The Corporate Immigration Review: Preface
Last year, as the 10th edition of The Corporate Immigration Review was being finalised for print, and the Preface was being drafted (late as usual), the world had just been hurled into a health crisis of a kind that few immigration practitioners could have imagined, let alone experienced. We wrote then about the extraordinary impact the crisis was having on the global economy. Putting to one side the niche interests of the readers of this publication about global mobility and cross-border travel, we reflected:
Hopefully by the time this edition hits your desks the storm will have passed and the business world will be in “bounce-back” territory, people will be moving around the world again for pleasure, business and economic development, the horrors of the first half of the year will have been replaced by optimism and relief. We hope so.
Sadly, one year later, most of the world is still in lockdown and nation states continue to grapple with the challenges of a virus that has taken nearly 3 million lives globally (as at April 2021). The measures that governments have been forced to impose to prevent transmission have had a devastating effect on economies and the world has experienced a sudden recession of a kind not seen in peacetime. The development and distribution of vaccines may represent a roadmap out of the crisis, but the world has a long way to go before normality returns.
In this context, immigration law developments have mostly consisted of exceptional and unprecedented measures designed to control the transmission of the virus. In ordinary times, the imposition of travel bans from the European Union to the United States would be unthinkable. Constraints on the freedom of movement of EU citizens between Member States (a pillar of the single market) would be impossible for EU leaders to contemplate. And yet, the past year has witnessed both of these hitherto unimaginable developments.
For immigration practitioners the challenges of the past year have been myriad, first in relation to managing law practices within the context of a sudden shift to home working and, more importantly, in helping clients deal with the complexities of a world in administrative lockdown. Normal business and work patterns were altered immeasurably over the space of a few days in March 2020, and proved the biggest challenges for all of us related to the administration of the global immigration system, with consulates closed, flight schedules abandoned and whole countries placed in administrative lockdown. Cases that in the past may have been straightforward and transactional became very difficult to manage from a logistics perspective. It has been a year of crisis management rather than strategic development.
It is difficult to gauge the extent to which the coronavirus pandemic will have a long-term impact on global mobility programmes and the corporate culture of international assignments. The pandemic is unlikely to reverse the globalisation that has developed over the course of the past 20 years or more. Workers and entrepreneurs will still want to travel to, learn from and gain experience of other cultures and develop their business interests overseas. It is not possible to replicate an assignment experience on Zoom or Teams. Moreover, we cannot simply unpick the international web of businesses under common ownership that are such a feature of modern commerce. Global mobility will return, eventually, but with a modern template reflecting the flexibilities and alternative work patterns that have evolved at pace as a result of the crisis. 2020 saw a revolution in work practices, by necessity rather than design, that cannot now be reversed. However, it will always be within the spirit of human endeavour, especially within the context of business, to travel and engage in person on the ground in investment destinations.
Of course, the covid pandemic has not been the only event that practitioners have had to navigate this year. The UK, for example, finally reached the end of its long Brexit drama. A new settlement for the movement of people across UK–EU borders came into force on 1 January 2021.
Companies across Europe had to prepare for major regulatory and compliance changes at the same time as dealing with the effect of the pandemic. Most corporates are familiar with the challenges of compliance risk and employer sponsorship, but many were not ready for the scale of engagement that the new legal order imposes. The resident labour market, and the available pool of settled workers in the UK, shrank significantly at the beginning of 2021. This poses challenges for recruiters, human resources managers and global mobility specialists. We are all used to legal right to work (LRTW) checking requirements but not necessarily sponsor management recordkeeping and reporting on such a large scale. Bringing a block the size of the EU within the ambit of a new LRTW order represents a seismic change.
The new skilled worker route brings a lot of positives for business. Even though the underpinning narrative of Brexit was about 'taking back control' and reducing migration numbers from outside the new resident labour market (limited to the common travel area of the UK, Ireland and the surrounding islands), the scheme is in fact very liberal. The skills threshold (RQF3) is lower and the salary threshold is flexible given the ability to 'trade' points with other eligibility criteria. The fact that there are no caps or quotas of restricted certificates of sponsorship is a bonus. The policy is a major shift away from the approach of the May years. The ironic consequence of the policy may be a significant increase in the UK's annual net migration figures despite the political rhetoric that has existed over the past decade.
One trend that has accelerated as a result of the exceptional events of 2020 is that of remote working. The evolution of employment policy in respect of flexible working practices has moved at pace. Some governments have been agile in response, altering domestic immigration laws to reflect these developments. Estonia was the first EU country to announce an initiative in this area called the digital nomad visa. This visa allows remote workers to live and work in Estonia for up to a year. Recipients are permitted to live in the country and legally work for their employer or their own company registered abroad. Remote workers have long faced ambiguity when they travel, often crossing the line between legitimate visitor activities and acts that require work authorisation or a residence permit, or both. The Estonian scheme breaks the mould in terms of the traditional approach of governments to international workers, which has until now required an economic link to the host country. Eligibility requirements include the ability to work independently of location and to perform duties remotely using telecommunications technology. The applicant must have an active employment contract with a company registered outside of Estonia, conduct business through his or her own company registered abroad, or work as a freelancer for clients mostly outside of Estonia.
The United Arab Emirates (UAE) has recently initiated an emirates-wide remote working programme in a bid to attract the growing pool of digital nomads. The visa is being marketed as an opportunity for remote workers to take advantage of the country's low taxes – the UAE does not impose income tax on residents. The quality of life, standard of hospitality on offer and all-year summer weather combine to make the country a desirable destination for flexible workers, particularly those without family commitments that might impede a move abroad.
As ever, there is a great deal for our contributors to write about this year. We are again very grateful to our colleagues for their brilliant submissions to this year's text.
Magrath Sheldrick LLP