Frontiers - October

In the first edition of our immigration focused newsletter we give a snapshot of the latest immigration law developments below.

Please get in touch with your usual Taylor Wessing contact if you would like to discuss anything you have seen in the newsletter.

Portugal

Changes to Portugal’s Golden Visa Program approved: real estate investment and capital deposits removed

On 7 October 2023, the Portuguese government introduced a new law as part of the Programa Mais Habitação (‘More Housing Program’) as Portugal addresses its housing crisis. The law has impacted the real estate sector in particular, including a major change to the Residence Permit for Investment Activity (Golden Visa). New Golden Visa applications related to real estate investments or capital deposits are no longer accepted, but the possibility of renewing current processes is safeguarded, both for investors and their family members. Pending applications and the renewal of Golden Visa processes will therefore remain valid but will be converted into a Residence Permit for Entrepreneurial Immigrants. Requirements for the new permit will not change significantly and permit holders will only need to comply with the minimum permanency requirement of seven days, consecutive or not, during the first year and 14 days, consecutive or not, during the subsequent two years. To ensure compliance, the competent authorities will verify the permit holder’s investments with the corresponding entrepreneurial project.

When?

The law came into force on 7 October 2023.

So what?

The submission of new Golden Visa applications remains possible under different types of investments provided that they are not directly or indirectly intended for real estate investment. If you wish to invest through one of the remaining possibilities or for general legal assistance surrounding the changes, please contact Antas da Cunha at ECIJA law firm in Portugal.

Find out more.

United Kingdom

The UK fee increases for visa applications

The UK government has announced visa fee increases in order to raise £1 billion to fund public sector pay rises. Work and visit visa fees will rise by 15% while student visas, certificates of sponsorship, settlement, citizenship, and all other visa applications will see a 20% increase. Additionally, the Immigration Health Surcharge (IHS) will increase to £1,035 for adults, and £776 for students and under 18s.

When?

Most fee increases are effective from 4 October 2023, however the IHS fee increase will arrive later this year or early 2024.

So what?

Applicants may wish to take advantage of current rates and apply before the IHS fee increases. Employers with foreign workers should factor in these increases when budgeting for the financial year or planning for expansion, and consider what visa costs the business will cover for workers and potentially their family members too. In sponsored cases, note that it is unlawful to require the applicant to pay for the Immigration Skills Charge, as that is a tax on sponsors. Options such as clawback agreements to lower company costs may be considered. Consult a lawyer to check enforceability.

Find out more.

Fines tripled for employing illegal migrants in the biggest shake-up of civil penalties since 2014 

The government will more than triple fines for employers (and landlords) who employ (or rent property) to illegal migrants. If a company hires illegal migrants, civil fines for a first breach will now be up to £45,000 per worker (previously £15,000) and £60,000 for repeat breaches (previously £20,000). Later in 2023 the Home Office will consult on further options to deter licensed businesses who are employing illegal workers. 

When?

Fines are expected to be introduced in early 2024.

So what?

To avoid fines, employers should carry out right to work checks on anyone they plan to hire and regular checks for those workers with time-limited visas. Employers that are sponsors must complete these checks as an essential sponsor duty.

Find out more.

Czech Republic

New pathway for remote workers to stay in Czechia: foreign nationals can now obtain a digital nomad visa to freelance or telework for their home country employer

The digital nomad visa is gaining popularity across EU nations, with numerous countries adopting similar systems, and Czechia is no different. Employees working remotely for a company abroad can apply for the long-term visa under the category “other” while self-employed freelancers can apply under “business” purposes. They must have three years' experience in IT or a STEM degree and earn 1.5 times the average gross salary to qualify. The visa will cost around £88, last one year, and only people from certain countries can apply (Australia, Canada, Japan, New Zealand, South Korea, Taiwan, the United Kingdom, and the United States.) Dependants can also apply for ‘family’ purposes; however, they cannot work under the main applicant’s visa. 

When?

Effective since July 2023.

So what?

This is a new pathway for those seeking to live and work remotely in the Czech Republic. While remote work is becoming increasingly popular, employers must be aware of the legalities and noncompliance risks involved, which could lead to tax law issues or even the loss of the right to hire foreign workers. 

Germany

Germany’s job crisis: a new Canadian-style points-based system approved to attract migrants with or without a job offer

The Bundestag has u-turned on immigration and approved reforms to the Skilled Immigration Act, introducing the points-based Chancenkarten (Opportunity Card) to tackle its labour shortage of 630,000 workers. With over half of German companies struggling to fill vacancies, the new law will lower the criteria for salary, education and German language ability, and non-EU skilled workers who can financially support themselves will be able to live in the country for up to a year while they seek employment. The visa’s appeal includes the applicant’s right to bring not only their spouse and children but also their parents, along with the opportunity to attain citizenship after five years of residency (instead of the existing eight-year stipulation). Unlike regular visas, Chancenkarten holders can also switch jobs and work temporarily or part-time while seeking long-term employment. The government also announced that the Western Balkans Regulation quota will be doubled with up to 50,000 nationals being allowed to enter Germany without proving professional qualifications.

When?

Passed 23 June 2023, implementation is planned to take place in three stages in November 2023, March 2024 and June 2024.

So what? 

Currently, work visas are only granted to non-EU citizens with a firm job offer. Once enforced, the new points system along with other changes to the Act will create many more opportunities for migration and citizenship in Germany, particularly for those wanting to work in IT, electrical engineering, construction, health, and education. 

Hungary

Hungary for workers: new ‘guest worker’ residence permit approved in The National Assembly

The new guest worker permit for third country nationals aims to tackle labour shortages in national investment. Normally permits can take up to 90 days to be approved by the immigration authority, however this permit will be fast-tracked and will not require an official opinion from the labour authority (although renewal may require this). While it simplifies the process, it comes with certain trade-offs. The permit is valid for two years with a one-year extension and is not a route to permanent residency which is normally gained after three years in Hungary. Applicants also cannot bring their dependents through family unification. Only people from certain countries can apply, some of which include Vietnam, Ukraine, Russia and Indonesia, and employers must seek local labour from Hungary or the EEA before accepting international applicants. 

When?

Effective from 1 November 2023. Details on eligibility and procedure will be released by then.

So what? 

This is a new streamlined option which may suit some employers more; however, when considering this option, companies must be aware that guest workers cannot switch categories and must return to their country of origin to re-apply. If a guest worker overstays their visa, companies may have to shoulder the worker’s deportation (or possibly detention) costs. Eligible employers include EOR work agencies and those in the Key Exporter Partnership Program.

Spain

Temporary residence permit holders can now spend over six months outside Spain without having their visa revoked

Previously, temporary permit holders could only travel outside Spain for six months in each year (similar to the UK’s continuous residency requirement under the EUSS) however, now permit holders can enjoy more flexible travel. This comes after the Spanish Supreme Court’s decision in June to nullify the clause which enabled the permit’s cancellation after six months away. This may also benefit non-working permit holders as they can maintain residency status even if they are in Spain for under 183 days and will not be considered a tax resident.

When?

Effective now.

So what?

The Supreme Court suggested that this rule must be codified in statute if it is to be reinstated, so this could indeed happen if the Cortes Generales decide to pass it. For now, holders can take advantage of the extended travel time and renew their permits. It is important to note however that applicants wishing to gain permanent residency cannot spend more than ten months outside Spain in the five-year period preceding their application.

Belgium

Variations to permit processing times and the shortage occupation list in Vlaanderen/Flanders

Some permit applications in Belgium are still facing long processing times with certain applications increasing from two months to a three month wait on average including the EU Blue card and highly qualified permit. Meanwhile, most renewal applications (excluding the shortage occupation work permit) are being processed in half the time, with a one month wait on average. The government also updated the shortage occupation list (currently updated biennially), removing several occupations including chefs and data communication installers and adding some, including bricklayers, bus drivers and floor tilers.

When?

Delays with processing times are ongoing.

So what?

Plan ahead: employers must consider the possibility of longer processing times when deciding on employee start dates to ensure a smooth transition, particularly as the permit application process is a two-stage one, with the second stage taking up to three months.

Ukraine/United States

The US has expanded its Ukrainian immigration program, welcoming approximately 166,700 new applicants 

In August 2023, the US Department for Homeland Security announced an 18-month extension of Temporary Protected Status (TPS) relief for Ukrainian nationals. For Ukrainians that already have TPS, there is a 60-day re-registration period until 20 October 2023. To provide continuous support for those affected by the war, the DHS has also implemented a reclassification of TPS for Ukrainians who were in the US from 16 August 2023, allowing them to apply for TPS. This includes those without immigration status and illegal immigrants which the DHS estimates to be 166,700 people.

When?

Temporary Protected Status is extended from 20 October 2023 to 19 April 2025.

So what?

TPS allows nationals from other countries who are affected by such circumstances to temporarily live and work in the US. This extension aims to provide support to those affected by the ongoing conflict.

United Kingdom

Updated statement of changes in the UK: a summary

Those who hold Pre-Settled Status under the EUSS need not to apply for renewal, as their status will be automatically renewed for two years if they have not yet attained Settled Status. Additionally, once the continuous residency period of five years is achieved, Settled Status will automatically be granted provided that the Home Office can digitally verify the visa holder’s identity. 

The right of administrative review of EUSS decisions will be removed for all decisions after 5 October 2023, including pending applications. However, the right of appeal remains, aligning with the Citizens’ Rights Agreement. 

The family member of a qualifying British citizen residency route (Surinder Singh cases) will be removed, along with the primary caregiver of a British citizen route (Zambrano cases) excluding pending applications. 

Australian and Canadian citizens applying under the Youth Mobility Scheme can now apply up to age 35 (previously age 30) with a three-year grant of leave, and Andorra has been added to the list of participating countries. Further, six new methods of meeting the English language requirement have been introduced: GCSE, A-level, SNQ 4 or 5, Scottish Higher, and Advanced Higher. 

When?

Most of these changes will take effect from 5 October 2023 while some changes to the Youth Mobility Scheme will be implemented on 31 January 2024. The new ETA Scheme for Qatari nationals will also launch in October, with a broader rollout in February 2024.

So what?

These latest updates could significantly impact planned applications and opportunities. It is important to fully understand the changes. For example, under the EUSS, if there was an absence from the country of more than six months per year during Pre-Settled Status, the automatic extension may not prove beneficial in terms of Settled Status. For more information on the changes or for any advice please contact our Mobility team.

This newsletter is a joint collaboration with colleagues of our strategic partner ECIJA:

• Bruna Casagrande
• Carlos Martínez Cebrián
• Ignacio Peyro
• Pedro Da Quitéria Faria
• João de Moraes Vaz