May 2016 Global Immigration Update

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  1. REFUGEES AND RELATED BENEFITS: AN OVERVIEW – This article provides an overview of recent developments with respect to refugees and the benefits granted to them.
  2. CANADA – Many are being caught unprepared by new primary inspection tools.
  3. ITALY – Several developments have been announced.
  4. RUSSIA – The Federal Migration Service of Russia has been reorganized.
  5. TURKEY – The European Commission has proposed visa-free travel for Turkish nationals in the Schengen area.
  6. UNITED KINGDOM – Several developments have been announced.

Also in this Issue:

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REFUGEES AND RELATED BENEFITS: AN OVERVIEW

This article provides an overview of recent developments with respect to refugees and the benefits granted to them.

Canada

In September 2015, a news photograph of a drowned Syrian child sparked a heated debate over refugee rights and Canada’s role to provide refuge. Ever since then, refugee rights have been a recurrent theme in Canada’s media outlets and elsewhere. Below is a brief overview of the benefits granted to refugees (i.e., protected persons or persons who received this status following a favorable pre-removal risk assessment decision) and refugee claimants in Canada with regard to health care coverage and work permits.

Health care coverage. Before June 2012, refugee claimants, even those with pending or failed claims awaiting an appeal, were eligible to be covered under the Interim Federal Health Program, which provided similar health care coverage to what Canadian citizens and permanent residents on social assistance were entitled to (basic health care coverage, prescription drugs, vision care benefits, urgent dental care). Following cuts imposed in 2012 by the Conservative government, coverage became tiered and placed prior eligible persons into four categories, which had the effect of significantly reducing their benefits. On April 1, 2016, following Justice Mactavish’s ruling in the Federal Court that these cuts had a “cruel and unusual” impact on refugee claimants, the Liberal government officially announced that the prior Interim Federal Health Program would be restored to what it was before the changes were introduced. Moreover, it was reported that as of April 2017, additional health care coverage would be available to refugees before their departure for Canada.

Refugees, refugee claimants (determined to be eligible for a hearing), and protected persons now have access to full health care coverage, which includes, for most beneficiaries, coverage for the cost of the Immigration Medical Exam (IME) required under the Immigration and Refugee Protection Act. The Interim Federal Health Program provides resettled refugees with basic coverage until they become eligible for provincial or territorial health insurance as well as supplemental and prescription drug coverage as long as they continue to be assisted by the government. Protected persons have access to basic, supplemental, and prescription drug coverage until they qualify for provincial or territorial health insurance. Refugee claimants have access to the coverage until they become eligible for provincial or territorial health insurance, until they depart from Canada if their claim has been rejected or immediately after their claim is either withdrawn or abandoned or they are re-determined to be ineligible and not able to apply for a pre-removal risk assessment.

Work permits. With respect to work authorization, most refugee claimants are eligible to apply for an open work permit. They must prove that their personal information form (PIF) has been filed and referred to the Refugee Protection Division of the Immigration and Refugee Board (IRB), and they must demonstrate their inability to financially sustain themselves without resorting to welfare. If these conditions are met, refugee claimants must undergo a medical examination before a work permit can be issued. In certain cases, a person with a removal order that the Canada Border Services Agency is not able to immediately enforce may be able to obtain a work permit.

As noted above, not all refugees are eligible to apply for an open work permit. Those from “designated countries of origin” (such as the United States, Mexico, and most European countries) are prohibited from applying for a work permit unless their claim has been accepted or 180 days following the date their claim has been referred to the IRB.

 

Italy

Italy’s refugee policies are set forth in Decree 251/2007 (implementing the European Commission’s directive 2004/83), which establishes a minimum standard for the attribution of the status of refugee, as well as the services they can enjoy (e.g., schooling, employment, healthcare), and Decree 25/2008 (implementing EC’s 2005/85). The decrees identify the basic procedures to assign and end refugee status. Withdrawal can occur when the refugee re-acquires protection from his or her own country, when the fear of persecution ends, or he or she acquires a new nationality in a state that can grant his or her protection.

Asylum and protection seekers must present their requests to either the border police at their time of arrival, or the Police Department if they are already on Italian soil. They must remain within a specific area, as determined by the chief officer. The Territorial Commission reviews the application within 30 days and decides whether to interview the applicant. If there is no interview, this may be because there are sufficient reasons to grant refugee status or because the applicant does not have the prerequisites to be granted refugee status. After the interview, the applicant can be granted either refugee status, subsidiary protection, or a stay permit for humanitarian reasons.

Refugee status can be refused based on the rejection of the application or for lack of grounds (especially if the individual is found to be applying for protection to delay his or her expulsion from Italy.

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CANADA

Many are being caught unprepared by new primary inspection tools.

Beginning in November 2015, the Canada Border Services Agency (CBSA) updated its frontline systems so that CBSA officers working the Primary Inspection Line (PIL) at border crossings now have immediate access to the Canadian Police Information Centre (CPIC) database. Previously, these frontline officers only had access to an immigration-related database, and an individual seeking to enter Canada would need to be referred to secondary inspection for an Officer to run his or her information through CPIC.

In the first month of operation, this procedural change flagged 1,800 cases where travelers were identified as having outstanding warrants against them. The introduction of this change has affected the information available to PIL CBSA officers, and has the potential to affect any foreign national who has ever been arrested, charged, or convicted with a crime inside or outside of Canada.

All foreign nationals seeking to enter Canada who have been subject to an arrest, charge, or conviction in or outside of Canada need to proactively consider if they are inadmissible to Canada and be prepared to address any issues, including disclosing their past history. Of importance is the fact that the CPIC information is not always up-to-date, so even if the matter was resolved without a conviction (i.e., dismissed or finding of not guilty), the onus is on the foreign national to satisfy the CBSA officer that he or she is not inadmissible. Depending on the nature of the charge or conviction, these foreign nationals might find that prior incidents render them inadmissible to Canada. Failure to disclose the information on entry can result in a finding of misrepresentation, and could lead to a five-year ban on entering Canada, or refusals of future immigration applications. Even without the CPIC system, it is imperative that a foreign national disclose any past infractions, from driving while impaired to issues of criminality.

There are ways to overcome inadmissibility based on a past criminal activity. These include a discretionary application known as a Temporary Resident Permit or a finding of “deemed rehabilitation,” which can be executed directly at the port of entry, or a more involved application for rehabilitation that typically needs to be filed at a Canadian embassy or consular office outside Canada before entry.

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ITALY

Several developments have been announced.

Increased filing fees for electronic residence permit card. Under a ministerial decree of March 10, 2016, issued by the Ministry of Economy and Finance, the Italian government has increased filing fees for the electronic residence permit (permesso di soggiorno) in credit-card format (format pursuant to Council Regulations No. 1030/2002 and No. 380/2008). The new fee amounts are:

  • Residence permit card—fee waiver: €30.46 (previously €27.50)
  • Residence permit card valid from three months to one year: €110,46 (previously €107,50)
  • Residence permit card valid from one to two years: €130.46 (previously €127.50)
  • EC residence permit card for long-term residents and intracompany residence permit cards for managers and highly skilled workers (application pursuant to Art. 27a of Italian immigration law): €230.46 (previously €227.50)

Counsel no longer allowed to accompany clients submitting applications at Milan Police Office. The Police Office in Milan no longer allows local counsel to accompany clients while they are submitting applications. Counsel can stay with their clients in the waiting room, but when clerks summon applicants to submit the applications, they cannot be accompanied by any third party. In addition, serious delays have been reported in appointments for fingerprinting. Individuals who have filed applications in May have been summoned for September appointments, for example.

Revocation of EC residence permit for long-term residents—right to maintain an ordinary permit of stay if the individual meets the conditions set forth by law. The Administrative Appeal Council (Consiglio di Stato, April 5, 2016, no. 1327) overturned a decision of the Administrative Court and declared that if an EC permit for a long-term resident is revoked, an expulsion order cannot be issued without taking into account whether the individual has the right to obtain an ordinary permit of stay and therefore is still entitled to remain in Italy on different grounds. An exception is if it is proven that the individual is a danger to national security.

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RUSSIA

The Federal Migration Service of Russia has been reorganized.

On April 5, 2016, Russian President Vladimir Putin signed a Presidential Order reorganizing the Federal Migration Service of Russia. Specifically, it no longer exists as an independent government service and will now become one of the departments of the Internal Affairs Ministry.

Previously, the Federal Migration Service had been a part of the Internal Affairs Ministry. It was detached from the Internal Affairs Ministry and established as a separate government service in 2004.

Over the last few years, Federal Migration Service officials complained that the Service did not belong to the so-called “enforcement agencies” and was therefore not able to conduct investigations, arrest people, and overall engage in operational-search activity. The Service constantly required Internal Affairs assistance in such matters. The “merge” is expected to solve this problem.

President Putin also announced that a third of the Federal Migration Service employees will be dismissed. It remains to be seen whether this will affect the efficiency of the Service.

It should be noted that the change is only organizational and no related legislative changes in the immigration sphere have yet been made.

Kirillova Olga Evgenievna has been appointed as the chief of the Federal Migration Service, replacing Romodanovskiy Konstantin Olegovich.

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TURKEY

The European Commission has proposed visa-free travel for Turkish nationals in the Schengen area.

Under a European Commission proposal for visa-free travel for Turkish citizens in the Schengen area, Turks would have visa-free access to the 26 countries of the Schengen zone. This is reportedly in return for Turkey accepting back an outflow of migrants traveling via the Aegean Sea to Greece.

The proposed change would lift visa requirements by the end of June for Turks traveling for short-stay (three-month) tourism or business trips, but will not include granting Turks the right to get a job in Europe. The change could take effect from July, but first it requires approval by the European Parliament and member states. It will not apply to the United Kingdom or Ireland, which are not part of the Schengen area, so the visa requirement will still apply to Turks traveling to those areas.

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UNITED KINGDOM

Several developments have been announced.

Coming Soon: Immigration Bill 2015

The Immigration Bill is entering the later stages of its passage through Parliament. The bill is currently at the “ping-pong” stage and is likely to receive Royal Assent later in the year. The bill creates a number of new criminal offenses of which both individuals and businesses need to be aware and for which they should plan ahead to ensure that they do not fall afoul of the new law. A summary of some of the key proposed offenses is outlined below.

Illegal Working

There will be a new offense for an employee who works illegally. This offense will apply where a person works when he or she has not been granted leave to enter or remain in the United Kingdom (UK), or the person’s leave to enter or remain in the UK is invalid or has ceased to have effect, or the person is subject to a condition preventing him or her from doing the work. The proposed offense will be punishable by imprisonment for up to a maximum of 51 weeks (currently 6 months), or by a fine, or both. A person convicted of the offense may also have his or her earnings seized. “Working” is given a broad statutory definition that purports to cover an array of working arrangements.

Crucially for businesses, the bill includes an offense of employing an illegal worker. This offense covers a situation where a person employs an employee who is disqualified from employment by reason of the employee’s immigration status and the hirer has reasonable cause to believe that the employee is disqualified from employment by reason of the employee’s immigration status.

This offense has a broader application than its predecessor under § 21 of the Immigration, Asylum and Nationality Act 2006 (currently in force). The bill proposes that this offense could be tried on indictment and a maximum penalty of five years of imprisonment could be imposed. This offense is in addition to the civil penalties under § 15 of the Immigration, Asylum and Nationality Act 2006, under which a company can be fined for employing an illegal worker.

This new offense will mean that businesses in particular will need to be much more diligent about ensuring the correct checks are made when hiring new employees to avoid criminal liability.

Residential Tenancies

The bill creates an offense where a landlord knows or has reasonable grounds to believe that an adult is disqualified from renting as a result of his or her immigration status, yet allows the adult to occupy residential premises. There is also a separate offense where a tenant’s leave to remain in the UK expires during the term of the tenancy, the tenant continues to occupy the property, and the landlord is aware of this or has reasonable cause to believe this has happened but fails to notify the Secretary of State as soon as reasonably practicable.

Similar offenses apply to letting (leasing) agents when they carry out “right to rent” checks on behalf of a landlord and know, or have reasonable cause to believe, that a landlord will be entering into a tenancy agreement with a person disqualified as a result of his or her immigration status and fail to inform the landlord despite having sufficient opportunity to do so.

Driving

There are further powers relating to the provision of driving licenses. These include a power to search premises for a driving license belonging to someone unlawfully in the UK that has been revoked. There is also a criminal offense for failing to surrender a driving license that has been revoked on the grounds of immigration status without reasonable excuse. Finally, there is a proposed new offense of unlawfully driving while in the UK. This proposed offense criminalizes someone who is caught driving while unlawfully in the UK as a result of his or her immigration status.

This package of criminal offenses (which are designed to work alongside additional civil powers) will make it very difficult for people unlawfully in the UK to live a normal life. In addition, the new offenses now place onerous burdens on (often small) businesses to undertake checks on employees and tenants. The best way for businesses and landlords to ensure that they do not fall afoul of the criminal law will be to ensure that the correct checks are undertaken, and that records of the checks are retained. Given that this legislation will be passed shortly, it is time for individuals and businesses to start planning ahead.

 

Changes to Tier 2

Following the publication of the Migration Advisory Committee (MAC)’s report on its review of the Tier 2 visa category in January 2016, the Home Office has announced details of the changes it will introduce for the Tier 2 visa route. Despite fears that the restrictive measures recommended by the MAC would be followed in their entirety, the government has adopted a more cautious approach in some areas and decided not to introduce some of the changes that would have been most damaging to businesses.

The changes will be introduced in two stages, with the first tranche to take effect in autumn 2016 (most likely with the October Rules changes) and the second tranche to be implemented with the April 2017 Rules changes. They are as follows:

Autumn 2016 changes:

  • There will be an increase in the Tier 2 (General) minimum salary threshold to £25,000 for experienced workers, maintaining the minimum threshold of £20,800 for new entrants.
  • There will be exemptions from the increased Tier 2 (General) experienced worker salary threshold for nurses, medical radiographers, paramedics, and secondary school teachers in mathematics, physics, chemistry, computer science, and Mandarin. The exemption will end in July 2019.
  • The salary threshold for the Tier 2 (ICT) Short-Term route will be raised to £30,000.
  • The minimum salary requirement for the Tier 2 ICT (Graduate Trainee) category will be reduced from £24,800 to £23,000, and the number of places available to companies will rise from 5 to 20 per year.
  • The Tier 2 (ICT) Skills Transfer category will be closed to new applications.
  • Extra weighting will be given to overseas graduates in the Tier 2 (General) monthly quota allocation, to make it easier for employers to score the necessary points to secure a restricted Certificate of Sponsorship.
  • Employers will continue to be able to sponsor non-European Economic Area (EEA) graduates of UK universities without first testing the resident labor market and without being subject to the annual limit on Tier 2 (General) places. Graduates will also be able to switch roles once they secure permanent jobs at the end of their training programs, without the sponsors having to undertake resident labor market tests.
  • The Immigration Health Surcharge will be introduced for the Tier 2 (ICT) category.
  • Nurses will remain on the shortage occupation list but employers will need to carry out a resident labor market test before recruiting a non-EEA nurse.

 

April 2017 changes:

  • The Tier 2 (General) minimum salary threshold will be raised to £30,000 for experienced workers.
  • The Tier 2 (ICT) Short-Term category will be closed to new applications.
  • The Immigration Skills Charge (ISC) will be introduced for employers of Tier 2 migrants. This will be £1,000 per migrant per annum (£364 for small businesses and those in the charitable sector). An exemption to the charge will apply to PhD-level jobs and international students switching from Tier 4 to Tier 2 (General).
  • The high-earners’ salary for Long-Term ICTs will be reduced from £155,300 to £120,000.
  • The one-year experience requirement in the Long-Term ICT category will be removed where the applicant is earning over £73,900.
  • There will be a waiver of the resident labor market test and prioritization for Tier 2 (General) places where the visa grant(s) are in support of the relocation of a high-value business to the UK or, potentially, an inward investment project.
  • The MAC’s recommendation of a 24-month period of employment to qualify for Tier 2 (ICT) will not be introduced.
  • Following a review of allowances under the Tier 2 (ICT) categories, there may be some changes to the type and amount of any allowance that can be amalgamated with the base salary, to meet the minimum salary threshold.
  • These measures will be a relief to those employers running graduate recruitment programs, since the government has decided not to introduce any restrictions that would jeopardize these programs. Furthermore, the reduction in the high-earner threshold to £120,000 will remove more migrants from the annual limit on Tier 2 (General) places, leaving more available for those earning lower salaries. In addition, with regard to those Tier 2 (ICT) migrants earning more than £73,900, removing the requirement for 12 months of employment overseas will make it easier for sponsors to transfer these highly skilled migrants from their overseas offices to take up work in the UK at short notice.

 

It is unclear how the 12-month cooling-off period will apply to those Tier 2 (ICT) migrants transferring to the UK for a short period, once the Tier 2 (ICT) Short-Term route is closed in April 2017. Currently, Tier 2 (ICT) Short-Term migrants can return to the UK under the Tier 2 (ICT) Long-Term route without first having to spend 12 months overseas (known as the 12-month cooling-off period). Will migrants needing to come to the UK for short periods continue to be exempt from the cooling-off period if they are coming to the UK for three months or less and will this minimum period be increased if the cooling-off period will continue to apply?

Also, the finer details of how the ISC will apply to sponsors who are also paying an Apprenticeship Levy have yet to be clarified. It is hoped that sponsors will not be subjected to a double charge.

 

Tier 2 Migrants Taking a Sabbatical

The latest version of the Tiers 2 and 5 sponsor guidance is effective as of April 6, 2016. The guidance includes changes to the reporting requirements for Tier 2 migrants who wish to take a period of unpaid leave or sabbatical. The prior position was that if a Tier 2 migrant were to take a sabbatical of 30 days or more over a single period, or over more than one period during any calendar year (January 1 to December 31), then the employer must cease to sponsor the migrant and report this to the Home Office via the Sponsor Management System within 10 days. The new guidance stipulates that sponsorship of the migrant must now cease if the period of unpaid leave or sabbatical is four weeks or more. The four weeks is calculated according to the migrant’s normal working pattern. For example, if the migrant works three days per week, the four weeks would be 12 working days. In effect, this means that Tier 2 migrants must ensure that any unpaid leave or sabbatical taken is under four weeks.

The only exception is if the absence is due to maternity, paternity, shared parental, adoption, or long-term sick leave, in which case sponsorship of the Tier 2 migrant may continue throughout the period of the absence.

 

Delays in Production of Biometric Residence Permits

Some migrant employees have experienced delays in receiving their Biometric Residence Permits (BRPs). This is reportedly due to technical issues affecting BRP production that have led to a backlog. The Home Office expects that the backlog should be cleared shortly. The normal timescale for receiving a BRP is 10 working days from the date of decision.

 

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
Department of State Visa Bulletin: http://travel.state.gov/visa/bulletin/bulletin_1360.html
Visa application wait times for any post: http://travel.state.gov/visa/temp/wait/wait_4638.html

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