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European immigration – time of change?

Stephanie Odumosu and Stephan Judge

PwC

Tuesday 24 September 2019


Immigration matters go to the heart of European politics, with the freedom of movement of European nationals to live and work across the bloc enshrined as a founding pillar of the European project. Though the United Kingdom voted to leave the European Union, there have been no changes with regard to the status of EU nationals in the UK, nor the status of UK membership of the EU at the time of writing. Freedom of movement continues to apply to EU and European Economic Area (EEA) nationals in the UK, as well as UK nationals across the continent. As such, Europe currently remains the only continent that is able to quickly and freely deploy its citizens across most of its mainland and its islands without any restrictions. Switzerland, although not in the EU or EEA, joined this free movement of people through bilateral agreements, and although recent political changes in the country had put a potential question mark over its long-term participation, this seems to have been resolved for the time being.

EU freedom of movement

Full members of the EU, including the 2004 ‘A8’ and the 2007 ‘A2’ countries of eastern Europe (see table for relevant listings), as well as the EEA, enjoy full freedom of movement of their citizens between each and all member countries. In other words, their citizens can choose to live and work across any of the member states.

Below are listed the current member countries of the EU and EEA, plus Switzerland and territories adopting EU principles.

European countries

Pre-2004 EU/EEA* and Switzerland

Austria

Germany

Luxembourg

Sweden

Belgium

Greece

Malta

Switzerland

Cyprus

Iceland*

Netherlands

United Kingdom

Denmark

Ireland

Norway*

 

Finland

Italy

Portugal

 

France

Liechtenstein*

Spain

 

A8 nationals (since 2004)

Czech Republic

Hungary

Lithuania

Slovakia

Estonia

Latvia

Poland

Slovenia

A2 nationals (since 2007) and Croatia (since 2014)

Bulgaria

Romania

Croatia

 

Territories that adopt EU principles

Andorra

Isle of Man

San Morino

 

Channel Islands

Monaco

   

EEA

The EEA comprises the EU and countries that did not join the union in full, but for all intents and purposes enjoy the same rights and responsibilities as full members. The EEA Agreement was entered into in 1994 and it brings together EU member states and EEA European Free Trade Association (EFTA) states in a single market (generally known as the internal market) that is governed by the same basic rules. These rules aim to enable goods, services, capital and persons to move freely about the EEA in an open and competitive environment. The EEA includes Iceland, Liechtenstein and Norway. Citizens of EEA member states are not required to obtain a work permit to work in the entire EU or EEA area.

Schengen zone

Most continental European countries, including some outside the EU, are joined into a common visa and travel area called the Schengen zone. This facilitates borderless travel for tourist and business activities for non-EU nationals across all the Schengen member countries. It also allows a holder of a work and residence permit in one Schengen member state to travel - visa-free - to all other Schengen member states for tourist and business activities.

Non-visa nationals can simply enter the Schengen area with their passports and their Schengen entitlement will be triggered upon entry. Visa nationals and those requiring a Schengen visa will file for this with the consular post in their home country or their main or first destination country in the area. Schengen visas typically permit business, transit or tourist activities only. Schengen visas usually allow a maximum duration of 90 days within any 180-day period across the member states – in other words, the traveller may only stay up to 90 days cumulative across the countries participating, and must leave the Schengen zone thereafter until the next 180-day period commences. The duration of stay granted on a visa is discretionary and may be limited to a period shorter than outlined above.

There have been a number of recent challenges to the long-term future of the Schengen zone with many countries imposing some level of security checks at country borders. This has been the result of both the large migrant flows from a few years ago, as well as a spate of terror attacks across Europe, beginning with the attacks in Paris in November 2015. Since these attacks, checkpoints have been implemented on major routes between France and Belgium, where individuals are subject to passport checks. This comes after Austria, Denmark, France, Germany, Norway, Poland and Sweden reinstated internal border controls to control the flow of migrants in summer 2015.

Opinion is split on the effectiveness of Schengen in today’s society, as many have blamed its existence for the relatively free and easy passage of recent terror suspects, such as the individuals responsible for recent attacks.

Many believe that Schengen is very much still welcome and that it actively helps to improve Europe’s economy by allowing easy border-free travel for over 500 million people. Additionally, both trade and travel have prospered making long queues at internal European borders a thing of the past. This train of thought believes that it would be just as effective to better police the external borders, rather than to reinstate national borders within Schengen.

The current Schengen Borders Code provides member states with the capability of temporarily reintroducing border control at internal borders in the event that a serious threat to public policy or internal security has been established. Border control can vary depending on whether the event was foreseeable (such as a large-scale sporting event) or urgent, such as in response to a terror threat. Austria, France and Germany currently operate under reduced border control under the ‘foreseeable events’ clause. Reintroducing border control at the internal border should only ever be used as a measure of last resort; however, there has been recent concern that these provisions are being abused and countries are taking advantage of the flexibility in the system.

There have been recent talks to considerably limit the time period that the clause can be invoked for to just two months. Where an extension would be required, a detailed risk assessment would need to be provided and any further extension would require thorough analysis by the Commission to ensure it fully meets the legal requirements.

For the time being, it does seem that Schengen border-free travel is here to stay with greater efforts being made to better safeguard any curtailment of its use.

Trends affecting European immigration

There are many trends affecting immigration policy, not only across Europe, but worldwide. Continued global instability, the increase in movement of people across the European continent and globally, in addition to variable economic growth are having an effect on further European integration, and with it on immigration.

These include:

  • a greater emphasis on employer accountability;
  • increased restrictions on allowable business activities;
  • new and increased labour market test requirements;
  • stricter interpretation of immigration rules and policies; and
  • increases in audit and work site inspections.

The individual chapters on European countries in this book address some of these themes in greater detail. We focus on several topical key issues here.

Switzerland

Switzerland is not part of either the EU or the EEA, therefore those undertaking work activities in Switzerland will be required to obtain work permission in many instances. Switzerland treats different types of contracts and different EU/EEA nationals slightly differently, and advice should be sought before sending any national to this country. Swiss nationals on the other hand enjoy freedom of movement across most of the EU, although in some EU/EEA member states, Swiss nationals may need to obtain a residence permit.

In 2014, a Swiss referendum voted in favour of implementing strict quotas on immigrants; however, this was swiftly rescinded following a backlash from the EU. This was owing to it rupturing a bilateral agreement with the EU – that being freedom of movement. Switzerland was immediately cut-off from academic funding which greatly diminished the potential for international talent. As a result, the quotas were reconsidered and removed to preserve Switzerland’s continued amicable status with the EU. The immediate backlash that followed Switzerland’s initial quota of immigration numbers could be a sign of what could be to come for the UK as the Brexit negotiations continue.

In June 2016, Swiss restrictions provisionally separating Bulgarian and Romanian nationals from other EU/EEA nationals were removed. This legislation was initially enacted on a trial basis and if the number of Bulgarian and Romanian nationals increased by more than 10 per cent over the following 12-month period (when compared with the average of the three previous 12-month periods), the Swiss authorities were permitted to reintroduce quotas for a maximum of two years. Interestingly, this is exactly what happened and such quotas were re-introduced in a ‘soft form’ known as the Safeguard Clause. This became effective in June 2017, and during that period, the category B EU/EFTA residence permits for Bulgarian and Romanian nationals were limited to a set number each year. This clause was extended for a further year from 1 June 2018 to 31 May 2019; however, since 1 June 2019, Bulgarian and Romanian nationals have been able to enjoy full free movement rights and the same open access to the labour market in Switzerland as any other EU national.

Croatia

Citizens of Croatia, who have been EU citizens since January 2014, have seen an increasing number of countries lifting the interim restrictions that prevented them from initially enjoying full freedom of movement across the union. In July 2015, eight countries (Belgium, Cyprus, France, Germany, Greece, Italy, Luxembourg and Spain) lifted the work permit restrictions, as the first phase of the transitional period – agreed as part of Croatia’s membership negotiations – drew to an end. In turn, Croatia has not required nationals of any of these countries to require a work permit to work in Croatia. On 1 July 2018, the UK also lifted the transitional arrangements, and Croatian workers are now able to take up any employment in the UK without the need for work authorisation.

After seven years of EU membership, all restrictions will come to an end; in other words, from 2021, Croatian nationals will enjoy full freedom of movement across the whole of the EU/EEA.

Candidate countries – the next entrants to the EU

For some time, there have been discussions around Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro and Serbia joining the EU, and these six countries comprise the candidate countries on the road to eventual EU membership. The negotiations are in differing stages for each of these countries, and there are several criteria that must first be satisfied before they are able to progress to the next stages of the EU membership process.

By all estimations, we are still some way from any of these countries joining the EU and following eventual accession to the union, lengthy interim measures are expected on the freedom of movement.

The outgoing president of the European Commission, Jean-Claude Juncker, previously announced that some of these countries could achieve membership by 2025, and the frontrunners, Montenegro and Serbia, are to set goals of completing accession talks by even sooner than then.

Turkey was once discussed as being an upcoming entrant; however, recent developments in Turkey seemed to have halted progress. In April 2018, Johannes Hahn, the European Commissioner who oversees new membership bids, stated that Turkey does not meet the criteria required for EU candidacy or membership and that they were continuing to take ‘huge strides’ away from the EU. Further, in March 2019, 370 MEPs voted in favour of, and 109 voted against (with 143 abstentions), an official freeze around Turkey’s negotiations to join the European Union. The focus now appears to be on rekindling cooperation between Turkey and the EU.

EU Directives

EU Blue Cards

The European Commission’s EU Blue Card has been implemented in a number of states over the past decade, designed to help bring in highly skilled workers to fill structural working shortages in key sectors within the EU, such as engineering and healthcare.

Formally introduced in 2009, the EU Blue Card is a work permit allowing highly skilled non-EU citizens to work and live in any country within the EU, excluding Denmark, Ireland and the UK. The card is designed for those wishing to reside in a member country for more than three months, and is usually valid for a period of two years, subject to further renewal. It is designed to encourage mobility between different member states.

The Blue Card scheme is yet to gather momentum, and there remain a number of countries that, even last year, had still failed to really implement or utilise the card at all, such as Greece, Malta and Slovakia. As is often the case with EU directives, implementation has been quite different across the states and the eligibility criteria and processes vary between countries.

Intra-Corporate Transferees Directive

The Directive on Intra-Corporate Transferees was adopted by the EU in 2014, and was designed to introduce a common set of rules to make it easier for companies outside Europe to send key staff to their branches within the EU as well as making it possible for family members of these individuals to work at the same time, should they wish.

Previously, entry into each member state was governed by a different set of rules, which meant that non-EU nationals generally had to make a separate permit application for each country, even when being transferred within the EU. This was regardless of the duration of the proposed assignment.

Under this Directive, once a foreign national is granted an intra-corporate transfer (ICT) permit to a member state, he or she can be transferred almost freely inside the EU, provided the individual is working for the same company or group of companies. The Directive grants the worker the same protection as EU-posted workers and they are required to receive the same remuneration as local hires.

ICT permits are valid for a maximum period of three years for managers and specialists and one year for graduate trainees. The ICT permit allows the worker to then move around to work for entities of the same multinational company in other EU states for up to 90 days within a six-month period. For intra-EU work exceeding the 90-day limit, member states may require a separate ICT permit application.

The Directive improves the treatment of family members of this group, as they will be able to accompany the main applicant from the start of the assignment, and will also be entitled to take up employment or self-employment for the same duration of time as granted to the main applicant. However, the wording around this aspect of the Directive has been ambiguous, and accordingly not all member states have implemented this aspect fully.

All countries, bar Denmark, Ireland and the UK (which have opted out of the ICT Directive and already have their own intra-company transfer regulations), have implemented the directive into national legislation.

Posting of Workers Directive

First introduced in 1996, this legislation had two objectives: to protect the employment rights of employees working temporarily in another European country; and to prevent unfair competition between businesses in lower and higher-cost European territories.

Far-reaching amendments to this Directive have been suggested over the past few years, and were approved by the European institutions in 2018. This, alongside a more stringent enforcement directive from 2014, means new and far more stringent rules are being applied across European nations. As often with European directives, implementation differs widely between EU states, from a light touch regulation in some to a very strict interpretation in many others.

Millions of workers are posted across the EU annually, and the numbers are continuing to rise. This, alongside the current political focus on immigration across the EU, will ensure greater enforcement of this Directive will be on governments’ (and thus companies’) agendas.

Equivalency of same-sex residency in the EU

In June 2018, the Court of Justice of the European Union ruled in a landmark case that all EU countries must recognise same-sex marriage when evaluating applications for residence rights for dependent same-sex spouses of EU nationals that have resided in other EU countries.

The obligation for a member state to recognise a same-sex marriage concluded in another member state in accordance with the law of that state, for the sole purpose of granting a derived right of residence to a national of a non-EU state, does not undermine the institution of marriage in the first member state. In particular, this obligation does not require the member state to provide, in its national law, for the institution of same-sex marriage. This is a welcome step in driving the move towards full reciprocal spousal rights.

United Kingdom and Brexit

On 23 June 2016, the UK public voted to leave the EU, following a referendum called by the UK government. On 29 March 2017, article 50 was triggered, which started the countdown to leaving the EU by 29 March 2019. This date was postponed to 31 October 2019, and at the time of writing, it is unclear what the most likely outcome of Brexit will be – from a ‘hard Brexit’ to no Brexit at all, commentators have suggested all as possible.

Looking at the issue through this book’s lens of immigration law, there remains a real possibility that we may see significant changes to immigration law in the UK, as well as potentially across the EU and EEA in regard to UK nationals after October 2019. The freedom of movement of people – the right for any EU/EEA citizen to live and work in any EU/EEA member state – has been a defining characteristic of the bloc for almost a generation, and may be lost under a hard Brexit scenario.

However, the UK government has made it clear that all EU nationals in the UK, up to Brexit date (as and when this may come), will have their right to live in the UK protected. The ‘EU Settlement Scheme’ has been set up (and is open for all EU citizens to apply through), to enable the 3.2 million EU citizens resident in the UK and their family members to continue living in the UK permanently. The deadline for applications is currently set as 31 December 2020.

Under the EU Settlement Scheme:

  • EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years, will be eligible for ‘settled status’, enabling them to stay indefinitely;
  • EU citizens and their family members who arrive by 31 December 2020, but will not yet have been continuously resident here for five years, will be eligible for ‘pre-settled status’, enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status;
  • EU citizens and their family members with settled status or pre-settled status will have the same access as they currently do to healthcare, pensions and other benefits in the UK; and
  • close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will still be able to join an EU citizen resident here after the end of the implementation period, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. Future children are also protected.

United States and Canada

The European Commission believes that there should be full visa waiver reciprocity for citizens of all EU member states when travelling to the US and Canada; there has therefore been a push for both countries to lift visa requirements for the outstanding EU member states that still require a visa to enter each respective country. This includes Bulgaria, Croatia, Cyprus, Poland and Romania. Initially, the recommendation had been a temporary suspension of visa-waiver travel to Canadian and US nationals until visa requirements for all EU member states was lifted; however, in May 2017, the European Commission decided against suspending visa-free travel for US citizens. It felt it would be counter-productive to take such action and it also cited progress, particularly with Canada, over the past year, with achieving the goal of visa-free travel for all EU citizens. As the situation currently stands, there will be no changes for US and Canadian citizens travelling to the EU for business or tourism while nationals of Bulgaria, Croatia, Cyprus, Poland and Romania must continue to obtain consular visas prior to travelling to the United States.

On 19 June 2019, a joint EU–US statement following the EU–US Justice and Home Affairs ministerial meeting welcomed continued progress on this issue, with further follow-up planned for the second half of 2019.


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