GERMANY: FAQ ON FOREIGNERS LAW

Any questions with regard to German immigration laws? Check the following website of the Federal Ministry of the Interior as a starting point:

http://www.bmi.bund.de/cln_028/nn_148248/Internet/Navigation/EN/Topics/ForeignersAndAsylum/FAQ/FAQ__node.html__nnn=true
Any further questions ... just contact me (maevers@mkrg.com) and I will be happy to assist further.

THIS IS THE FIRST TIME IN THE HISTORY OF SPAIN THAT WOMEN OUTNUMBER MEN IN THE NEW CABINET

Marla Bojorge

Bojorge & Associates

marla@icav.es

The new Spanish Cabinet is formed by nine women and eight men . Moreoever, this is the first time that the Minister of Defence is a Woman.

The New Cabinet is formed by Two Vice Presidents and Fifteen Ministers .There are two new Ministries –namely, Science and Innovation and Equality- and there are three Ministries that change names – namely, Education, Social Policies and Sports; Work and Immigration and Environment, Rural and Seaside Areas.

Maria Teresa Fernandez de la Vega and Pedro Solbes remain First and Second Vice Presidents, respectively.

Miguel Angel Moratinos, Mariano Fernandez Bermejo, Alfredo Perez Rubalcaba, Magdalena
Alvarez, Elena Salgado, Cesar Antonio Molina and Bernat Soria also remain in their respective
Ministries.

Carme Chacon becomes Minister of Defence, Elena Espinosa becomes Minister of Environment
and Mercedes Cabrera becomes Minister of Social Policies.

There are five new Ministers: Celestino Corbacho, Miguel Sebastian, Beatriz Corredor, Cristina Garmendia and Bibiana Aido.

RECENTLY, MARLA BOJORGE GOT HER DEGREE AT LAW IN CHINA

Marla Bojorge

Bojorge & Associates

marla@icav.es

The First Attorney-at-Law from Spain who gets her Degree at Law in China under Agreement .

CHINA ALTERS ITS IMMIGRATION REGULATIONS IN RESPONSE TO OLYMPIC SECURITY CONCERNS

Andrew Lillis
Lehman, Lee & Xu
andrew@lehmanlaw.com

The past four weeks have seen significant changes in the regulations relating to the issuance of visas for foreigners wishing to visit China. Between now and October stricter requirements are now in place for the issuance of both tourist and business visas. The changes have made due to security concerns surrounding the Olympic Games.

Hong Kong has traditionally been the gateway to China and in this respect the Special Administrative Region is the favoured location for foreigners obtaining visas for entry into Mainland China. The regulations relating to the issuance of visas in Hong Kong have traditionally been rather lax; until several weeks ago it was possible for most nationalities to obtain a six-month multiple entry business visa by providing nothing more than a passport and the visa fee.

All of this changed on March 27th when China ceased the issuance of multiple entry business visas. Long the lifeblood of foreign businessmen whose work necessitates frequent trips to China, the decision was met with frustration by many. Particularly affected were those foreigners who live in Hong Kong and frequently travel to Mainland China. Those visas already issued continue to be valid though those applying to renew their visas will only be issued with a double entry visa.

The next development came on April 8th when China stopped issuing five-day Shenzhen Special Economic Zone visas at the border points between Mainland China and Hong Kong. These visas had been available for many years and were popular with foreigners in Hong Kong either shopping or doing business in the Shenzhen Special Economic Zone

On April 10th news began to filter in of stricter requirements for the issuance of tourist visas. In the past a tourist visa could generally be obtained without providing hotel reservations and flight bookings. The new regulations state that these are now mandatory and some embassy websites show an increase in visa processing fees, a reduction in the validity period of the visa, an increase in processing times and a specific time frame during which the visa must be applied for (1 to 2 months before the applicant’s departure for China according to the website of the Chinese embassy in the Netherlands).

The next development came on April 13th came with an announcement on the website of Hong Kong’s China Visa Office.

Visa applicants are increasing in a large number and need longer waiting time in the visa office recently. If you don’t reside in Hong Kong permanently, you are required to apply China visa from the Embassy or Consulate in your resident country.

This is significant because as of March 28th this visa office is the only place in Hong Kong where visas for mainland China can be issued. This means that visitors can no longer apply for Chinese visas in Hong Kong; only those working or residing permanently there are eligible. This is a major policy change compared to the prior system where Hong Kong was the favored destination for “visa runs” – a term expatriates living in China use for a quick trip to Hong Kong to obtain a new Chinese visa.

The latest development was announced on several Chinese embassies’ websites on April 14th that an original letter from a Chinese state organ confirming the bona fide nature of the applicant’s business must now accompany all business ”F” visa applications. Currently this is appearing on websites belonging to the Chinese embassies in Singapore, South Africa, Australia and the United States though it can be assumed that the policy is being applied to all countries.

This demonstrates a major departure from the prior situation where a letter from the businessperson’s employer would suffice when applying for an “F” visa in an overseas consulate or embassy.

The situation for foreigners already in China has also changed. Until very recently it was possible to extend a “L” tourist visa or “F” business visa within China for periods of up to six months provided the appropriate fee was paid. Currently though it is impossible to extend any “F” or “L” visa in China past July 1st meaning that those foreigners with visas expiring over the next few months must return to their home jurisdiction in order to obtain a new visa before returning to China. A significant number of those affected are English language teachers; officially schools must provide a “Z” visa and residence permit for their foreign teachers however many schools are not licensed to employ foreigners and prefer for teachers to enter China on an “F” business visa. Employing teachers on “F” visas is illegal but the practice has long been tolerated. The resulting change of rules will lead to an exodus of teachers residing in China on “F” visas.
There has also been talk that China will cease issuing student visas covering the months of July and August – foreign students studying here full time are generally on “X” visas which will run until the end of June. The next semester, barring Summer school, will begin in September so students will generally be required to leave China for the Summer.

The effect of these visa changes is that between now and July there will be a sizable decline in the number of foreigners living in China – with those on “F” and most of those on “X” visas leaving all that will remain will be those who are able to meet the new requirements for the issuance of F visas and those on official work permits who will not be affected by the changes.
The new regulations have caused consternation amongst many, particularly in Hong Kong where many foreigners with business dealings in China live. Those with businesses in the Pearl River Delta (the industrial cities of the Mainland adjacent to Hong Kong) are particularly affected – visas are now only issued as either single or double entry so a foreign businessperson residing in Hong Kong who travels to the mainland several times a week and whose prior multiple entry visa has expired or is expiring in the near future must now apply for new visas as frequently as every few days and, considering the increase in visa issuance times, may find it difficult to sustain their business dealings in the months ahead.

It should be noted, in conclusion, that China’s visa regulations are still relatively lax compared to many countries and a vast majority of those with genuine business in China will still be able to obtain visas as usual providing they obtain the necessary paperwork, as will tourists visiting for the Olympics. According to the Chinese authorities the restrictions are only due to last until October after which time we can expect to see the regulations being relaxed once again.

HONG KONG’S QUALITY MIGRANT ADMISSION SCHEME ALTERS POINTS ALLOCATION TO ENCOURAGE YOUNGER MIGRANTS

Andrew Lillis,
Lehman, Lee & Xu
andrew@lehmanlaw.com

Hong Kong, a Special Administrative Region of the People’s Republic of China, has long been a city where East meets West. Handed back to the People’s Republic of China in 1997, the city has continued to prosper and maintain its status as a leading global financial hub. The city ranks alongside developed western nations in income and quality of life surveys and has a favorable income tax regime . Hong Kong relies on the talent of its people to maintain its economic success and in this regard has recently introduced a scheme to attract talented migrants. The Quality Migrant Admission Scheme as it is known was set up in 2006 with the goal of attracting highly skilled individuals and their families to come to Hong Kong.

Under the scheme candidates do not need a job offer before they apply. Points are awarded based on their age, educational qualifications, years of work experience, fluency in languages and family background. The maximum number of points available is 165 and the “pass” rate is currently set at 80.

Initially the scheme was rather stringent in its point allocation; the profile of the preferred migrant was a bilingual (English and Chinese) speaker in the 30 – 34 age bracket with at least 5 years of work experience.

In the months following its launch the scheme attracted little interest and applicant numbers were low. In response to this the requirements were adjusted earlier this year to enable younger migrants with less work experience to qualify – now anyone aged 18 – 39 receives the maximum number of points under the age bracket. The amount of work experience qualifying for points was reduced from 5 years to 2 years and those who speak only Chinese or English are now awarded points with extra points being available to those speaking foreign languages. According to Helen Chan, assistant director of immigration, the changes were made in order to attract younger migrants to Hong Kong.

Once a candidate meets the points bar they can lodge an official application. All candidates are screened and ranked according to several factors such as the skills presently needed in Hong Kong. Those who are ranked highly are shortlisted and invited to Hong Kong to be interviewed after which successful candidates are approved to migrate to Hong Kong. Each application is viewed on its merits and a high points score does not necessarily lead to approval. The annual quota under the scheme is 1000 with the success rate of those short-listed falling around the 70% mark.

Migrants under the scheme may also elect to be assessed under a separate achievement based points scale. This scale is for exceptional individuals who have distinguished themselves in their respective fields. Examples of those who have migrated under this category are the pianist Lang Lang, famous actress Zhang Ziyi and the NHL hockey player Barry Beck.

Information on the Quality Migrants Admission Scheme can be found at http://www.immd.gov.hk/ehtml/QMAS.htm

HSMP JUDICIAL REVIEW – FAITH IN BRITISH JUSTICE RESTORED

Graeme Kirk
Gross & Co.
gdk@gross.co.uk

The High Court has delivered a major judgement against the British Government in relation to the changes to the UK Highly Skilled Migrant Programme.

The HSMP Scheme was introduced several years ago to encourage highly skilled migrants to take up residence in the United Kingdom. Among the requirements was that an individual applicant had to make his main home in the UK and, as a result of this, many successful applicants sold their homes and assets in their own countries to come to the UK.

In December 2006, the British Government changed the HSMP Rules in a number of different ways, some of which made it impossible for some existing HSMP holders to qualify under the new Rules. Most surprisingly, the new HSMP Rules applied not only to new applicants but retrospectively to existing HSMP holders. As a result of this decision which was vociferously opposed from many quarters, many existing HSMP applicants were refused extensions of stay, and a number had to return home.

Judicial Review proceedings were brought by a group of affected HSMP holders who formed a group called HSMP Forum. Despite a number of unfavourable decisions in Appeal hearings before the Asylum & Immigration Tribunal, the High Court has declared that the retrospective element of the HSMP changes were illegal, and indeed an abuse of power. This means that existing HSMP holders will be allowed to remain on the basis of the old Rules, and those who have already left the country may be able to return, or possibly claim compensation.

This is a major defeat for the Government, but the Government has confirmed that it will not appeal the decision.

It is to be hoped that, in future, the British Government will take note of the many distinguished people who advised them that this approach to retrospective legislation was disgraceful and this will not happen again in the future.

Further information can be obtained from Graeme Kirk on gdk@gross.co.uk.

AN EMPLOYERS GUIDE TO SWITZERLAND

Caterina Naegeli
Buergi Naegeli Rechtsanwaelte
cnaegeli@bnlawyers.ch


Switzerland has a dual system for granting foreign nationals access to the Swiss labour market. Persons from the EU or EFTA member states, regardless of their qualifications, are granted easy access, employers who want to engage persons from third states have to face a few obstacles. Due to the number of enquiries received we want to share a short summary of the requirements with you.


The immigration of employees from countries outside the EG/EFTA depends on various conditions. When an inter-company or company-internal transfer is not possible, the employees have to apply for a normal work permit. The following information applies to all sectors whether for certain sectors the requirements are regulated in more detail.

Business visitors in Switzerland will receive that permit, if:

- this is of general economical interest
- and an employer applies for the employee

Furthermore the following conditions must be fulfilled:

- The federal council limits the number of permits with work purpose. As long as the contingent is not exhausted permits can be given
- The local salary and working conditions must be guaranteed
- It must be proved that neither Swiss citizen, nor persons already domiciled in Switzerland or a holder of a permit or a member of an EG/EFTA state could have been employed. To do so there must be a public offer for the job.
- Only managers, specialists, or other qualified persons can be admitted. The professional and social adaptability, language, and age have to allow for a lasting integration in the market and the social surroundings
- A suitable accommodation must be available.
- Also criteria for a good integration (age, language ability…) will be considered by the immigration office

To summarize: the most important thing would be to explain why the employees have special knowledge, languages which are absolutely necessary for the business connections or other requirements which cannot be fulfilled by any of the above mentioned persons. Normally it should be able to show that the prerequisites to get such a permit are given for people having an academic background or being specialists, but this depends very much on what exactly the employee in question will be doing and which qualifications the employee has.

Exceptions from the admittance requirements may be made in certain cases. Examples are:

- Cooperations agreements / projects
- Practical training and further education¨
- Transfer of cader or specialists
- Employment following conclusion of a person’s studies
- Special case of general interest