by Gunther Mävers, ABIL Lawyer
#GERMIMMLAW

According to the most recent statistics as published by the OECD for 2012 Germany having seen a significant growth of migration in comparison to last year has been skyrocketed to the second place of the list of the the world’s top migration spots right after the United States of America.

“Germany became the second-largest immigration country, after the United States, in the OECD in 2012, receiving more than 10% of all permanent immigration to the OECD area. In 2009, it was only the eighth largest. This spectacular increase has been fuelled mainly by inflows from central and eastern European countries and, to a lesser degree, southern Europe.”

Cf. also an article as published by Bloomberg.

And it seems to get even better. Based on the official statistics as published by the Federal Statistic Office for 2013 no less than an additional 146.000 foreigners (that equals to a surplus of 13 % in comparison to 2012) have migrated to Germany – the total number of foreign migrants for 2013 being 1.108.000. Since during the same period 649.000 foreigners have left the country there is a significant migration surplus of 459.000 foreigners (as opposed to the alreay high number of 387.000 in 2012). That is the highest growth to report since 1993 (!).

These good news are partly due to the fact that the economies of the Southern European countries are (still) not doing well (e.g. Greece, Italy, Portugal and – to a lesser extent – Spain) and others are also struggling to a certain extent (e.g. France, Netherlands) whereas Germany is happy enough to have a very strong economy despite of the economic crisis on a global scale and therefore is in a position to add a lot of fuel to the EU engine to keep it running. The fact that Germany is getting more attraction is however mainly due to the stable political situation and the reliable legal system that together create an enviroment that apparently seems to be friendly to investors and new arrivals. With regard to the latter one can say that this is not limited to the conditions for migrating to German and the possibilites to secure a “residence title for the purpose of gainful employment” (the offical name of the work permit) – even though the subject matter is still highly regulated and way too complexe in my opinion. Moreover, the frame conditions for establishing a business in Germany, for entering into business relationships by way of contracts with business partners and customers and also – if need given – to litigate are generally seen as advantageous.

At the end of the day it is the mix of all these aspects that makes migration to Germany even more succesful than it used to be over the last couple of years. There is nevertheless no need to stop thinking about how to improve the set of regulations that currently apply. From a corporate immigration law practioner’s standpoint, I am still convinced that with regard to the German immigration law system and its regulations there is still a lot to be changed. For instance, the fact that for many visa categories a local employment contract is a must does pose as many problems as the condition to have health insurance that is at least equivalent to German standards (this being rather difficult if not impossible to proof when having no local coverage). Moreover, processing times are still way too slow not to mention the lack of communication by some (not all of course) authorities. Finally, there should be access to a fast track procedure and to special authorities or competence centers whenever corporate immigration is at stake.

A final comment since this has been discussed a lot in Germany and perhaps also abroad over the last couple of days: It is by coincidence that on the same day the Federal President Gauck has been welcoming any immigrant to Germany by stressing that immigration is key to Germany whereas Chancellor Merkel has been making the point that Germany is not in favour of any misuse of the EU social union rights. This is however no contradiction since the issues at question do quite differ. Gauck has been addressing the issue from a more general standpoint in a speech at the occasion of the 65th anniversary of the Federal Consitution whereas Merkel has been rather commenting on the opinion of the Advocate General preparing the upcoming decision of the European Court of Justice (that in most of the cases follows the opinion) according to which any member state can limit the social rights of EU nationals that have not really sought employmetn during their stay whils receiving social welfare benefits after a period of 6 months. To a certain extent her comment may also be put down to the fact that we are having elections on both the local and the EU level on Sunday so by her commente she has probably also tried to tiece some votes away from EU sceptical right wing parties (that unfortunately have a lot of access notably in the UK and France). At the end of day I do nevertheless strongly believe that both of them are in favour of migration to Germany and are absolutely right!

Looking forward it will be interesting to see if in 2014 Germany can keep the pace and continue or even increase its migration to the country so please stay tuned …

by Gunther Mävers, ABIL Lawyer
#GERMIMMLAW

Since December last year and then continuously growing since the beginning of this year the issues related to (corporate) immigration are getting more and more attraction in politics in Germany this being well reflected by many articles dealing with the issue in the press on a nearby daily basis. In my opinion this is due to various reasons:

Firstly, whereas the discussion – if and how corporate migration to Germany should be facilitated and how talent can be attracted to Germany – has been running at various levels for many years the topic recently has made it to the front pages due to the fact that from 1st January 2014 on Romanians and Bulgarians have been entitled to freely move within the EU without any limitation. It all started with a discussion in the UK that is rather hostile and driven by the fear that, after having taken on hundreds of thousands of Polish nationals after they have been granted full movement of labor rights effective as from 1st, January 2004, now the Romanians and Bulgarians would be “flooding” the country. Some politicians where even suggesting to limit the right of Bulgarians and Romanians to move to the UK and to engage into employment, which is absolutely pointless since any such peace of legislation would clearly be violating EU law.

Secondly, the discussion, which was mainly initiated by the UK, has also been taken up in many other Western European countries, including Germany where nationals from Romania and Bulgaria have been generally accused of wanting to migrate to Germany for the main (if not only) purpose of receiving social welfare benefits from the German state. The latter seems, however, to be proven wrong by statistics as recently published by the Cologne Institute for German economy according to which the percentage of academic backgrounds of migrants from Romania and Bulgaria is even higher than with German nationals. Moreover, many politicians and experts have made it clear that Germany should focus on creating an atmosphere of welcoming rather than trying to block the country for talent that is desperately needed.

Thirdly, the issue is getting attraction for a far more wide-reaching and general reason. According to statistics Germany – like many other EU member states – has both an aging and a decreasing workforce and population. Against this background, it is highly likely that in a number of years (not even decades) Germany will desperately need to rely on foreign workforce. Hence, it is stressed that instead of making the right to immigrate and work in Germany subject to the exception that no third-country national shall be allowed to engage into employment without a residence title allowing him or her to do so this should be rather changed to the opposite.

It is true that over the last couple of years it has been already made a lot easier to attract talent and to secure work permits for companies investing in Germany and the individuals that they want to employ. However, there is still potential for improvement and there are still too many bureaucratic obstacles making it to difficult or even impossible to get the right people into the country which must – based on the needs of nowadays business – often be realized at short notice. Germany needs to improve its system in order to make sure that immigrants feel that they are welcome in the country.

Gunther Mävers ([email protected]), Cologne, January 2014

from ABIL Global Immigration Update

Changes to the Immigration Rules in December now prevent Tier 1 (Investor) migrants from working as professional sportspeople. In the past, the investor route had been used during the January transfer window by football (soccer) players to circumvent the stringent Sports Governing Body endorsement criteria in the dedicated sporting routes in Tiers 2 and 5. Current Football Association (FA) rules dictate that unless a player has played at least 75% of international matches for his or her country in the last two years, he or she is ineligible for a UK visa. However, most transfers could avoid this requirement by subscribing to the investor category.

It is expected that this change in the rules may prevent sportsmen and women as well as coaches and other sports professionals from moving to the UK.

from ABIL Global Immigration Update

In September last year, the UKBA awarded a multi-million pound contract to the private outsourcing company Capita to track down and remove 174,000 people who had either entered the country without authorization or overstayed their period of admission. Reports have been received of people receiving incorrect text messages from Capita over the holiday period informing them that they must leave the country, even people with British passports. It seems that Capita is relying on records held by the UKBA, some of which appear to be out of date. Capita has confirmed that a contact telephone number is provided with the text message so that those contacted can discuss their cases. Home Secretary Theresa May has promised to investigate these errors.

from ABIL Global Immigration Update

Following the proposed Statement of Changes to the Immigration Rules in November, the UKBA has clarified the changes to the Tier 2 cooling-off period mentioned above.

The 12-month period during which a Tier 2 migrant must remain outside the UK can begin on the date the migrant actually leaves the United Kingdom, rather than on the expiration date of the visa or the date the UKBA cancels the visa. The UKBA has clarified that the following evidence is acceptable:

• Travel tickets or boarding card stubs, coupled with a Sponsor Management System report from the sponsoring employer, confirming that the Tier 2 migrant's employment in the UK has ended;
• Exit or entry stamps in the migrant's passport that confirm that they were no longer in the UK; or
• A letter from the migrant's overseas employer confirming the date he or she started work overseas after returning from the UK.

When someone switches into another category, his or her leave in the new category should supersede his or her previous leave. In such a case, the cooling-off period would start from the date of switching.

from ABIL Global Immigration Update

Some recent laws have been signed by the President of Russia and are due to come into force shortly.

One of the Federal laws (#3030-FZ "On amendment to articles 25 and 26 of the Federal law and on rules of departure from the territory of the Russian Federation and entrance to the Russian Federation") provides for long-term visas (for up to five years) for representatives and employees of multinational companies investing in Russia. The criteria for such companies will be stipulated by the Government of the Russian Federation. Such visas will be issued without any official invitation letter processed by Federal Migration Service (FMS), while the basis for a visa issuance will be the application of a particular authority stipulated by the Government of the Russian Federation and sent to a consular post of the Russian Federation.

Another amendment to this law (#321-FZ) suggests establishment of a ban on entry into the territory of the Russian Federation within three years for foreign citizens and persons without citizenship, who during their previous visit to Russia without a good reason overstayed for longer than 30 days beyond the end of the allowed term of stay.

The Criminal Code has also been amended to strengthen the responsibility for organizing the illegal entry into Russia of foreign citizens and persons without citizenship and their illegal stay and illegal transit, as well as for crossing the Russian border by those individuals whose entry into the Russian Federation is not authorized. The law provides for an increase in the fine amount of up to three hundred thousand rubles and increased terms of punishment for organizing illegal migration.

Employers can now file an electronic application via the Internet for employment and work permits (as well as amendments, renewals, and duplicate documents) to the FMS. However, paper documents still must be provided to the FMS while the application is pending.

In addition, the law allows employers to use foreign workers with temporary residence permits in the Russian Federation without any additional documents, such as employment or work permits.

from ABIL Global Immigration Update

On January 28, 2013, an updated Life in the UK Test handbook was published for all applicants wishing to settle in the UK or apply to be naturalized as a British citizen. The updated handbook will be applicable to the new Life in the UK test, which will be introduced on March 25, 2013.

Those who have already taken the existing test but have yet to submit their indefinite leave to remain or naturalization applications do not need to take the new test, even if they will not be submitting their applications until after March 25.

Those who intend to take the Life in the UK test after March 25 should review this latest handbook because the new test will include questions on all sections of the new handbook and not just a few selected chapters, as is the case now. There is also a greater focus on British culture and history in the new test. Full details of where to purchase the handbook and how to take the test can be found on the UKBA WEBSITE.

from ABIL Global Immigration Update

There is a renewed focus on compliance issues.

There has been an increasing focus on compliance issues in Belgium, such as in the field of cross-border employment. For example, the Belgian government has begun an initiative against fraud and abuse regarding social security in the context of international mobility.

European regulations have set rules to determine what legislation applies in a particular situation. For example, an employee who is posted by his German employer to Belgium will, under certain conditions, remain subject to German social security; he will receive an "A-1" document from the German social security authorities as proof.

At present, as confirmed by European case law, European Union Member States' courts must accept an A-1 document, even if it is subject to discussion. Only the Member State that has issued the document can withdraw it. For instance, if there were discussion about the real nature of the posting of the German employee to Belgium, a Belgian court must still accept the German A-1 document as long as it has not been withdrawn.

A new rule effective January 10, 2013, entitles Belgian courts to set aside the European coordination rules in the event of "abuse," which is defined as the incorrect application of the European coordination rules to try to avoid being subject to Belgian social security. The Belgian courts could, in the event of such abuse, decide that Belgian social security applies anyway. For example, if the Belgian court believes that there has been fraud or abuse of the European coordination rules and that the German employee is not posted to Belgium but in fact works under the authority of the Belgian third party, it can set aside the German A-1 document.

This new rule is controversial, especially in light of European law.

from ABIL Global Immigration Update

The recent change of government in the Netherlands has affected the country's immigration regulations.

A proposal to amend the Dutch Nationality Act will be withdrawn, the government announced on November 27, 2012. The proposal was sharply criticized, particularly its provisions to further reduce dual nationality. The current law already generally prohibits dual nationality, but applicants who are married to a Dutch person were exempt, as were Dutch nationals who acquire the nationality of another country and are married to a person of that nationality. Other measures that will not go through now include the introduction of an income threshold and a qualification requirement (at least two years of work experience in the Netherlands or at least two years of vocational qualification in the Netherlands).

Also, as of January 1, 2013, the financial penalties for non-compliance with the Employment of Foreigners Act (EFA) have increased drastically. Companies employing foreigners without the required work permit were previously fined € 8,000 per employee. This will be raised to € 12,000. In case of a second offense within five years, this amount is raised by 100% to €24,000 per employee (previously two years), or € 36,000 per employee if the EFA is violated for the third time within the five-year period. The company can also be shut down for up to three months if three offenses occur within five years, provided that the company has been warned in advance about the possibility of being shut down.

There is better financial news for family reunification applicants. Filing fees are reduced considerably as of January 2013. The reduction is a direct consequence of a long-pending complaint of the European Commission against the Netherlands. The Court of Justice of the European Union (CJEU) ruled on April 26, 2012 (C-508/10) that the government fee of € 401 for a European Community long-term resident permit is "excessive and disproportionate." The Dutch High Administrative Court followed this ruling in a judgment of October 9, 2012, on the Family Reunification Directive, applying the same principles of EU law as the CJEU. In response to this ruling, the Netherlands' State Secretary for Security and Justice announced that the government fee for family reunification would be reduced from € 1,550 to € 225 for visa nationals, and from € 1.250 to € 225 for visa-exempted nationals. The government fee for an EU Blue Card remains at € 750. Because the EU Blue Card is also based on an EU Directive, it could be argued that this amount is also "excessive and disproportionate."

In other news, some important restrictions on family reunification were introduced on October 1, 2012, of which the most remarkable was the abolition of conjugal partner immigration (with the exception of couples who are not allowed to marry according to the laws of the country where they live). This was introduced only days before the former government was replaced by the current one, and when the newly elected Parliament had already spoken out against such restrictions. This political gambit has not yet led to a clear announcement that the measures will be withdrawn or to continued opposition in Parliament. It remains to be seen if these measures will be maintained.

from ABIL Global Immigration Update

The salary thresholds for permits for highly skilled migrants (knowledge migrants) and EU Blue Card holders as of January 1, 2013, have been published. Foreigners aged 30 or over must earn a gross annual salary of € 52,010 to be eligible for a residence permit to work as a highly skilled migrant. For foreigners under the age of 30, the highly skilled migrant salary threshold is € 38,141. For graduates in the Netherlands, the threshold is € 27.336.

The salary threshold to acquire the EU Blue Card residence permit is € 60,952.