In a series of articles exposing changes to global mobility and immigration policy in Western Europe, member firms of Ius Laboris examine the developments
Here, they discuss changes within immigration policy in Austria, Belgium, Germany, Italy and the United Kingdom, where Brexit-influenced policy is at the fore.
The prerequisite of ‘sufficient means of subsistence’ for grant of Austrian Citizenship ruled not age discrimination
A general prerequisite for the granting of the Austrian citizenship is, usually, that the applicant has sufficient means of subsistence, unless this is not possible because of reasons for which he or she is not responsible (e.g. disability or illness of the applicant).
In cases in which it is no longer feasible to expect an applicant to find employment because of his or her age, the applicant has to prove that he or she is entitled to a pension or similar payment to cover his or her subsistence needs.
In a recent decision (VfGH 26. 6. 2019, E 89/2019), the Austrian Constitutional Court clarified that this requirement does not constitute discrimination on the grounds of age. This means that a request for proof of sufficient means of subsistence based on the entitlement to pension payments (for older individuals who are no longer in employment and have no realistic expectation of future employment) is not discriminatory.
Changes to European blue card procedure and permits for foreign seasonal workers now in force
From 1 September 2019, the ‘Single Permit’ procedure also applies for the European Blue Card, a stable element for immigration policy in Western Europe.
Further, the rules concerning work authorisations for non-EEA and Swiss seasonal workers for a maximum of five months per period of 12 months also entered into force from 1 September 2019. In Flanders and Wallonia, a work authorisation (a Single Permit if for more than 90 days) for seasonal workers can be obtained on certain conditions in the hotel and catering industry and in agriculture and horticulture.
In Brussels, a work authorisation (a Single Permit if for more than 90 days) for foreign seasonal workers can only be obtained in agriculture. Unlike in Wallonia, in Flanders and in Brussels a mandatory labour market test, however, still applies.
Employment Ministry publishes key points on implementation of Posted Workers Reform Directive
The German Ministry of Employment and Social Affairs has published key points on the intended implementation of the Posted Workers Reform Directive (EU) 2018/957 entitled ‘Equal pay for equal work for everyone in Europe: Preventing wage dumping. Ensuring order on the labour market. Shaping mobility fairly’.
According to these key points, the Ministry intends to introduce a draft statute that will amend the German Posting of Workers Act (which currently implements the ‘old’ Posted Workers Directive 96/71/EC) in line with the EU Reform Directive.
Although the Ministry expressly intended to publish a draft statute in line with these key points ‘in summer 2019’, this draft has not yet been published. However, since the Reform Directive must be implemented into member states’ national law by 30 July 2020, the draft statute, which must still pass the legislative procedure, is expected to be published soon.
New Employment Office guidelines relating to transnational secondments
In August 2019, the Employment Office published practical guidelines following its previous instructions released with the circular No. 1/2017.
The new instructions provide confirmation on many practical issues regarding how to manage a transnational secondment, including, inter alia, the main features of the contact person acting as the representative of the service provider.
This could be one of the seconded employees, an assistant of the employer or even a third party (such as a payroll provider). The contact person’s duty is to support the service provider in taking the correct administrative steps without in any way taking on any joint liability. The guidelines also provide indications on terms and conditions of employment (e.g. compensation) and criteria to identify a non-genuine secondment.
5. United Kingdom
UK Government publishes no-deal Brexit immigration policy
On 4 September 2019, the UK Government announced that in the event of a no-deal Brexit, freedom of movement will continue until 31 December 2020. However, after Brexit, EEA and Swiss nationals, along with their spouse or partner and children under 18 can voluntarily apply for European Temporary Leave to Remain (‘Euro TLR’), which will be a free, online application and subject to criminality checks. The status will be valid for 36 months from the date of grant and does not restrict allowed activities.
The advantage of holding Euro TLR is that time spent with this status can be counted towards settlement in a category that leads to settlement under the immigration system that is due to be implemented from 1 January 2021. Those who do not apply for Euro TLR or under another immigration category must leave the UK by 31 December 2020.
Contributing members to this article include:
Birgit Vogt-Majarek and Stefan Burischek, of Schima Mayer Starlinger Rechtsanwälte GmbH in Austria
Sophie Maes of Claeys & Engels in Belgium
Julia Uznanski of KLIEMT.HR Lawyers in Germany
Avv. Valeria Morosini of Toffoletto De Luca Tamajo e Soci in Italy
Andrew Osborne at Lewis Silkin LLP in the United Kingdom