Pro-Link GLOBAL Immigration Dispatch – Estonia, Denmark, South Africa and Thailand

Discover key changes to immigration regulations in Estonia, Denmark, South Africa and Thailand.

Relocate Editorial

7 March 2017

Featured Update

Estonia: Tenth nation to adopt EU Intra-Company Transfer Directive

Effective January 17, Estonia has become the tenth European Union (EU) nation to have implemented the EU Intra-Company Transfer Directive (2014/66/EU). Estonia now joins Spain, Romania, Hungary, Bulgaria, France, the Netherlands, Italy, and Luxembourg in what will be a standardised work permit scheme for senior managers, experts, and trainees engaged in temporary intra-company transfer (ICT) assignments across Europe. Pro-Link GLOBAL has been watching with great interest the progress toward this EU-wide ICT Permit over recent months. For more details, see our white paper “EU ICT Permit: Potential Game Changer for EU Mobility?”.The new Estonian EU ICT Permit is available to foreign nationals from outside the EU, the European Economic Area (EEA), and Switzerland who are temporarily transferred by their company to a related corporate entity in Estonia. The EU ICT Permit applies to applicants meeting the two following conditions:

Non-EU/EEA/Swiss nationals; and
Senior Managers and Specialists employed by the sending company for at least one year, or Trainees with academic degrees employed by the sending company for at least six months.

EU ICT Permits for senior managers and specialists will be issued valid for three years, and EU ICT Permits for trainees will be issued valid for one year. After the initial validity, there will be a one year cooling off period before they will be eligible for another ICT Permit.Ultimately, the greatest benefit of the new EU ICT Permit is the greater intra-EU mobility the holder enjoys. Once the foreign national holds an EU ICT Permit from one of the nations having adopted the ICT Permit Directive, he/she is also able to use that permit for short-term work in other EU nations having adopted the Directive, without applying for an additional work authorization in that country. Likewise, with Estonia having now adopted the ICT Directive, holders of EU ICT Permits issued by other implementing EU nations can now use that permit for temporary work in Estonia.While this benefit is at present limited to those ten nations having adopted the Directive, Pro-Link GLOBAL expects to see significant additions to that list this year. The Czech Republic is already slated to implement the Directive starting in June. Please keep reading future issues of our Immigration Dispatch as we continue to follow and report on these exciting opportunities for multinational corporations operating in Europe. For advice on specific assignments and the applicability of the EU ICT Permit, please reach out to your Pro-Link GLOBAL Immigration Specialist.

Immigration changes from around the world

Denmark: Closer scrutiny of clauses in foreign employment agreements

The Danish Immigration Service (DIS) recently issued new guidance on how it evaluates employment contracts for foreign employees submitted in support of applications for work and residence permits. Under the Danish Act on Statements of Employment Particulars (Act No. 1565 of 15.12.2015), all employment agreements, including those with foreign nationals, must meet certain minimum requirements to be valid. The new DIS guidelines, in effect since January 1, provide those standards that must be met regarding non-compete clauses and non-solicitation clauses contained in employment contracts of foreign employees.Non-Compete Clauses (NCCs) – For those clauses that limit an employee’s ability to engage in subsequent employment in the same industry after leaving the current company, the following criteria apply:

The employment contract must have a valid term of more than six months;
The employee must hold a “unique position of trust” which is expressly justified in writing;
The period during which the employ is barred from other employment in the industry is limited to no more than 12 months beyond the contract termination; and
The company must provide a terminated employee severance pay for the entire period which the employee is barred from other employment in the industry.

Non-Solicitation Clauses (NSCs) – For those clauses that limit an employee’s ability to solicit the current company’s clients and customers after leaving the company, the following criteria apply:

The employment contract must have a valid term of more than six months;
The period during which the employ is barred from soliciting company clients and customers is limited to no more than 12 months beyond the contract termination;
The employee can only be barred from soliciting company clients and customers with whom the employee has had contact in the previous 12 months before the contract termination; and
The company must provide a terminated employee severance pay for the entire period which the employee is barred from soliciting company clients and customers.

Combined Non-Compete and Non-Solicitation Clauses – Where employment agreements contain both non-compete and non-solicitation clauses, all the aforementioned criteria apply; but the clauses may only bar employment and solicitation for six months beyond the contract termination, rather than the above-mentioned 12 months.The Danish labor market is among Europe’s most dynamic, and its laws surrounding employment contracts and conditions is progressive and well-developed. For foreign employees in Denmark, companies should take special note of the dual obligations to comply with both Danish immigration laws and labor laws. With this new DIS guidance and obvious increased scrutiny of foreign employment contracts, Pro-Link GLOBAL advises companies to take this opportunity to review their employment agreements to ensure that all provisions fully comply with Danish law, so as not to delay or prevent employment of needed foreign talent.

South Africa: Recent anti-immigration protests leading to increased workplace inspections

To those regular readers of our alerts, it will come as no surprise that immigration has been a hot topic in South Africa as of late, and there is much movement toward reform on the part of authorities. For more details on the current international business climate and recent changes in corporate mobility in South Africa, see our extensive recent Global Brief and last week’s Immigration Dispatch. Undoubtedly, South Africa’s corporate immigration system is in a state of flux, and will likely remain so for the coming months. This week’s “heads-up” for companies employing foreign nationals in South Africa is a caution to watch for significantly more-frequent unannounced workplace inspections.Recent statements by Department of Home Affairs (DHA) Minister Malusi Gigaba indicate a significantly heightened enforcement of current immigration laws for companies employing foreign nationals. In a strong admonition of companies employing undocumented foreign workers, Minister Gigaba warned, “Companies, businesses: Be warned. We are coming for you.” He then went on to note that, while in the past enforcement has focused primarily on the foreign nationals themselves, authorities will now increasingly direct their enforcement actions at the companies employing them, citing a recent action against a large supermarket group where three managers were criminally charged in conjunction with employing undocumented or insufficiently documented foreign nationals.The increased enforcement actions are an obvious response to a recent upsurge in anti-immigrant protests and violence against foreign nationals in South Africa. With the current highly-charged atmosphere surrounding the issue of immigration in the country, companies would be wise redouble efforts to ensure that all foreign employees have proper work and residence authorizations, and that all documentation is available at each worksite in the event of an inspection. In addition to increased document checks, companies should also expect strict enforcement of immigration regulations at all stages of the process, including compliance with the applicable foreign-to-local worker ratio.As Pro-Link GLOBAL has reported previously, the South African government is currently considering significant immigration reform based on last year’s Green Paper on International Migration in South Africa. Statements in the last two weeks by Minister Gigaba and DHA Director General Mkuseli Apleni indicate that we will likely see the beginning of Cabinet action on immigration reform by the end of this month. Pro-Link GLOBAL is continuing to monitor the rapidly shifting environment surrounding corporate immigration in South Africa; please watch our future alerts for frequent updates over the coming weeks.

Thailand: Heightened scrutiny of visa extension applications

While there has been no official announcement of a formal policy change, Pro-Link GLOBAL has observed in recent weeks a noticeable up-tick in additional document requests and heightened scrutiny of applications for visa extensions in Thailand. The trend appears to be limited to applications filed through the “standard” process, whereas applications submitted through the One Stop Service Center (OSSC) appear unaffected. The additional documents that are now often being requested, or customary documents that are receiving higher scrutiny, include:

Updated applicant photographs;
Various documents officially certified by other Thai government agencies; and
Signed copies of company directors’ passports, visas, and work permits where that director is signing renewal applications for their employees.

Thailand has made a number of recent minor changes to its corporate immigration processes of which companies should be aware. For more details, see our Immigration Dispatches of February 20, February 5, September 26. While the present increased scrutiny and requests for additional documents do not present major obstacles, companies and their foreign employees in Thailand using the standard process for renewing work and residence visas should bear this mind and reach out to their Pro-Link GLOBAL Immigration Specialist well ahead of any anticipated renewals so that they may anticipate potential last minute document requirements and avoid any delays._{Caveat Lector | Warning to Reader}_{This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change at a moment's notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Pro-Link GLOBAL's Counsel and Knowledge Management teams. We worked with our PLG | KGNM Estonia Office “Partners in Relocation BV”, our PLG | KGNM Denmark Office “Copenhagen Relocations APS”, our PLG | KGNM South Africa Office “IBN Consulting (Pty) Ltd.”, and our PLG | KGNM Thailand Offices “[Asian Tigers Mobility” and “Blumenthal Richter & Sumet Ltd.” to provide you this update.}

_{Information contained in this Global Immigration Dispatch is prepared using information obtained from various media outlets, government publications and our KGNM immigration professionals. Written permission from the copyright owner and any other rights holders must be obtained for any reuse of any content posted or published by Pro-Link GLOBAL that extends beyond fair use or other statutory exemptions. Furthermore, responsibility for the determination of the copyright status and securing permission rests with those persons wishing to reuse the materials. Interested parties are welcome to contact the Knowledge Management Department (km@pro-linkglobal.com) with any additional requests for information or to request reproduction of this material.}