Immigration.” This initiative requires the reintroduction of maximum numbers and quotas for all foreign nationals who want to reside and work in Switzerland. This will be a fundamental change to the current situation, in particular for all EU/EFTA citizens who shall in future no longer benefit from the free movement of persons but be treated like any other foreign nationals. It will become more difficult for foreign nationals to work and reside in Switzerland. Even in those cases where a permit is ultimately granted, the upcoming necessary changes to the law will delay the process and trigger additional costs.

The Content of the Popular Initiative

The popular initiative requires that the immigration of foreign nationals shall be subject to annual maximum numbers and quotas. The maximum numbers shall apply to the immigration of all categories of foreign nationals, including asylum seekers. The right of permanent residence, the right of family members to join a foreign national who is granted a residence permit and the right to obtain social benefits may be restricted.

The annual quotas for foreign nationals who wish to exercise a gainful activity shall equally be limited in number and shall take into consideration Switzerland’s overall economic interest. Preference shall thereby again be granted to Swiss citizens. This also applies to those foreign nationals who reside abroad and work in Switzerland, the so-called border commuters.

The relevant criteria for granting a residence and work permit within a quota system shall be (i) the application of an employer who has not found an adequate Swiss citizen for the job in question, (ii) the foreign national’s ability to integrate, and (iii) sufficient, independent financial means of existence for the immigrant.

The popular initiative requires that any international treaty that violates the above principles be renegotiated and amended within three years, i.e. by February 9, 2017. This will force the Federal Council to enter into a dialogue and possibly negotiations with the EU sooner rather than later since the popular initiative does not comply with the Bilateral Treaty on the Free Movement of Persons.

The popular initiative leaves numerous relevant questions open. In particular, it does not specify how many annual quotas shall be granted, how they shall be determined, and by whom. The actual implementation of the popular initiative will thus have to be effected by a Federal Act which will need to be adopted by the two chambers of parliament. This Act might then even be subject to a referendum. The popular initiative hence requests that the Federal Council, by February 9, 2017 at the latest, adopts the necessary implementing provisions by way of Ordinance if the Federal Act has not entered into force by such date.

Consequences of the Popular Initiative

The reintroduction of maximum numbers and quotas will, once introduced, render it more difficult and costly for businesses to get foreign national employees into Switzerland. EU and EFTA citizens will no longer be able to just enter Switzerland but will first have to apply for a work and residence permit and only once this permit is granted will they be able to work in Switzerland.

The principles established by the popular initiative seem to indicate that it should still be possible to get well qualified employees into Switzerland because the principles basically correspond to the ones currently applicable to non-EU/EFTA citizens. This means that foreign nationals who have specific skills that cannot be found on the Swiss labor market should still be able to get a work and residence permit.

The change will, however, most likely make it substantially more difficult for less-qualified EU/EFTA citizens to obtain a work and residence permit. While under the current system they basically could come to work in Switzerland without any previous application, they might see their work permit application rejected in the future and thus be prevented from working and living in Switzerland entirely.

The authorities will most likely charge a fee for the work and residence permits even though a fee might be excluded for EU/EFTA citizens. Nevertheless, drafting and filing the work and residence permit application will trigger costs for the external advisor and/or the additional work that the Human Resources department of the applicant has to discharge.

The acceptance of the popular initiative will also require a renegotiation of the Bilateral Treaty on the Free Movement of Persons between the European Community and its member states (i.e. the EU) on the one side and Switzerland on the other side. It is likely that the EU will not accept the unilateral reintroduction of maximum numbers and quotas by Switzerland. The European Commission has already announced that it is now up to the Swiss government to make proposals, but that the principle of free movement of persons is not up for negotiation. If no agreement can be found, Switzerland will inevitably violate the Bilateral Treaty and a subsequent termination of this treaty by the EU is a substantial risk. The termination of this treaty would automatically also trigger the termination of all other bilateral treaties upon the lapse of a six month period, namely including the treaties on free movement of transportation by land and air, but also the accession treaties to Schengen and Dublin. Currently pending negotiations on further bilateral treaties (like electricity) and an institutional framework agreement will likely be put on hold for the time being.

According to the Federal Council, the acceptance of the popular vote shall have no impact on foreign nationals already living in Switzerland and the initiative shall only deploy its effects with respect to foreign nationals who enter Switzerland after the implementing legislation has entered into force. This interpretation is solely based on the Bilateral Treaty and not pertinent to other foreign nationals, and even in the case of EU/EFTA citizens there will likely be political discussions as to whether the principle shall also apply if a permit has to be renewed upon expiry of the implementation period. However, it is safe to assume that there will be a certain protection of the foreign national’s trust in the right to remain resident in Switzerland. In particular, the right of permanent establishment should not be affected by the change.

Conclusion

For the time being, the exact effects of the popular vote are still unknown. However, further developments should be closely watched. In particular for EU and EFTA citizens who want to work and reside in Switzerland, it might be advisable for them to come to Switzerland before the implementing law enters into force.

2014 Trends in Dutch Immigration Law

The following seven trends in Dutch immigration law should be watched throughout 2014:

Modern Migration Policy Act Update

In a bid to have Dutch migration procedures based on a more substantive participation of migrants in Dutch society, on June 1, 2013, the Modern Migration Policy Act (the “Act”) came into effect. The Act introduced a simplification of residence permit procedures and reduced the administrative burden for sponsoring companies (“Sponsors”).

The Dutch immigration service (“IND”) advised that the Act would accelerate permit procedures considerably. Although the Act has led to an undeniable improvement, in our Immigration Desk’s experience migrants and their (employers) Sponsors have not yet been able to reap all of the anticipated benefits. Furthermore, the Act has introduced specific obligations that should not be taken lightly. For example, in order to hire “Knowledge Migrants” (in Dutch: “Kennismigranten”), sponsoring employers require so-called “Authorized Sponsorship” (in Dutch: “Erkend Referentschap”) first, which is a specific corporate qualification that must be filed with the IND (and for which the IND is charging an application fee of EUR 5,065 in 2014). Furthermore, the Act has introduced additional obligations for (authorized) sponsors; i.e., an obligation to provide information, a duty to keep records and a “duty of care.”

Single Permit Directive

The Dutch government has implemented the European Single Permit Directive and intends to have it entered into force in early 2014. As a result, instead of having to follow separate procedures, migrant workers will be able to follow a single application procedure with the IND for combined residence and work privileges. However, not all migrant workers will benefit from this new procedure. Consequently, separate applications may still be necessary, and will depend on, among other considerations, the nature of a foreign national’s expected work activities in the Netherlands. Please note that a “one permit” procedure already exists for Knowledge Migrants, regardless of the implementation of the Directive.

Salary thresholds for Knowledge Migrants

In 2014, employees must meet certain salary thresholds in order to qualify for a Knowledge Migrant permit, ranging from a gross monthly salary of at least EUR 2,127 (EUR 2,297.16 including holiday allowance) for graduates in the Netherlands, to at least EUR 4,048 (EUR 4,371.84, including 8% holiday allowance) for migrants 30 years of age or older.

Free movement of Bulgarian, Romanian and Croatian nationals

As of January 1, 2014, Bulgarian and Romanian nationals no longer need a work permit to be employed in the Netherlands. The obligation to apply for a residence permit had already expired when Bulgaria and Romania joined the European Union on January 1, 2007. The Netherlands has temporarily opted out of the full mobility of the workforce in respect of the new EU member, Croatia, which means that Croatian nationals still require work permits to work in the Netherlands.

Abolishment of the duty to report EU Nationals

As of January 6, 2014, EU/EEA and Swiss nationals residing (and working) in the Netherlands are no longer required to report their stay in the Netherlands and obtain a registration sticker for their passports from the IND. This (former) semi-obligation has always been rather questionable since legal residence for EU nationals simply follows from EU law, without any obligation to meet a duty to report.

Revision of the Dutch Foreign Nationals Employment Act

The Dutch Foreign Nationals Employment Act has now changed, and procedures to obtain work privileges in the Netherlands have been tightened. Notwithstanding specific exceptions, the maximum duration of a general work permit is now limited to one year (instead of three years). Renewals are no longer possible. For every new period, a new work permit application must be filed and all relevant conditions will have to be met and assessed anew. Furthermore, the work permit application may be declined if the employer has been penalized for violation of Dutch employment law, examples of which include the Dutch Working Conditions Act or the Dutch Foreign Nationals (Employment) Act.

Work permit waiver scheme for Business Visitors

Prior to 2014, non-EU business visitors who visited the Netherlands to attend business meetings or to sign business contracts did not require a work permit, provided that they kept their business trips limited to a maximum joint duration of four weeks within a 13-week period.

The Dutch legislature intended to ease the work permit waiver scheme for business trips by allowing visitors to benefit from the aforementioned exception for an extended 13 weeks within a 52-week period (starting in 2014). Unfortunately, by mistake, the amended provision of Dutch immigration law currently reads that a work permit for a business visit is not required, provided that the duration of stay is limited to a maximum consecutive period of 13 weeks within a 52-week period. Consequently, the change led to an unintentional restriction. Instead of multiple business trips over a shorter period, it now seems that only one business trip per year is allowed without a work permit.

The Ministry of Social Affairs and Employment has recognised that this was not the intention of the waiver’s revision. They confirmed a reconsideration of the change and announced that meanwhile, the “old” rules remain effective. This means that--for now--a non-EU business visitor can still come to the Netherlands for multiple business trips for a maximum joint duration of four weeks within a time frame of 13 weeks.