Exclusive Q&A on Immigration Law with Karl Waheed


Posted: 2nd August 2017 08:19

What impact has globalisation had on immigration trends?
 
Lawmakers have to deal with the delicate issue of protecting the national labour market from competition from foreign workers desiring to work in France, and French business which is trying to be competitive in a global economy.  The balance between protecting national labour market and make French business competitive in a global market is made differently from one government to another. The current trend is to have a fast and easier work permit process for highly skilled workers, and protect the middle to low skilled workers. 
 
This being said, and for the benefit of our non-EU reader, countries belonging to the European Economic Area and Switzerland make up a common market for labour. Citizens of such countries are free to move and work anywhere within such common market, without being subject to work permits or immigration formalities.
 
Who are the main regulators and what legislations apply to immigration law in your jurisdiction?
 
Work permits are adjudicated by labour authorities who are also in charge of verification of compliance of French labour law by employers. Work permits are regulated by laws and regulations which are promulgated on the French government’s initiative and political line on how to balance national interests in a global economy. 
 
However, the European Commission has taken a lot of initiative in this area, and created European schemes, which France and other Member States have to transpose in to national law.  The Commission’s initiatives are often balanced technical tools, whereas national schemes tend to be politically oriented.
 
The Commission has created EU wide schemes for students, scientists, highly skilled workers, seasonal workers, with minimum sanctions for employers employing illegally staying workers.
 
The latest example is the EU Directive 2016/801 of 11 May 2016. This directive recasts conditions of entry and residence of third country nationals for the purpose of  research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing.  Besides recasting previous directives[1], this directive establishes improved intra EU mobility of third country scientists, their accompany families, and students. The purpose of the directive is to consolidate the previous 2 directives in a single directive, which will improve the harmonization of legislation of member states by setting minimum standards and making the EU more attractive to these strategic populations of third country nationals.
 
French legislation already meets the minimum standards for admitting third country nationals for the purpose of  research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing. However, our legislation will have to be modified to allow for the improved intra EU mobility required by this directive for scientists, their accompanying families and students.
 
 
 
 
Have there been any recent regulatory changes or interesting developments?
The new Law on the Right of Foreigners in France was promulgated 7 March 2016 and published in the Official Gazette on 8 March 2016. Some provisions reshuffle in depth categories and duration of residence permits and the system of work permits on labor migration. This law creates the Talent Passport category for highly skilled workers which provides for a residence permit valid for up to four years. The entry into force of these provisions is postponed to a date to be fixed by decree no later than 1 November 2016. In the absence of implementation decrees there is incertitude on changes to the current immigration processes.
 
Creation of "Talent Passport"
 
A Council of State decree shall set the conditions for issuing the card "talent passport" and determine compensation levels.
The residence "Talent Passport" will be valid until four years and will be issued in the following cases:
- Status change for students with a Master degree
- EU Blue Card status
- Intra-corporate transfer (with local contract in France)
- Scientist status
- Foreign national with Master degree creating a business in France
- Foreign national with an innovative project recognized by a public body
- Foreign national with direct investment in France
- Legal representative (employee or agent)
- Artist
- Foreign national whose international reputation is established (scientific, literary, artistic, intellectual, educational or sports).
 
The law expressly abolishes the need to apply for a work permit for the above categories, most of which are currently subject to work permit adjudication by the labour authorities having jurisdiction over the place of work in France. At this point we do not know how the suppression of the work permit adjudication will change the adjudicating authority and the overall immigration process. The Counsel of State decree to be published before 1 November will determine the adjudicating authority and the process.
 
Family members may be issued a card authorizing the exercise of a professional activity. The duration of the card is based on the duration of the " Talent Passport " card of spouse.
 
Intra-Corporate Transfers (ICT): employees and trainees
This new category is based on the transposition of the European Directive No. 2014/66 / EU of 15 May 2014 into national law. It concerns three possible cases of intra-corporate transfers: posted worker, trainee, mobile worker, and mobile trainee.
 
 
Family members of ICT’s may qualify for a residence permit authorizing the exercise of a professional activity.
 
Suppression of work permits for assignments of less than three months in certain fields
The foreign nationals who come to France in order to take up employment for a period of up to three months in fields determined by decree to come, will no longer be subject to work permits.
 
 
 
 
Can a business send an employee to work in your jurisdiction if there was an urgent business need and how quickly could they start?
 
If the employee ia a Citizens of countries making up the European Economic Area, or a third-country national already having a work permit in a member state, he/she may be sent to France immediately, without being subject to a French work permit.
 
However if the employee is a third-country national employed outside the EEA and Switzerland, then he/she may be subject to a work permit, if the activity in France is not an activity permissible to business visitors.
Certain work permits can be adjudicated in a matter of days, if the adjudicating authority is convinced of the urgent need, and urgent processing will avoid prejudice to the company and other workers. This would be the case of a Japanese technician needed to repair an assembly line machine. The work is stopped because of the broken machine. In such situations the French authorities may even be willing to create a custom made process , if they are convinced that assembly line machine are working under a Japanese license and urgent intervention of Japanese technician may be necessary from time to time.
 
 
 
Can you talk us through the visa application process?
 
Typically the work permit application is filed with the labour authorities (DIRECCTE). Once the work permit is adjudicated, the migration authorities (OFII) are informed. Such authorities pre-approve the long-stay visa with the consular authorities in the applicant’s home country. The applicant enters France and can immediately begin work. Depending on the work permit category, he/she may have to pass a medical examination and register with the Prefecture.
 
What are the different options available to an employee or individual looking to relocate?
See the “Talent Passport” above.
 
Can you outline the current labour market conditions in your jurisdiction?
 
 
Our current unemployment rate is a little over 10%.
 
We have the shortest work week in the world, with 35 hours per week. But the French labour is also one of the most productive in Europe.  Despite our high unemployment rate, we are ironically lacking in highly skilled workers in certain areas eg.(doctors, and IT engineers) and in other areas with middle level (eg. IT technicians, plumbers and welders) and also at low skills level (eg. domestic help).
 
What skill shortages currently exist in your jurisdiction?
See above
 
Are there any immigration implications relating to foreign investors setting up a company in your jurisdiction?
 
The investor will usually want to take an active role in his/her investment and reside in France. The new Talent Passport will provide for immigration authorization for investors and entrepreneurs.
 
Can you outline any penalties or restrictions for non-compliance with immigration regulations?
Third-Country Nationals[2] may not conduct productive work in France, in the absence of a work permit. If they do, they expose their management to penal and administrative sanctions. The Third-Country national may be fined €3,750, prohibited from re-entering France for up to 3 years, and sentenced to jail sentence of up to one year in case of illegal entry on French territory. The management faces multiple penal and administrative sanctions of €15,000 to €100,000 per infraction of illegal work, and a jail sentence of up to 5 years. The corporate entity risks a fine of upto €75,000 and restrictions on business. The user or the beneficiary can be held jointly liable for the non-compliance by the employer of certain obligations[3].Repeated infractions are punished more severely. Furthermore, un-declared work may also result in non compliance of other regulations of the labour and social security codes, which should be studied on a case by case basis.
 
What key trends do you expect to see over the coming year and in an ideal world what would you like to see implemented or changed?
 
The EU Commission has announced that it will propose a directive which will replace the existing directive which has created the EU Blue Card scheme. The Commission considers that the current scheme has not been transposed in national laws in a harmonious manner. The initial objective was to have an EU wide scheme to permit the EU member states to compete with other countries which have been historically more attractive to high skilled immigration, USA, Canada, Australia, and the UK. However the non harmonious application of the scheme is resulting in member states competing with each other, at the best and non application of the scheme, at the worse. A comparison in the variation of national versions of the EU Blue Card scheme can be seen with the following comparison tool:
 
http://ec.europa.eu/immigration/bluecard_en
 
The new proposal of the commission will aim at the following improvements to the EU Blue Card scheme:
 
-Render the salary threshold more flexible
-Limit the use of labour market tests
-Lower the minimum employment period from 12 months to 6 months
- Increase the maximum validity period from4 to 5 years (which then opens rights to permanent settlement)
-lower the skill level
-Make this scheme available to refugees
 
For more details on the Commission’s proposals, see their press release:
 
http://europa.eu/rapid/press-release_IP-16-2041_en.htm

Karl Waheed, member of the New York (1987) and Paris (1993) bars, founded Karl Waheed Avocats,  a twenty-five person law firm dedicated exclusively to corporate immigration. Karl Waheed Avocats was retained in 2006 by the French Ministry of Labour to present a white paper on corporate immigration in France. This report presented a series of recommendations which were incorporated in the currently applicable French regulations on business immigration.
 
Mr. Waheed started his career as an auditor with Deloitte in Florida (1980 to 82).  He obtained his Juris Doctorate at Stetson Law School, Gulfport, Florida (1985) and Diplôme des Etudes Approfondies in European Law at the Sorbonne (1986).  He has been practicing corporate immigration law in Paris since then.

Karl can be contacted on +33 1 43 66 94 27 or by email on cabinet@karlwaheed.fr


[1]Directives 2001/114/CE and 2005/71/CE
[2]               Third-Country Nationals are nationals of countries other than the Member States of the European Union, European Economic Area and Switzerland.
[3]               Adoption of Decree of 30 March 2015, in application of the law of 10 July 2014, and the transposition of the directive 2014/67/UE of the Parliament and Counsel of 15 May 2014.

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