Brexit Update: Visa-Free Travels From UK to EU

In light of Brexit, the EU has rolled out and approved an immigration-friendly draft law that allows UK nationals to travel to the EU without the need for a visa. The EU approved the draft law on April 04, 2019 in the midst of Brexit discussions. The approved draft law exempts UK nationals from needing a visa to enter the EU for short visits for up to ninety days, in any 180-day period, for business, tourism or to visit relatives or friends. The law does not, however, provide work authorization nor does it permit stays in the EU for longer than 90-days.

This law adds the UK to the list of countries whose nationals are exempted from needing to apply for a short-term visa. Looking into the future, after January 01, 2021, UK nationals will need to apply for ETIAS travel authorization before traveling to the EU. This law will take effect once the UK leaves the EU and is dependent on reciprocity, thus, if the UK requires EU nationals to apply for a visa, then the EU will reintroduce visa requirements for nationals of the UK seeking entry into the EU.

The application of the draft law extends to all EU member states, except Ireland, and extends to the non-EU Schengen countries, Iceland, Liechtenstein, Switzerland, and Norway. UK and Ireland nationals will continue to benefit from the 1949 Ireland Act which provides visa-free travel to Ireland and the UK, even if the UK leaves the EU with or without a deal.

We will continue to monitor updates of this development to determine whether the draft legislation will be formally adopted and published in the Official Journal of the EU.

Brazil Visa Exemption Announcement

Effective June 17, 2019, nationals from the following countries no longer require a visa to enter Brazil for business, tourism, artistic, sporting activities, and activities that are deemed to be in the national interest, for up to 90 days: USA, Australia, Canada, and Japan. Any national from these aforementioned countries will still require a visa up until the exemption takes effect.

PLEASE NOTE: The activities allowed under the visa exemption are very limited. The exempted nationals can only attend business meetings, conferences, and to visit clients, potential buyers, or customers. The exemption does not cover training, technical assistance, transfer of technology, installation, repairs, etc. Violations can result in detainment, deportation, and a significant fine. Please contact our office so that our attorneys may analyze and discuss whether your travels will fall under the exemption.

Brexit Update

Summary

The United Kingdom is set to leave the European Union on March 29, 2019. Discussions between the UK and EU surrounding the withdrawal agreement have been unclear as to how the UK will exit the EU. Nonetheless, immigration policy continues to change and develop amidst Brexit discussions. This update reviews the current Brexit status and the development of new Immigration Rules that the Home Office published on March 7, 2019. Additionally, this newsletter highlights the impact of a no-deal Brexit withdrawal agreement on UK citizens living in certain EU member states, and equally, the impact of a no-deal Brexit withdrawal agreement on EU citizens living in the UK.

Brexit Update

The UK Parliament has voted against a withdrawal agreement on two occasions: January 15, 2019 and March 12, 2019. Most recently, the UK Parliament voted against proceeding with a no-deal Brexit, and in favor of extending the Brexit process. Currently, Prime Minister Theresa May is requesting the EU to postpone Brexit and will soon travel to the EU summit in Brussels to discuss options for the postponement. However, all 27 EU member states must agree to any proposed postponement. As it stands, the UK will leave the EU on March 29, 2019 with or without a deal, unless a postponement is agreed.

Home Office Immigration 

On March 7, 2019, the UK Home Office published a policy paper through which new immigration rules under HC 1919 took effect. Employers need to ensure that the proposed salary for jobs for which a Certificate of Sponsorship is assigned from March 30, 2019 and beyond meet the updated rates outlined below. Additionally, the new rates must also be met for indefinite leave to remain applications. HC1919 amends Tier 2 in the following ways:

Tier 2

  • Salary rate updates in Appendix J: the new rates apply where the Certificate of Sponsorship is assigned on or after March 30, 2019;
  • Wage inflation: minimum earning threshold will be £38,000 for indefinite leave to remain applications made from April 6, 2023 and £40,100 from April 6, 2024;
  • Tier 2 General Cap Scoring – The current salary bands will be replaced. From March 30, 2019, one point will be scored for each extra £1,000 of gross salary. The amount will increase the number of applications that may be awarded monthly;
  • Exemption Extensions: For nurses, medical radiographers, paramedics, and secondary school teachers in mathematics, physics, chemistry, computer science and mandarin, the exemption from the £30,000 minimum salary threshold will be extended until the introduction of the post-Brexit immigration scheme.

Additional Notable Changes

  • New Categories: The Home Office introduced new Start-up and Innovator categories replacing the Tier 1 Entrepreneur, and Graduate Entrepreneur, categories from March 29, 2019;
  • Tier 1 Investor: Tier 1 Investor application requirements will be stricter from March 29, 2019;
  • Fees: Super Priority Service will increase from £610 to £800 per person.

Brexit With A Withdrawal Agreement

For EU nationals and their family members living in the UK today, this piece is largely irrelevant as they will have the opportunity to take advantage of a streamlined approach for remaining and working in the UK post-Brexit. However, if you are not within that category, the following may be informative. The Withdrawal Agreement, as it stands and if ratified, generally provides:

  • A transition period for all UK and EU nationals, and their dependents, whereby the current status would remain the same in order to take the necessary steps to ensure their work and residence status complies with Brexit (the transition period would end on December 31, 2020);
  • Arrangements for all citizens across EU member states and the UK will be similar with minor procedural or administrative differences;
  • All EU citizens residing in the UK before the transition period ends will need to register through the EU settlement scheme prior to June 30, 2021 (dependents with a relationship, pre-dating the end of the transition period, with the qualifying individual may join them at a future date);
  • UK nationals residing in an EU member state, before the end of the transition period, will likely be able to remain and work in the EU state provided that they register according to the uniform EU registration scheme.

Brexit Without A Withdrawal Agreement

A no-deal Brexit means that each EU member state would set its own arrangement and policy for UK citizens seeking to travel and/or work in that country, which could be significantly different among member states, following Brexit. Generally, UK nationals wishing to enter EU member states will immediately be classified as third-country nationals. Certain countries have already released contingency plans in anticipation of a no-deal Brexit, and we have identified trends among the proposals, such as, ‘grace periods’ which would allow individuals and employers to make necessary arrangements according to that member state’s registration scheme. However, grace periods and registration schemes will vary among member states, resulting in immigration inconsistencies across all EU member states.

We have summarized certain EU member state contingent positions below. EU member states have released only partial plans and decrees which must still be adopted into law. Please note that this information is tentative and subject to change:

Belgium

Belgium’s contingency plans for the treatment of UK nationals in Belgium after March 29, 2019 generally provides:

  • A grace period between March 30, 2019 and December 31, 2020 which would allow for UK nationals and their dependents residing in Belgium on March 29, 2019 to keep their current residence and work status as EU nationals;
  • Work rights are expected to be granted, but there are no published contingency plans;
  • UK nationals wishing to reside and work in Belgium post-Brexit would be subject to a regime based on reciprocity with the UK.

Finland

Finland’s contingency plans for the treatment of UK nationals in Finland after March 29, 2019 generally provides:

  • UK nationals who have registered their right of residence and are residing in Finland by March, 29, 2019 will have continued rights to remain and reside without additional measures for a certain grace period.

France

France’s contingency plans for the treatment of UK nationals in France after March 29, 2019 generally provides:

  • A grace period between three to twelve months for UK nationals to apply for a residence permit;
  • UK nationals residing in France for more than five years on March 29, 2019 will need to apply for a long-term residence permit;
  • UK nationals residing in France for less than five years by March 29, 2019 will have the opportunity to apply for different statuses depending on their purpose of stay in France;
  • UK nationals who do not qualify for a status will be eligible for visitor status, but no work status, provided they have the means and are covered by medical insurance.

Germany

Germany’s contingency plans for the treatment of UK nationals in Germany after March 29, 2019 generally provides:

  • UK nationals must hold a certain immigration status to continue residing/working in Germany;
  • Germany will waive the need for UK nationals living in Germany to hold a permit between March 30, 2019 and June 30, 2019;
  • UK nationals will retain the right to reside and work in Germany provided that their immigration application is timely filed and pending.

Netherlands

Netherlands’ contingency plans for the treatment of UK nationals in the Netherlands after March 29, 2019 generally provides:

  • A fifteen-month grace period for UK nationals residing in the Netherlands by March 29, 2019 to apply for a residence permit with the Immigration and Naturalization Service;
  • UK nationals residing in the Netherlands for five years or more are eligible to apply for a permanent residence permit under the same requirements as for EU nationals;
  • UK nationals residing in the Netherlands for less than five years will be eligible to apply for a temporary residence permit under the same requirements as for EU nationals residing in the Netherlands for longer than three months;
  • UK nationals wishing to work and reside in the Netherlands post-Brexit would be required to apply for residence and work authorization, however, no entry permit would be required (an application for residency can be submitted after arrival).

Spain

Spain’s contingency plans for the treatment of UK nationals in Spain after March 29, 2019 generally provides:

  • A transitional period where UK nationals will be provided the opportunity to maintain their residence and work rights in Spain with their current registration certificates and ID cards;
  • UK nationals and their dependents in Spain by March 29, 2019 may request a definitive residence document and will be issued a Foreigner Identity Card which will provide work and residence status through a work permit;
  • Spain seeks to safeguard certain social rights, such as, social security, healthcare, and studies, among others.

Switzerland

Switzerland’s contingency plans for the treatment of UK nationals in Switzerland after March 29, 2019 generally provides:

  • A quota amounting to 3,500 permits for UK nationals on local Swiss employment contracts seeking to enter Switzerland between March 30, 2019 and December 31, 2019;
  • The total quota would be divided between long-term and short-term work permits released on a quarterly basis.

Preparing Your Company

Companies are encouraged to work with Graham Adair professionals to prepare appropriate strategies for EEA employees. We recommend that companies closely monitor their European workforce and update Graham Adair in the event of any employee/employer changes. EEA nationals in the UK should apply for residency now to take advantage of streamlined processes for updating their current permanent residency document to a new residency document after the end of the transition period.

Swiss-based Employers intending to hire British Citizen Workers could face Quota Restrictions from March 20, 2019

If the UK opts for a disorderly withdrawal from the EU in respect of BREXIT and no agreement is reached on immigration arrangements between Switzerland and the UK, then the current practice of Swiss-based employers hiring British citizen workers without quota restrictions in Switzerland will be disrupted.

To prepare for the above scenario in respect of BREXIT, the Swiss Federal Council intends to allocate separate work permit quotas to British citizens from March 30, 2019. The quotas, to be released quarterly, are slated to include 2100 B long-term permits and 1400 L short-term permits, which would be applicable from March 30 to December 31, 2019.

British citizens who relocate to Switzerland for work for the first time would be subject to the above quota restrictions as well as the Act on Foreign Nationals and Integration (similar to Non-EU/EFTA nationals). Swiss-based employers would thus need to take into consideration the work permit quota contingency for British citizen work-arrangements in Switzerland (and also determine alternatives where work permit quotas are not available).

On a positive note, British citizens already legally residing in Switzerland would remain protected under the Agreement on Free Movement of Persons (AFMP), and thus, the quota would not necessarily apply to them.

Where a withdrawal agreement on immigration arrangements is reached between the UK and Switzerland, a transitional period would ensure that the AFMP would continue to apply for an extended time, such as until the end of 2020. During this transitional period, Swiss-based employers would be able to continue hiring British citizens without the above noted quota-restrictions as new bilateral agreements are formed between Switzerland and the UK.

For the present time being it is uncertain whether or not there will be a BREXIT deal and whether a withdrawal agreement will be reached between the UK and Switzerland in respect of immigration arrangements. Swiss-based employers should plan accordingly and stay apprised of developments in this regard.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Finland Immigration Strongly Recommends EU Registration for British Citizens

As Brexit negotiations continue, the Finnish Immigration Service has advised that British citizens currently residing in Finland complete the process of EU Registration as soon as possible in order to retain their right of residence in Finland. This registration is required for British citizens who stay in Finland for longer than three months.

British citizens who have resided legally in Finland for a minimum of five consecutive, uninterrupted years may apply for a Certificate of Permanent Residence as an EU citizen.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Status of EU Citizens in Event of a “No Deal” Brexit

The UK government has released details on the status of EU citizens after March 29, 2019 in the event of a “No Deal” Brexit. EU citizens and their family members who are already UK residents by March 29, 2019 will be able to apply for Settled or Pre-Settled status, and will need to register by December 31, 2020. Switzerland, Lichtenstein, Iceland, and Norway citizens will also need to apply for Settled or Pre-Settled status after March 29, 2019.

EU citizens entering the UK after March 29, 2019 will be able to enter, but will need to apply for a Leave to Remain through the Home Office for European Temporary Leave to Remain if they intend to stay longer than 3 months. This temporary leave will be valid for up to 36 months, and will cover both work and study, however it will not be extendable, and will not lead to settlement. After these 36 months, EU citizens who intend to stay in the UK to work or study will need to qualify under the new immigration scheme.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

France’s New Immigration Law Increases Restrictions on Intra-Company Transfers

Employers of foreign workers in France should take note of increased restrictions placed on Intra-Company Transfer (ICT) Work Permits (Secondment) pursuant to the implementation of France’s 2018 Asylum and Immigration Law, which will go into effect on March 1, 2019.

The ICT Work Permit (Secondment) provides an avenue of mobility for an employee from a company outside of France to be transferred to a company in France that belongs to the same corporate group.

Under the 2018 Asylum and Immigration Law, restrictions on the ICT Work Permit (Secondment) will be increased as follows:

  • Assignee must have at least six (6) months of seniority within the group companies outside of France (comparison: changed from at least three (3) months);
  • The maximum time period for the corresponding residence permit is three (3) years and such residence permit is nonrenewable (comparison: previously the nonrenewable aspect for residence permits was not clearly stated); and
  • For an assignee to undertake a follow-up secondment, there must be a cool-off period of at least six (6) months where the assignee has resided outside of France (comparison: previously there was no cool-off period requirement).

Employers of foreign workers in France should identify which current and potential employees may be affected by the increased restrictions in respect of ICT Work Permits (Secondment) and plan accordingly.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

UK: Public Test Phase of EU Settlement Scheme Goes Live and Fee Removed

The first public test phase for the EU Settlement Scheme went live on January 21, 2019.

At present, eligible applicants only include (i) EU citizens who have a passport embedded with a biometric chip; and (ii) non-EU family members who have UK residence cards embedded with biometric chips.
Irish citizens may apply during the current phase, but are not required to do so. Citizens of Norway, Switzerland, Liechtenstein, and Iceland (and family members) cannot apply until a later stage.

Eligible applicants must use the EU Exit: ID Document Check App on an Android smart device to check their biometric chip embedded passport or UK residence card. If the biometric chip is damaged or defective, the respective applicant may send identity documents to the Home Office for inspection. Upon the EU Settlement Scheme being fully rolled out, the EU Exit: Document Check App will then become optional and applicants can choose to post identity documents to the Home Office instead of using the app.

In respect of applications, the Home Office will work to verify eligibility for settled or pre-settled status by cross-checking residency in the UK according to National Insurance numbers, HMRC, and/or DWP records. Where documentation is insufficient to confirm eligibility, uploading of additional supporting documentation may be permitted within limits.

In related news, in a recent speech at the House of Commons, Prime Minister Theresa May stated that when the EU Settlement Scheme is rolled out in full on March 30, 2019, the UK government will waive the application fee. Further, for EU citizens who have already applied during the pilot phase, fees paid will be reimbursed. The intent of these changes is to remove financial barriers for EU citizens seeking to stay in the UK.

If you have any questions, please feel free to contact your Graham Adair representative.

Brexit Deal or No Deal – Transition Period in Netherlands may Soften Impact on Resident British Nationals under No Deal Scenario

Current and future employers of British nationals in the Netherlands will likely be impacted by the Brexit deal or no deal scenarios between the EU and UK.

At present, British nationals and their non-EU family members are not required to obtain residence permits in the Netherlands, although EU citizens are required to register as EU citizens. However, this arrangement would likely change if no deal is reached regarding Brexit between the EU and UK.

If a Brexit deal is not reached, British nationals (and their non-EU family members) residing and working in the Netherlands will be required to obtain residence permits. Accordingly, under this scenario, the Netherlands Immigration and Naturalization Service (IND) would commence a transition period for British nationals and their non-EU family members, starting from Brexit Day, March 29, 2019, and lasting until July 1, 2020.

During the transition period, British nationals and their non-EU family members would be allowed to maintain residency, employment, and study rights in the Netherlands. Prior to March 29, 2019, Dutch authorities intend to send out official letters, which would serve as proof of temporary residence. These official letters would remain valid until July 1, 2020. However, after July 1, 2020, British nationals would be required to have obtained Dutch residence permits in order to work in the Netherlands. The application process for such residence permits would mean that British nationals would be required to meet the same eligibility requirements as EU citizens (including sufficient income, health insurance, payment of applicable fees, and so on).

To facilitate the application for residence permits under the no deal scenario, Dutch authorities intend to send out a notice letter by April 1, 2020, notifying individuals to apply for residence permits. Non-EU family members of British nationals who are also living in the Netherlands would also likely be required to obtain residence permits.

Employers of British nationals in the Netherlands must stay abreast of developments in any Brexit agreement, and ensure proper measures are timely taken so that British national employees and their non-EU family members maintain proper immigration status in light of the Brexit situation.

Regarding EU citizens in the UK, pursuant to a UK government policy paper dated December 6, 2018, EU citizens residing in the UK by March 29, 2019 will remain eligible to participate in the EU Settlement Scheme even under a “no deal” scenario. Accordingly, those EU citizens residing in the UK by March 29, 2019 will have until December 31, 2020 to apply and register for “Settled” (if they have lived in the UK for more than five years) or “Pre-Settled” status (if they have lived in the UK for less than five years). Other EU citizens who enter the UK after March 29, 2019 will be treated differently in that only British laws will apply to them in respect of their immigration status.

If you have any questions, please feel free to contact your Graham Adair representative.

EU Settlement Scheme and Immigration Impact

Companies with European Union (EU) citizen employees in the United Kingdom (UK) and/or with UK citizen employees in the EU need to be aware of the impact of the potential deal reached between the UK government and the EU, the EU Settlement Scheme.

If the EU Settlement Scheme is approved by the UK Parliament (set to take place by Dec 21, 2018), after the UK leaves the EU on March 29, 2019, then EU citizens residing in the UK and UK citizens residing in the EU would be able to continue to be residents in the UK or EU, respectively, without material impediment.

The approval or non-approval of the EU Settlement Scheme could result in varying scenarios. 

Scenario One: EU Settlement Scheme Approved

For those EU citizens who entered the UK prior to Dec 31, 2020 (and have no serious criminal convictions), such persons would be eligible to obtain pre-/settled status. The EU Settlement Scheme is slated to become operational from March 30, 2019, and would likely give EU citizens (and their family members) a grace period to apply for pre-/settled status until June 30, 2021.  

Scenario Two: EU Settlement Scheme Not Approved

If there is not a deal reached, EU citizens residing in the UK by March 29, 2019 would still have their rights fully protected by the UK government. For EU citizens, however, there would not be an implementation period and EU citizens would only have until Dec 2020 to complete an application. 

Close Family Members of EU Citizens

Spouses and children of EU citizens with settled status can be joined in the UK until March 29, 2022, only if the relationship existed by March 29, 2019 (and continued to exist up to the time of application).  

To join EU citizen family members after March 29, 2022, the spouses and children will need to apply under UK Immigration Rules.  

Benefits and services will still be accessible for those EU citizens and family members lawfully residing in the UK by March 29, 2019. 

EU Identity Cards & UK Entry

Although EU identity cards will remain valid after January 1, 2021, after the UK government introduces its new immigration system, it is uncertain that EU citizens will still be able to use their national ID cards for UK entry. 

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

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