Global Updates – Singapore, Switzerland, and the United Kingdom

05 / 30 / 2018

SINGAPORE – Changes to Foreign Workforce Policy Announced

The Ministry of Manpower has announced upcoming changes to its foreign workforce policy, including an expansion of the Fair Consideration Framework job advertising requirement for Employment Pass (EP) applications to include more companies and more positions, and an increase in the minimum salary requirement for S Pass holders.

Job Advertising

Effective July 1, 2018, for EP applications, jobs must be advertised if both the following conditions are met:

The firm has 10 or more employees (currently if the firm has more than 25 employees); and
The position pays a fixed monthly salary of less than SGD 15,000 (currently less than SGD 12,000).
Therefore, firms with 10 to 25 employees, and positions paying between SGD 12,000 and SGD 15,000, will no longer be exempt from the advertising requirement.

S Pass Salary Criteria

The minimum qualifying salary for S Pass applicants will be increased from SGD 2200 to SGD 2400 in two steps:

From January 1, 2019 from SGD 2200 to SGD 2300
From January 1, 2020 from SGD 2300 to SGD 2400

Candidates with more years of experience are still required to command higher salaries.

Transition Arrangements

Under the first step increase, existing S Pass holders whose passes expire:

Before January 1, 2019: will be allowed to renew based on existing S Pass criteria;
Between January 1, 2019 and June 30, 2019 inclusive: will be allowed to renew based on existing S Pass criteria, for a duration of up to one year; and
July 1, 2019 onwards: Will have to meet the prevailing S Pass criteria for renewal.

Under the second step increase, existing S Pass holders whose passes expire:

Before January 1, 2020: will be allowed to renew based on the 1 January 2019 S Pass criteria;
Between January 1, 2020 and June 30, 2020 (both dates inclusive): will be allowed to renew based on the January 2019 S Pass criteria, for a duration of up to one year; and
July 1, 2020 onwards: will have to meet the prevailing S Pass criteria for renewal.

Action Items

Employers of foreign nationals in Singapore should contact their immigration advisor at McCown & Evans LLP for help planning for these upcoming changes.

SWITZERLAND – Government Extends “Safeguard Clause” Limiting Residence Permits for Bulgarian and Romanian Nationals

The Swiss Federal Council has decided to extend, for the year from June 1, 2018, the quota on Romanian and Bulgarian nationals (EU-2) of 996 long-term B permits, released quarterly.

In addition, maximum numbers for short-term L permits would be reintroduced if the threshold set in the bilateral Agreement on the Free Movement of Persons with the EU were to be reached by May 31, 2018.

The Federal Council is expected to pass the corresponding adjustments to the ordinances at the beginning of May.

Background

For EU nationals, no prior work permit approval is required to work in Switzerland with a Swiss local employment contract, only a simple registration at the local resident’s office of the municipality of residence.

From June 1, 2016, the Swiss government lifted the immigration restrictions on nationals of Bulgaria and Romania, in accordance with the bilateral Agreement on the Free Movement of Persons with the European Union.

According to the Safeguard Clause (Art. 10 Abs. 4c of the Agreement), the Swiss government is, until May 31, 2019, entitled to impose quotas in case immigration from Bulgaria and Romania surpasses by 10% or more the median of the previous three years.

On May 10, 2017, the Swiss Federal Council announced that it would impose a quota, invoking the Safeguard Clause.

Upcoming labor Market Test Requirement

From July 1, 2018, employers wishing to hire foreign nationals in Switzerland, for jobs which have a high unemployment rate, will be required to test the Swiss labor market by advertising the position online for five days, through the Public Employment Service (PES).

Initially, the requirement will only be applied for occupations with an unemployment rate of 8% or above. This threshold will be lowered to 5% from January 1, 2020. As of April 19, 2018, the definitive relevant jobless rates have not yet been published.

Action Items

Companies intending to hire Romanian or Bulgarian nationals in Switzerland should plan to submit permit applications in good time to avoid issues.

UNITED KINGDOM – Tier 2 General Quota Oversubscribed for Five Consecutive Months

The monthly allocation of the Tier 2 General Restricted Certificates of Sponsorship (RCoS) has been exceeded for the fifth consecutive month.

Background

Skilled workers applying to come to the UK under the Tier 2 General route are subject to a monthly quota.

There is an annual limit of 20,700 places which is divided into 12 monthly allocations with a higher number of places available between April and September.

March has the lowest allocation at only 1000 places, compared with 2,200 available in April.

Application Process

To apply as part of a monthly quota, licensed sponsors are required to submit a request for an RCoS. The deadline for requests is the 5th of the month, with decisions being made from the 11th of the same month onwards.

Shortage Occupation and PhD level roles are given priority while the remaining requests are prioritized based on salary.

If a number of requests in a particular salary band exceeds the remaining number of places, all of those requests are refused and the unused quota is added to the following month’s RCoS allocation.

Current Situation

With the exception of July 2015 when the monthly quota was oversubscribed for the first time since the points-based system was introduced in 2008, the allocation process had presented little to no challenge until December 2017 when the quota was exceeded again.

From December 2017, the monthly quota has been oversubscribed every month and only RCoS requests for roles with a salary upwards of £50,000 were granted.

As the months of December – March have fewer places available, it had been hoped that the tendency would end in April 2018 and roles paying below £50,000 would finally overcome the quota hurdle.

Unfortunately, this has not happened and although the official Home Office data is yet to be published, it appears that the minimum salary threshold for this month will be above £50,000.

Action Items

Considering that the monthly allocation is set to reduce over the coming months, employers should prepare for the possibility that those paid lower salaries will not be able to come to the UK under the Tier 2 General route for the foreseeable future.

BREXIT – The State of Play for Citizens’ Rights [UPDATED]

When it comes to Brexit, one of the EU27’s core negotiating principles, as set out in the European Council’s April 2017 negotiating guidelines, is that “nothing is agreed until everything is agreed”. As of now, there is no legally binding withdrawal agreement between the UK government and the EU27, and so any proposals from either side are just that – proposals, subject to further negotiation.

It is also important to note that the UK government will have to conclude separate agreements with (non-EU) EEA countries – Iceland, Liechtenstein, Norway and Switzerland – on the status of their citizens who are resident in the UK.

Here we look at the UK government’s and the EU27’s policy positions on citizens’ rights today, and how they got to this point. We then suggest some actions that those affected should consider taking in light of these negotiating positions.

Timeline of Position Statements

Over the last year, several documents have been issued by both the UK government and the institutions of the EU, addressing the implications of Brexit for EU citizens in the UK and UK citizens in the EU.

June 2017

The UK Government published its proposals on “Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU”, outlining its proposal to offer “settled status” under UK law to EU citizens and their families resident in the UK before the 29 March 2019 (“Brexit Day”).

December 2017

The United Kingdom and European Union published a Joint Report on progress during phase 1 of negotiations under Article 50 of the Treaty on European Union (TEU), including details on the post-Brexit rights of UK and EU citizens for inclusion in the final Withdrawal Agreement.

As of the end of 2017, the UK government had proposed that:

EU citizens who have been continuously resident in the United Kingdom for five years, with or without a permanent residence document, would have to apply for settled status, under UK law, within about two years after Brexit Day, to remain in the United Kingdom;
The “settled status” application would be available from the end of 2018, would not be excessively expensive and would require only an ID document, a photo and a declaration of any criminal convictions;
Those who have already obtained a permanent residence document would not have to pay a fee for “settled status”;
Those who have been resident for less than five years would be able to apply for temporary status, also under UK law, while they accumulate five years residence to qualify for settled status;
EU citizens who are resident in the United Kingdom before Brexit Day could be joined after Brexit Day by certain family members to whom they have been related since before Brexit Day (and by their natural or adopted children born after Brexit Day);
Those with settled or temporary status could continue to access UK benefits at the same level as currently;
The withdrawal agreement would not affect the Common Travel Area between the United Kingdom and Ireland, so that Irish citizens would not be required to apply for settled status, or to register, to move to or remain in the United Kingdom;
UK nationals resident in an EU member state on Brexit Day might need to apply for a residence status (similar to “settled status”) and could be joined by family members after the United Kingdom has left; and
During a transition period, UK immigration rules would prevail, only allowing permanent residence to highly skilled EU citizens, only allowing free movement to those who come with a confirmed job offer and imposing a time limit of two years to EU citizens coming or low-skilled jobs.

February 28, 2018

The EU27 produced a draft Withdrawal Agreement, a translation of December’s Joint Report into legal language, with some new and controversial details on citizens’ rights which are still subject to further negotiation.

The draft agreement proposed that:

EU citizens who have resided in the United Kingdom, and vice versa, for a continuous period of five years under EU law, should have the right to permanent residence under EU law and this will be maintained under the relevant case law of the Court of Justice of the European Union; the United Kingdom; or another host state;
EU citizens resident in the United Kingdom, and vice versa, after Brexit Day can be joined by dependent family members to whom they are related at the time of the family application (rather than on Brexit Day);
All EU citizens arriving in the United Kingdom, and vice versa, during the transition period should have exactly the same rights, under European Law, as those who arrived before Brexit Day, and should therefore be covered by the Withdrawal Agreement, rather than by any separate UK transitional rules; and
UK nationals living in an EU member state on Brexit Day will lose their freedom of movement rights across other EU member states, after the transition period.

The UK government did not publish their own draft agreement but did publish a three-page policy paper on “EU citizens arriving in the UK during the implementation period”, also on February 28, 2018, to respond to the EU27 draft agreement, and updated its guidance for EU citizens in the United Kingdom and UK nationals in the European Union.

In this policy paper, the UK conceded that:

During any transition period, EU citizens and their family members would be able to come to the United Kingdom, and UK nationals move to European Union, on the same basis as they do today;
However, EU citizens arriving in the United Kingdom during this period would have to register with the UK authorities if they intend to stay for over three months; could be joined by family members “on a par with British citizens” (i.e. requiring minimum earnings threshold of £18,600); and would be able to apply for temporary status while they accumulate five years residence to qualify for indefinite leave to remain (rather than “settled status”) in line with non-EEA citizens currently.

March 1, 2018

However, this UK counter-offer was almost immediately rejected by the Brexit Steering Group of the European Parliament, which stated that:

“we cannot accept any form of discrimination between EU citizens who arrive before or after the start of any transition. The full European Union acquis must apply during any transition, including for citizens, and no differentiation can take place. It can certainly not be the case that EU citizens arriving during any transition are forced to accept a lower standard of rights, in particular those relating to family reunion, child benefits and access to judicial redress via the European Court of Justice.”

March 19, 2018

The EU and the UK government released a new draft of the Withdrawal Agreement, including agreed legal text on the implementation period, citizens’ rights, and the financial settlement, as well as a significant number of other articles.

The UK negotiators had now agreed that EU citizens arriving in the United Kingdom during the transition period would have the same rights and guarantees as those who arrived before Brexit Day, thus abandoning the position set out in the 28 February policy paper.

Article 32 of the previous draft, stating that UK nationals living in an EU member state on Brexit Day would lose their freedom of movement rights across other EU member states, after the transition period, had disappeared from this new agreed draft, without any explanation or replacement.

Action Items

EU citizens in the United Kingdom who have already obtained a permanent residence document may or may not have to exchange this for “settled status”, once this application is available, depending on the final terms of the Withdrawal Agreement between the UK and the EU27. These EU citizens do not need to do anything yet.
EU citizens who qualify for permanent residence in the United Kingdom are advised to apply for a permanent residence document. This document may make any future “settled status” application free of charge or may be enough to prove permanent residence post Brexit without a further application and is required for naturalization applications. However, due to a recent increase in applications, this process may take up to six months or longer.
EU citizens, and their family members, may qualify for UK permanent residence if they have been resident in the UK for at least five years continuously (not having spent more than six months outside the UK in any 12-month period of that five-year period) as a student, a worker, self-employed or self-sufficient, or a family member of one of these. The requirement to hold comprehensive sickness insurance (CSI) during this five-year period may apply. Non-EEA national family members will also need to submit proof of their immigration status.
UK nationals resident in an EU member state should consult with their immigration advisor at McCown & Evans to ascertain whether a permanent residence application is necessary or advisable in their situation.