In the News at ABIL

Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website.
The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.

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Entertainers and Short-Term Entertainers: An Overview

This article provides an overview of provisions for entertainers and short-term entertainers in Canada and Italy.

Canada

Canada is known as a popular destination for filmmakers and performing artists. Canada’s immigration law permits many entertainers and those working in the entertainment industry to work in Canada without a work permit or to obtain a work permit relatively easily by exempting them from obtaining a Labour Market Impact Assessment (LMIA).

Exemption from Work Permit Section 186 of the Immigration and Refugee Protection Regulations outlines several situations in which a foreign national may work without a work permit. The ones relevant to the entertainment industry are:

• 186(a): Film producers employed by foreign companies for commercial shoots, and essential personnel (e.g., actors, directors, technicians) entering Canada for short durations (typically no longer than two weeks) for a foreign-financed commercial (i.e., advertising) shoot (for television, magazines, or other media).
• 186(g): A performing artist appearing alone or in a group in an artistic performance— other than a performance that is primarily for a film production or a television or radio broadcast—or as a member of the staff of such a performing artist or group who is integral to the artistic performance, if (i) they are part of a foreign production or group, or are a guest artist in a Canadian production or group, performing a timelimited engagement, and (ii) they are not in an employment relationship with the organization or business in Canada that is contracting for their services.
• 186(m): A judge, referee, or similar official at an international cultural or artistic event.

There is also a short-term work permit exemption based on the Global Skills Strategy public policy (15 calendar days once every 6 months or 30 calendar days once every 12 months) available to those working in highly skilled occupations (National Occupational Classification (NOC) Skill Type 0 or Skill Level A). Producers, directors, choreographers, and film editors are considered NOC A occupations.

Exemption from LMIA There are several LMIA exemptions applicable to those in the entertainment industry:

• Exemption code C14 (Significant Benefit—Television and film production workers) targets foreign nationals in the television and film industry whose position or occupation is essential to a TV or film production. Two support letters are required: one from the production detailing the significant economic benefit to Canada of the TV or film production, and the other from the union or guild confirming that the proposed work is subject to a collective agreement and that it has no objection to the proposed work arrangement.
• Exemption code C10 (Significant Benefit—General Guidelines) applies to any foreign national whose employment in Canada would create significant social, cultural, or economic benefit (examples include national or international awards, membership in organizations requiring excellence of its members, and general renown). Applications also must demonstrate that the foreign national’s employment will result in a neutral or positive impact on the Canadian labor market, and that the circumstances justify the issuance of a work permit in a timeframe shorter than that required to obtain an LMIA.
• Exemption code C23 (Reciprocal Employment—Performing Arts) targets key creative personnel and talent associated with Canadian nonprofit performing arts companies and organizations in the orchestral music, opera, live theater, and dance disciplines. The employer must be a current recipient of core or composite funding from the Canada Council for the Arts or of financial support via parliamentary appropriation, such as the National Arts Centre. The application must include evidence from the applicable Canadian performing arts representative or service organization that reciprocal international opportunities exist for Canadians in the discipline. Examples of organizations include the Canadian Actors’ Equity Association, the Canadian Federation of Musicians, and the Canadian Actors’ Equity Association.
• Exemption code C20 (Reciprocal Employment—General Guidelines) permits foreign nationals to obtain a work permit if similar reciprocal opportunities abroad exist for Canadians and if the foreign national’s employment would result in a neutral labor market impact. A Canadian performing arts organization that has a cultural exchange program with a foreign performing arts organization may be able to use this exemption code if it can show that Canadian members are currently participating in the exchange program abroad. Exact reciprocity (one Canadian member abroad for one foreign member in Canada) is not required but the general order of magnitude of exchanges should be reasonably similar on an annual basis.

All LMIA-exempt work permits require the employer to submit an Offer of Employment through the Employer Portal and pay a $230 employer compliance fee. The foreign national must pay a $155 work permit processing fee and, if not a U.S. citizen, an $85 biometrics fee.

Lastly, individuals who do not fit into either of the above categories would require a work permit based on an LMIA. While this would typically require the employer to publicly post the position for at least four weeks, there are certain situations in which the employer would be exempt from the advertising requirement, such as if the position is for a specific occupation in the entertainment sector where a worker is often hired for a very limited number of days, in a specific location, and on very short notice.

There is a $1,000 processing fee for the LMIA, which must be paid by the employer. Once issued, the foreign national must pay a $155 work permit processing fee and, if not a U.S. citizen, an $85 biometrics fee.

Italy

The information below summarizes the process for foreign performing artists, entertainers, and entertainment industry personnel wishing to work in Italy.

Artistic Subordinate Employment

Entry into Italy for the purpose of artistic subordinate employment is not subject to the “immigration quota” (i.e., the number of authorized entries for work reserved to foreign nationals set each year by the government) imposed each year by the Italian government and is regulated by Article 27, c.1 (l, m, n, o) of Italian immigration law. This means that subordinate work permit applications for entertainers can be applied for at any time of the year without being subject to limits. However, non-EU-national performing artists, entertainers, and entertainment industry personnel coming to Italy to perform their activities are not exempt from applying for work authorization and a related visa and permit. The following categories of artistic workers can apply for this type of work permit:

• Circus workers and other traveling performers
• Artistic and technical personnel for lyrical, theatrical, concert, or dance performances
• Dancers, artists, and musicians working in established entertainment venues
• Artistic and technical personnel for music, television, film, radio, and cultural production companies

The guidelines and requirements to apply for work permits for entertainment staff are outlined in Ministry of Labour and Social Policy circular letter n. 34 of December 13, 2006, http://www.anpal.gov.it/Normative/Circolare_MLPS_13_dicembre_2006_n.34.pdf.

The work permit application is filed with a specific office within the Ministry of Labour and Social Policy. The crew/artists/staff/entertainers must be sponsored by an Italian entity/coproducer, even if they remain employees of the foreign company. In this case, the Italian entity/co-producer must be previously appointed by the foreign employer by means of a notarized “contract of agency” (Mandato di rappresentanza). It is vital that the sponsor/host entity in Italy provide evidence of compliance with fiscal and social security obligations. Artists, even if remaining hired above, must comply with the relevant social security obligations in Italy, unless otherwise established by bilateral social security agreements.

The work authorization is issued for an initial period not exceeding 12 months. An extension is possible under specific conditions. Once the work permit is issued and no later than 120 days from the date of issuance, applicants must obtain the relevant visa from the Italian consulate having jurisdiction over their place of residence abroad, then travel to Italy and apply for the residence permit within 8 days of arrival. In the case of artists/staff to be employed for no longer than 3 months, the work permit application can be filed even if the worker is already in Italy.

Steps of the process:

1. Work permit application. This is filed by the Italian company sponsoring the application. The Work Permit must be applied for directly at the Ministry of Labor’s relevant office in Rome.
2. Visa application. Once the work permit is issued, the visa application is filed by the applicant in person at the Italian consulate having jurisdiction over the applicant’s place of residence.
3. Entry into Italy. Within 8 days of arrival visa holders must register with authorities and file the residence permit application. Residence permit (permesso di soggiorno) application is filed at the Post Office which issues (1) postal receipt – official document until the actual residence permit (permesso di soggiorno) card is issued and (2) an appointment for identification & fingerprints at Police office.
4. Residence permit card. After fingerprints, the residence permit (permesso di soggiorno) card is processed; personal attendance is mandatory to collect the residence permit (permesso di soggiorno) card once issued.

Self-Employment

In case of entry for self-employment, a visa can be issued only to internationally well-known and highest-repute artists, artists of recognized high professional qualification, or artists who are hired by well-known Italian theaters, important public institutions, public television or well-known national private television entities (requirements set in Visa Decree May 11, 2011, n.850). This type of visa is subject to the “quota” limits.

Short-term visas (maximum 90 days) for artistic self-employment are issued outside the quota limits.

To be eligible for obtaining a self-employment visa as an internationally well-known and highest-repute artist, the applicant must:

• Be an Internationally well-known and highest-repute artist or be an artist of recognized high professional qualification or be an artist hired by well-known Italian theaters, important public institutions, public television (RAI), or well-known national private television entities
• Have self-employment contract(s) in place with an Italian impresario, company, institution, etc., with a compensation well above the minimum set forth for workers employed in the same sector in Italy
• Not become an employee in Italy but work as a freelancer/self-employed
• Obtain a clearance from the Italian Immigration Police
• Have a suitable accommodation in Italy
• Be covered by private health insurance

Steps of the process:

1. Obtain relevant supporting documents (e.g., self-employment contract, labor authority declaration) and submit them to obtain a police clearance from the relevant police office in Italy
2. Within three months from the date of issuance of supporting documents and the police clearance, file the visa application at the Italian consulate of reference
3. With the work visa, the applicant travels to Italy. Within eight days he or she must apply for a residence permit (permesso di soggiorno)
4. The residence permit (permesso di soggiorno) application is filed at the Post Office, which issues: (1) a postal receipt—an official document until the actual residence permit (permesso di soggiorno) card is issued; and (2) an appointment for identification and fingerprints at the police office. After fingerprints, the residence permit (permesso di soggiorno) card is processed; personal attendance is mandatory to collect this card once issued.

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ABIL Global: Update on Brexit vs. Freedom of Movement (for Workers)

This article provides a summary of highlights of “Brexit” and the outlook for the near future with respect to the free movement of affected workers.

It has now been over two and a half years since the United Kingdom (UK) resolved in a referendum held on June 23, 2016, by a slim majority (51.9% to 48.1%), to leave the European Union (EU). Following submission of the written Withdrawal Declaration to the European Council on March 29, 2017, effective after two years, negotiations on the terms and conditions of the withdrawal were initiated with some delay. An initial breakthrough in the negotiations was achieved about a year ago, and the first draft of the UK-EU Withdrawal Agreement was presented in the spring. The debate nevertheless continued to be highly controversial. Finally, in November 2018, despite all the adversity, a decisive breakthrough was achieved. On November 14, 2018, the EU and the UK reached an agreement on the revised version of the Withdrawal Agreement, which includes a transitional arrangement until December 31, 2020, which may be extended once by mutual agreement for a period that has not been specified.

However, this arrangement can only enter into force once it has been ratified by both the UK and the EU. Unless the Council agrees otherwise with the withdrawing Member State, Article 50, para. 3, TEU, states that European contracts will no longer apply after two years from the date of the formal application, i.e., after March 28, 2019, unless all Member States mutually agree on an extension. This is commonly referred to as “hard BREXIT” or “no deal” and would be accompanied by significant trade barriers between the UK and mainland Europe, with huge economic ramifications.

All of this is reason enough to take a closer look at the effects of the withdrawal from a residency law perspective and to appraise the (probable) future legal situation.

What is the law now and what will it be in the future? “The deal”

With regard to the freedom of movement (for workers), it is first necessary to bear in mind the regulations that will continue to apply until at least March 29, 2019, under the current legal situation and what would (probably) change in the future under the Withdrawal Agreement.

Legal Situation Before the Withdrawal

UK citizens continue to be (even after the Withdrawal Declaration on March 29, 2017) EU citizens or, more precisely, citizens of the Union. Article 17 of the Treaty on the Functioning of the European Union (TFEU) states that any person who is a citizen of a Member State is also a citizen of the Union. This is the situation until two years after the declaration of withdrawal, i.e., until March 28, 2019. At present, this means that the privileges granted to UK citizens with regard to the right to free movement and residence (for workers) continue to apply. This includes the right of workers:

• to apply for jobs offered on the market
• to move unrestrictedly within the territory of the Member States for that purpose
• to reside in a Member State in order to pursue employment there in accordance with the laws, regulations, and administrative provisions applicable to employees in that State
• to remain within the territory of a Member State after having been employed there under conditions laid down by the Commission by means of regulations

However, these privileges with regard to the right to free movement and residence of workers will continue to apply without restriction for a period of two years (subject to a mutually agreed extension of this period) after the UK submitted its declaration of withdrawal.

Anticipated Legal Situation After the Withdrawal

The Withdrawal Agreement includes transition provisions (“Implementation Period”) until December 31, 2020, to mitigate the effects of the withdrawal on Union citizens and British citizens and contains the following detailed regulations:

Free Movement of Workers

EU citizens residing legally, temporarily, or permanently in the UK at the time of the EU withdrawal may continue to live, work (or become unemployed with no fault of their own, selfemployed, study or seek employment within the meaning of Article 7(3) of the Free Movement Directive), or study in the UK. The same applies to British citizens who live in an EU member state.

Persons living temporarily or permanently in the United Kingdom at the time of the withdrawal or the date of the Withdrawal Agreement may also remain in the country. The same applies analogously to British citizens who are legally residing in an EU member state, including persons living with them in non-marital relationships. EU negotiators rejected a request by negotiators from the United Kingdom that a regulation be provided for with regard to British citizens who move to an EU member state after the date of record, stating that they had no mandate to provide for such regulation and that such matters would be provided for in a later agreement.

EU and UK citizens must be legal residents in the host Member State at the end of the transitional period in accordance with EU law on the free movement of persons. However, the Withdrawal Agreement does not require a personal presence in the host country at the end of the transitional period—temporary absences do not affect the right of residence, and longer absences that do not restrict the right of permanent residence are permitted.

According to the Withdrawal Agreement, the above rights will not expire after the transitional period. This means that Union citizens retain their right of residence essentially under the same substantive conditions as under the EU right of free movement, but must apply to the UK authorities for a new UK residence status. After five years of legal residence in the UK, the UK residence status will be upgraded to a permanent status with more rights and enhanced protection.

The same applies to British citizens who continue to legally reside in an EU Member State after a period of five years.

Family Members

EU citizens who are already legal residents in the UK either temporarily or permanently, at the time of the country’s withdrawal from the EU, have a right to family unification, including with family members who do not live with them yet. In addition to spouses (or persons with equivalent status), this also concerns parents and children (including children born after the date of record). The applicable regulations under national law will apply to any other family members.

Social Security

EU citizens who are already living in the United Kingdom at the time of the country’s withdrawal from the EU, as well as British citizens who live in an EU Member State, will retain their entitlements from health and pension insurance plans, as well as other social security benefits, or these entitlements are mutually taken into account.

Administrative Procedures

The United Kingdom promises its resident EU citizens a special residential status that secures their rights and can be applied for easily and at a low cost. EU citizens living permanently or temporarily in the United Kingdom can have their status clarified by the responsible administrative authorities until two years after the date of record. Decisions are to be made exclusively on the basis of the Withdrawal Agreement, without any further discretionary powers. The procedure is proposed to be quick, simple, convenient, and free of charge.

Case Law

Under the Withdrawal Agreement, the European Court of Justice (ECJ) retains jurisdiction for pending cases and questions referred by British courts until the end of the transitional period. EU citizens can only litigate their rights before British courts; these courts, however, will give consideration to the case law of the ECJ for a transitional period of eight years after the expiration of the transitional period, and may also continue to submit questions to the ECJ.

Right to Permanent Residency

The right of EU citizens to permanent residency after they have been in the UK for five years will be retained, with regulations under European law continuing to be authoritative for the eligibility requirements. Time spent in the country before the withdrawal will be taken into account, and periods of temporary absence (of up to six months within a period of 12 months) from the United Kingdom for important reasons will not count toward this period. EU citizens living outside of the UK will only lose their right of permanent residency after a period of five years. Existing permanent residency permits are proposed to be converted free of charge, subject to an identity check, a criminal background and security check, and the assurance and confirmation of ongoing residency.

The State of Play

The road to the possible conclusion and entry into force of the Withdrawal Agreement remained rocky as of January. To make things worse, all of this played out in a political minefield. Once the EU adopted the Withdrawal Agreement, it was the UK’s turn. The Parliament’s decision on the adoption of the Withdrawal Agreement was initially scheduled for December 11, 2018. In the meantime, however, British Prime Minister Theresa May held a crisis meeting and announced that she was postponing the vote until an unspecified later point in time. This was probably because recent surveys indicated that the Withdrawal Agreement would fail to attract a majority. The British Parliament ultimately rejected Prime Minister May’s Brexit deal on January 15, 2019.

The EU reiterated that the bloc would not be available for renegotiations on the Withdrawal Agreement. In the meantime, Ms. May held talks with German Chancellor Angela Merkel in Berlin and with leaders of other EU member states in Amsterdam, Holland, and Brussels, Belgium. So far, these talks were without success. It was more than symbolic that Ms. May was unable to disembark upon arrival in Berlin due to a technical defect that prevented her car’s door from being opened. The times in which a “handbag” moment (this refers to former UK Prime Minister Margaret Thatcher, who “forced” a decision in a brash appearance in Brussels) is enough to persuade the EU to give in seem to be over. There was unanimous consent on the EU side that renegotiations were categorically excluded. The political pressure on Ms. May’s shoulders remains as heavy as it could possibly be despite having survived the vote of no confidence on December 12, 2018.

A further possible way out of this dilemma that has been suggested by the ECJ did not come as a surprise, given the opinion of the Advocate General published recently. In its judgment handed down on December 10, 2018, the ECJ, on the basis of a referral made at the request of Scotland’s highest civil court in the matter of Wightman et al. vs. Secretary of State for Exiting the European Union (C-621/18), ruled that it is possible under certain conditions for the UK to unilaterally revoke the Withdrawal Declaration issued to the EU on March 29, 2017. It would be possible for as long as there is no binding withdrawal agreement and the period of two years stipulated in Article 50(3) TFEU has not expired, for as long as the revocation is made by a unilateral, unequivocal, and unconditional written declaration to the European Council after the concerned Member State has enacted the revocation decision in accordance with its constitutional requirements. Irrespective of this fundamental possibility established in this judgment, it is questionable whether this would happen before March 29, 2019, as the decision to issue such a revocation would also be subject to a majority in the British Parliament and, in all likelihood, could not ever be validly declared without the consent of the majority of Parliament.

Given all of these circumstances, both sides (but more on the UK side than on the EU side) continue to find themselves under massive pressure. Any extension of the two-year negotiation window, which would only be possible by mutual agreement, seems highly unlikely and would always entail the risk of a Member State “throwing a wrench into things” or demanding significant concessions in other areas before agreeing to such an extension. In this context, the possibility of a unilateral revocation of the Withdrawal Declaration could gain significance.

Assessment—”The Complete Mess”

The current situation seems hopeless from the point of view of the UK. The ratification of the Withdrawal Agreement seems such a remote possibility that the British Prime Minister is apparently too afraid of even putting it to a vote. The negotiating partners at the EU are not willing to make any further concessions. The alternative of withdrawing from the EU without a transitional arrangement appears to entail unpredictable economic disadvantages for the UK. On the other hand, the outcome of a second referendum, once again conceivable after the ECJ ruling on the possibility of unilaterally revoking the Withdrawal Declaration, is not as clear-cut as may be suggested in some newspapers. Calling all of this a “complete mess” would probably be a fair assessment.

The history of the EU tells us that the negotiations likely will eventually come to an end with a compromise that is bearable for both sides, even though we cannot predict the details. There might even be a chance that the United Kingdom will in the end remain in the EU. Stay tuned.

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.