Immigration Law Jurisdictional comparisons First edition 2013 General Editor: Laura Devine, Laura Devine Solicitors & Laura Devine Attorneys LLC General Editor Laura Devine, Laura Devine Solicitors & Laura Devine Attorneys LLC Commercial Director Katie Burrington Commissioning Editor Emily Kyriacou Senior Editor Lisa Naylor Editorial Assistant Magda Wika Design and Production Dawn McGovern Published in September 2013 by The European Lawyer Reference Series, 100 Avenue Road, London NW3 3PF part of Thomson Reuters (Professional) UK Limited (Registered in England & Wales, Company No 1679046. Registered Office and address for service: Aldgate House, 33 Aldgate High Street, London EC3N 1DL) A CIP catalogue record for this book is available from the British Library. ISBN: 978-0414031258 Thomson Reuters and the Thomson Reuters logo are trade marks of Thomson Reuters. Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. 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Full acknowledgement of author, publisher and source must be given. © 2013 Thomson Reuters (Professional) UK Limited Immigration Law Contact details Foreword Laura Devine, Laura Devine Solicitors & Laura Devine Attorneys LLC ii Australia Megan Arends & Rozanne Topham Minter Ellison 1 Austria Wolfgang Hahnkamper & Gernot Fiebiger Neudorfer Rechtsanwälte 23 Canada Jacqueline Bart Jacqueline Bart & Associates 41 China Laura Danielson & Zhu ‘June’ Cheng Fredrikson & Byron P.A. 63 France Valérie Maricot & Stéphane Coulaux CMG Avocats 79 Germany Dr Gunther Mävers Mütze Korsch Rechtsanwaltsgesellschaft mbH 89 Hong Kong Eugene Chow Chow King & Associates 103 India Poorvi Chothani, Esq LawQuest Advocates 123 Italy Marco Mazzeschi Mazzeschi 135 Mexico Enrique J. Arellano Enrique Arellano Rincón Abogados, S.C. 149 Monaco William Easun Tempest Legal Services Monaco 157 The Netherlands Jelle Kroes Kroes Advocaten Immigration Lawyers 171 New Zealand David Ryken Ryken and Associates 189 Singapore LEON Kwong Wing KhattarWong LLP 199 Spain Antonio E. Arenas López Fernando Scornik Gerstein LLP 213 Switzerland Urs Haegi Vischer AG 231 Turkey Maria Çelebi & Batuhan Sahmay Bener Law Office 245 UK Laura Devine Laura Devine Solicitors & Laura Devine Attorneys LLC 255 USA Anastasia Tonello & Murty Gollakota Laura Devine Attorneys LLC 275 Contact details 295 EUROPEAN LAWYER REFERENCE SERIES i Immigration Law Foreword Laura Devine Laura Devine Solicitors & Laura Devine Attorneys LLC Immigration is a complex, dynamic, and increasingly critical aspect of global business in the 21st century. With multinational organisations regularly transferring employees across borders, and more individuals seeking to invest and start businesses abroad, it is vitally important to understand what avenues and barriers exist in order to facilitate timely and eficient migration where possible. In addition to the intricate mosaic of technical and logistical issues that comprise business immigration, there are, too, nuanced economic, political, and social factors that inluence legislation. Unlike many other areas of law, immigration policy requires governments to look both inward – taking into account domestic concerns and aspirations, as well as outward – considering how they wish to be perceived, and received, by other nations. Moreover, countries must attempt to simultaneously anticipate future labour needs, whilst remaining mindful of historical trends and precedent. With the ebb and low of political policy often pursuing electoral tides, individuals and businesses can be left adrift in a sea of changing rules and shifting social currents. As a consequence, navigating these unpredictable, often bewildering waters is challenging at the best of times. Bearing this in mind, Immigration Law, Jurisdictional Comparisons provides succinct, accessible overviews for each jurisdiction’s immigration system, whilst focusing on work-related routes. This irst edition covers 19 different countries, namely Australia, Austria, Canada, China, France, Germany, Hong Kong, India, Italy, Mexico, Monaco, the Netherlands, New Zealand, Singapore, Spain, Switzerland, Turkey, the United Kingdom, and the United States of America. Although jurisdictions differ dramatically from one another, it has been attempted to arrange this book in a logical format. By structuring the entries in a common framework, readers should be able to locate information and quickly make cross-jurisdictional comparisons. Chapters cover a broad spectrum of information in order to provide a coherent snapshot of each jurisdiction, ranging from relevant governmental entities, sources of law, and routes available to primary applicants and their dependants, to conlicts of law, settlement, and citizenship. Additionally, each chapter provides useful lists of jurisdiction-speciic resources, such as governmental and non-governmental agencies, departments, organisations, and websites. As these are printed texts, remaining up-to-date is an inevitable challenge. For this reason, we have included a forward-looking section toward the end of each chapter detailing the present climate and anticipated future legislation. Whilst we would always advise consulting a qualiied legal specialist, these sections should arm readers with the knowledge to intelligently approach EUROPEAN LAWYER REFERENCE SERIES iii Immigration Law potential issues and anticipate relevant questions to ask. I would like to thank all of the contributing authors for their time and effort in making this an outstanding and comprehensive book. These include: Megan Arends, Rozanne Topham, Wolfgang Hahnkamper, Gernot Fiebiger, Jacqueline Bart, Laura Danielson, Zhu ‘June’ Cheng, Valérie Maricot, Stéphane Coulaux, Gunther Mävers, Eugene Chow, Poorvi Chothani, Marco Mazzeschi, Enrique Arellano, William Easun, Jelle Kroes, David Ryken, Leon Kwong Wing, Antonio López, Urs Haegi, Maria Çelebi, Batuhan Sahmay, Anastasia Tonello and Murty Gollakota. Additionally, I would like to extend my gratitude to Katie Burrington, Emily Kyriacou, Dawn McGovern, Lisa Naylor and Magda Wika and the entire team at the European Lawyer Reference Series, whose hard work and patience ensured that this book was both timely and well done. Finally, I would like to thank Louise Woodhouse, my PA and Matthew Meyer, a consultant both who have greatly assisted me in editing this book. Laura Devine London 2013 iv EUROPEAN LAWYER REFERENCE SERIES Italy Italy Marco Mazzeschi Mazzeschi 1. RELEVANT GOVERNMENTAL ENTITIES Immigration legislation is governed at national level by the Ministry of Internal Affairs and by the Ministry of Labour. The Ministry issues ‘circolari’, which do not have the same legal force of law but are aimed at providing directives to various ofices and departments regarding the interpretation and implementation of law. Immigration applications and permits are generally managed and issued, with some exceptions, by Immigration Ofices at the ‘Prefettura’ (Government representative ofice) established in each province. Italy is divided into 20 regions, and each region is further divided into several provinces. Immigration Ofices issue different types of permits after receiving the necessary clearances from the Labour Ofice and the Police. Inspections on working conditions and employment relationships are undertaken by the Labour Inspectorate. Social security aspects are handled by the National Social Security Agency (INPS), while issues relating to health and safety and accidents at work are monitored by the National Labour Insurance Agency (INAIL). Immigration regulations are enforced by the ‘Prefetto’ (the representative of the Government in each Province), by various police authorities, by the Labour Inspectorate, and by the local police. 2. SOURCES AND CONFLICTS OF LAW 2.1 Outline the principal sources of law relating to immigration for this jurisdiction • • • • • • • Law No. 91 of 5 February 1992 – Citizenship Law; Legislative Decree No. 286 of 25 July 25, 1998 – Consolidated Code on immigration and on dispositions applicable to foreign citizens; Presidential Decree No. 394 of 31 August 31, 1999 – Implementation and enforcement of dispositions set forth by Legislative Decree 286/98; Legislative Decree No. 72 of 25 February 2000 – Implementation of EU Directive 96/71/CE concerning the posting of workers in the framework of the provision of services; Law No. 189 of 30 July 2002 (so-called Bossi/Fini); Presidential Decree No. 334 of 18 October 2004, changes to Presidential Decree No. 394/1999; Legislative Decree No. 30 of 6 February 2007 – Implementation of EU Directive No. 2004/38/CE on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states; EUROPEAN LAWYER REFERENCE SERIES 135 Italy • • 3. Interministerial Decree No. 850 of 11 May, 2011 – Deinition of various types of visas and conditions for their issuance; Legislative Decree No. 108 of 28 June 2012 – Implementation of EU Directive No. 2009/50/CE on the conditions of entry and residence of third-country nationals for the purposes of highly qualiied employment (Blue Card). BUSINESS IMMIGRATION 3.1 Unsponsored business-related immigration 3.1.1 Self-Employment, Entrepreneurs, Investors Italian immigration law provides the right, under certain conditions, for foreign nationals to enter Italy and carry out self-employment activities (ie, all activities which do fall within the subordinate work category through the procedure of the Autonomous Work permit which is regulated by the Article 26 of Decree No. 286/98. ‘Autonomous work’ refers to freelance and consultancy activities and in general all activities in which a professional has discretion and autonomy regarding the organisation of his work and is not ranked below another employee in terms of seniority or ofice hierarchy. It generally includes the appointment of the individual as board member of a company. Autonomous work permits can be issued for: • Activities which are subject to a licence. The procedure for those who intend to carry out an activity subject to a licence or enrolment with a professional body (such as doctors, lawyers, architects, etc) is the most lengthy one, as the foreign worker needs to register irst with the relevant professional body. The procedure to obtain such clearance varies depending on the type of activity the foreigner wishes to perform in Italy. • Consultancy activities. Freelancers and anyone willing to carry out nonlicensed activities, need to secure a contract with an Italian company and be guaranteed a yearly compensation of not less than EUR 8,500 per year. In general, however, the Labour Ofice expects much higher compensation for these kinds of permits. Indeed, it would raise concern if compensation were kept at the minimum. The contract must be submitted to the Labour Ofice for clearance. After its issuance the application for the permit is lodged with the Police Ofice. • Entrepreneurs and Oficers of Italian companies. Authorisations for those appointed as oficers (members of the board) of Italian companies are issued the fastest and have the fewest requirements, but the Italian company must have been established for at least three years. The foreign national will have to provide evidence of the appointment in ofice and, based on our experience, the Immigration Ofice will also review the inancial status of the company and can raise concerns where the company has incurred losses or has a limited number of employees and low yearly turnover. Procedure The application for obtaining an Autonomous Work Permit is iled directly 136 EUROPEAN LAWYER REFERENCE SERIES Italy by the foreign worker (not by the company) or by a duly appointed delegate with a power of attorney. The Work Permit application is iled with the local Police Ofice after a preliminary clearance by the Labour Ofice or Chamber of Commerce, depending upon the type of work activity. As soon as the permit is issued, the foreign worker can apply for an entry visa at the Italian consulate in his country of residence. For these kinds of permits, contrary – for example – to the permits for ‘Intra Company Assignments’ (see below), the consulate has a wider discretion to review the application and can request additional documents and information. Consequently, we have at times experienced dificulties at consulates for some applications, despite the individual having obtained all necessary clearance in Italy. After issuance of the visa, the worker can enter Italy and will need to apply, within eight days from entry, for the Residence Permit at the Post Ofice, after which he will inalise the application with the local Police Ofice, that is, the authority in charge of the issuance of Residence Permits. Extension of stay The Autonomous Work Permit has no expiry date and does not need to be renewed at any time. The worker will however need to extend the Residence Permit (which usually has an initial maximum duration of two years). This can be done with an in-country procedure whenever an extension is necessary. To obtain an extension the worker will need to prove compliance with tax and social security obligations and show that his contract/ assignment has been extended. Limitations The issuance of Autonomous Work Permits is subject to the availability of the quotas, as provided by Article 3 of Decree No. 286/98. A limited number of quotas is issued periodically (usually once a year) by the Italian Government, and is divided for each province; if obtained, the quota allows the foreigner to obtain work authorisation and the relevant entry visa. The issuance and number of quotas is, however, unpredictable and therefore the obtainment of this type of permit is generally rather dificult. 3.1.2 Autonomous Work Permit for intra-company assignees Workers who meet the conditions of an ‘Intra-Company Assignment’ (see below) but who are seconded to Italy in order to carry out autonomous work activities directly for the beneit of the Italian host company, can obtain an Autonomous Work Permit instead of a standard Intra-Company Permit. The individual shall not be hired by the Italian company and therefore will need to pay his own taxes, social security charges, etc. Procedure The procedure for obtaining this type of permit is identical to the standard Autonomous Work Permit process, but the applicant will need to prove both this employment status with the sending company as well as the contractual EUROPEAN LAWYER REFERENCE SERIES 137 Italy agreement (consultancy) with the Italian host company. The law indicates that the worker must have a minimum compensation paid by the Italian company of approximately EUR 8,500 per year but several Immigration Ofices have conirmed that, due to the high specialisation and seniority that the employee must prove, they can issue this kind of permit only when a much higher compensation is provided for. Accordingly, these kinds of applications are subject to a high degree of discretion by the authority and must be reviewed on a case-by-case basis. 3.1.3 Elective Residence Visa The Elective Residence Visa is regulated by Article 11 of Decree 394/99. It is limited to individuals who have a proliic amount of money and savings in the country of origin and who intend to live in Italy without working. If the applicant has purchased a property in Italy, he has a higher chance of obtaining the visa but property ownership is not a condition for obtaining the visa. A rented property can sufice. The applicant’s income cannot be derived from current employment or any other work activities. Applicants need to show a stable source of income deriving, for example, from owned real estate, saving accounts or a portfolio. The consulate may request original inancial statements from banks, investment/brokerage irms or social security, all indicating current balances. The deciding factor is showing established wealth that would allow the applicant to live in Italy without working. The minimum threshold set forth by the law is EUR 31,159 per year. However, consulates have full discretion to request a much higher income, and they usually do. Procedure Elective Residence Visas are applied for at the Italian consulate local to the applicant’s domicile. The applicant will need to submit documents proving his inancial status, Italian accommodation (it can be a rented apartment) and an international medical insurance valid in Italy. In some cases the consulate can also require a Certiicate of Good Conduct (Police record) issued by the local Police authority. Within eight days of entry to Italy, the individual must apply for the residence permit at the Post Ofice and conclude the application at the local police headquarters. 3.1.4 Business Visitors Business visitors can enter Italy for a short stay (maximum 90 days in a 180-day period) for ‘travel that has an economic/commercial basis, to make contacts or conduct negotiations, to learn or carry out maintenance and repairs on equipment and machinery purchased or sold pursuant to a commercial contract or joint venture agreement’. In particular, with the exception of attending exhibitions, business meetings and negotiations with customers or potential customers, for all other activities (for example hands-on activities to be carried out by the business visitor) it is advisable that there be an existing contract in place 138 EUROPEAN LAWYER REFERENCE SERIES Italy between the sending company and the host company, which regulates the services that the sending company must provide to the host company. The application of this rule requires the review on a case-by-case basis of what the visitor intends to do in Italy. The criteria to be taken into account are generally the following: • there must be a foreign employer who directs the employment; • proits must go to the foreign employer; • proits must accrue abroad; • payment to the visitor should be made by the foreign employer; • services being performed are not ones which a Italian worker would have to be hired for, are not inherently part of the Italian labour market, and are not primarily beneitting the Italian entity as local work; • there should be an agreement in place between the foreign (sending) company and the Italian (host) company. Nationals of the following countries (non-Visa Nationals) do not require a visa for visits up to a maximum of 90 days for business activities, but are required to provide supporting documents, such as an invitation letter and an assignment letter from their employer, to demonstrate the scope and duration of the visit: Albania, Andorra, Antigua and Barbuda, Argentina, Australia, Bahamas, Barbados, Bosnia-Herzegovina, Brazil, Brunei, Canada, Chile, Costa Rica, Croatia, El Salvador, Former Yugoslav Republic of Macedonia (FYROM), Guatemala, Honduras, Hong Kong, Israel, Japan, Malaysia, Macao, Mauritius, Mexico, Monaco, Montenegro, New Zealand, Nicaragua, Northern Marianas, Panama, Paraguay, Saint Kitts and Nevis, Serbia, Seychelles, Singapore, South Korea, Taiwan, United States, Uruguay, Venezuela. Nationals of other countries that do not have a visa waiver programme with Italy (Visa Nationals) need to apply – irrespective of the duration of their trip – for a business visa at the Italian consulate in their country of origin. 3.2 Sponsored business-related immigration 3.2.1 Types of sponsor-based employment visas Subordinate workers An Italian company willing to hire a non-EU worker will need to apply for a Subordinate Work Permit. These permits are regulated by Article 22 of Legislative Decree No. 286/98. The issuance of Subordinate Work Permits is subject to the availability of quotas. A limited number of quotas is issued periodically by the Italian Government, and divided for each Italian Province. Temporary work assignments There is an exception to the quota system for temporary work assignments (they are temporary because in total the assignment cannot exceed four or ive years, depending on the type of permit). The condition precedent for these permits is that the workers remain hired by the foreign sending company and are only temporarily assigned to work at an Italian company. EUROPEAN LAWYER REFERENCE SERIES 139 Italy Temporary work assignments are regulated by Article 27 of Legislative Decree No. 286/98. There are three types of temporary work assignments, depending on the relationship between sending and host company: Intra-Company Assignment – when a highly specialised worker with at least six months of seniority within the same working ield (some Immigration Ofices, however, require that the worker has at least six months seniority with the sending company) is seconded to an Italian company or branch which is part of the same company group of the sending company. Highly skilled workers – the law does not speciically require that the sending and host companies are part of the same group for this category of permits, but most Immigration Ofices request proof of afiliation between the sending and the host company in any event. Accordingly, this kind of permit is very similar to the Intra-Company Permit. For this permit, however, six months experience in the same ield or six months seniority with the sending company is not required. The company must, however, prove that the worker is highly skilled (generally a university diploma will sufice) and that the worker is needed for implementing a speciic project. Service Agreement Assignment – when the sending and host companies are not part of the same group, it is still possible to obtain a temporary work permit based upon a Service Level Agreement executed between the two companies. The Agreement must provide that it is necessary that foreign personnel be assigned in Italy in order to carry out some specialised work, such as installing machinery or conducting quality controls. For these kinds of permits, it is necessary for the Italian host company to inform the trade unions. Even though the unions do not have any right to object to the assignment, Italian companies are generally hesitant to start this procedure due to the impact it may have on industrial relations. Internship Assignment (Article 27, f) – a foreign worker can be assigned by a foreign employer to attend an internship or training programme with an Italian company. The issuance of the Work Permit is subject to approval by the local Regional Ofice of an internship/training programme. In some circumstances, a third-party entity must also sponsor the internship/ training programme. Entities that can sponsor internship assignments are: employment centres and agencies, universities and institutes issuing academic degrees, private non-proit educational institutions etc. Blue Card permits Since 8 August 2012, Italian companies can hire – out of the quota limitation – non-EU nationals with a highly specialised job proile who meet certain educational and employment requirements. Qualiication requirements: • the foreign worker must have completed a post-secondary study programme with a minimum duration of three years; • the school must be an institution of higher education recognised by the state in which it is located; 140 EUROPEAN LAWYER REFERENCE SERIES Italy • the foreign worker’s university diploma must be recognised by the Italian Ministry of Foreign Affairs; • the foreign worker’s profession must be acknowledged by the Italian Ministry of Education; • the foreign worker must be offered a contract or a irm job offer for a position that must be illed by a highly qualiied professional (Level 1, Level 2, or Level 3 of the ISTAT – Italian institute of statistic – classiication of occupations); the contract must be valid for at least one year and must offer a minimum salary of at least EUR 25,500 per year. The holder of a Blue Card permit issued by another EU country can, after 18 months, move to Italy without obtaining a visa. However, within one month after entering Italy, the employer must notify the Immigration Ofice and obtain a local work authorisation. Procedure The procedure to obtain a work permit for local hiring of a temporary work permit and of the Blue Card (unless the foreign worker is in possession of a 18 month old Blue Card issued by another EU country) is similar. The difference is that the application can be iled only after the applicant has obtained the Declaration of Value of his diploma, to be done by the Italian consulate where the diploma was issued. After this step, the Ministry of Education will need to conirm that the diploma matches the job offered to the applicant. The Work Permit application is iled online and shall be lodged with the local Immigration Ofice of the city where the worker has been assigned to work. The Immigration Ofice will consult the Labour Ofice (for local hiring work permits the Ofice will conduct a market test) and obtain a security clearance by the police. As soon as the Work Permit is issued, the foreign worker can apply for the entry visa at the Italian Consulate in his country of residence. After the visa has been issued the worker can enter Italy and will need to apply, within eight days from entry, for a Residence Permit at the Post Ofice, after which he will conclude the application with the local Police Headquarters; the authority in charge of issuing Residence Permits. Fast-track procedure for Intra-Company Assignments The Ministry of the Interior has introduced a fast-track procedure for IntraCompany Assignments. In order to apply under this procedure, the Italian company must irst register and be approved by the Ministry of the Interior. Once the company is registered, it will be allowed to ile online work permit applications and it will no longer require the clearance of the Labour Ofice, nor the submission of those documents which are generally requested for standard applications. To register with the Ministry, employers must satisfy certain mandatory requirements, such as compliance with tax and social security payments and compliance with workers’ health and safety regulations. The Ministry will also review the company’s inancial status and labour relations (such as EUROPEAN LAWYER REFERENCE SERIES 141 Italy whether the company has recently made collective dismissals). The company must execute a framework agreement with the Ministry and provide any requested corporate documents, such its Company’s Register, corporate bylaws and articles of incorporation. Once registered, the employer will receive a password to access the online system and check on the status of applications to his company. Work Permit applications iled using the fast-track procedure are directly processed by the Immigration Ofice which does not require any document to be submitted for the application to be approved. Extension of stay Local hiring and Blue Card: Work Permits issued for standard local hiring procedure or for hiring pursuant to the Blue Card procedure do not need to be renewed upon their expiry. The foreign worker is entitled to work in Italy as long as an employment relationship with an Italian company is in place. In the event that the worker loses his job, he can obtain a one-year extension to look for a new job. The Residence Permit has an initial maximum duration of two years, and can be renewed by the police whenever an extension is necessary. Temporary Work Assignments: Work Permits and Residence Permits for work assignments have an initial maximum duration of two years. They can be renewed before the expiration date with an in-country procedure, but the length of the assignment cannot exceed: (i) ive years for Intra- Company Assignments; and (ii) four years for highly skilled workers, Service Agreement Assignments and Internship assignments. Limitations Temporary Work Permits do not fall within the quota system. Accordingly, they can be applied for at any time without needing to wait for the government to release quotas. This is one of the reasons why they are widely used by multinational companies. On the contrary, permits for local hiring are subject to quota limits periodically set by the Government, unless they fall within the Blue Card bracket. 3.2.2 Role, requirements, and reporting duties of sponsors The Italian sponsoring company plays a key role in the Work Permit procedure. The Italian company must sponsor the permit by iling an application in its own name. The company must provide the Ofice with information about its inancial and corporate status, yearly turnover, income, number of employees, type of National Bargaining Agreement applied, etc. Upon the worker’s entry into the country, the company, together with the foreign worker, will need to execute the so-called ‘Contract of Stay’ at the Immigration Ofice. The contract of stay is a document in which the company and the worker conirm the terms and conditions of the assignment detailed in the application. Any extensions of the work permit must also be applied for by the company and cannot be requested by the worker. 142 EUROPEAN LAWYER REFERENCE SERIES Italy Even though this is not de facto a legal requirement (the law does not require that a company must have been established for a certain number of years or must have a minimum yearly turn-over or income) it is common practice for the authorities to take into account the inancial and corporate status of the host company as well as to check compliance with all tax and social security obligations for its employees. The company must speciically indicate in the application: (i) whether it has enforced any collective dismissal for reduction of personnel during the last 12 months; and (ii) not to have any workers under ordinary or extraordinary redundancies, with the same skills and characteristics of the worker on assignment. If collective dismissals have been enforced, this may have a negative impact on the issuance of the permit/s. 3.2.3 Civil and criminal penalties for sponsors Under Italian law criminal liability is personal, therefore only individuals are subject to criminal sanctions. Companies, on the other hand, are held liable for the payment of pecuniary ines imposed upon their legal representatives, oficers and managers. Criminal sanctions would therefore be applied not to the company but rather to the oficers and managers who act in its name and on its behalf. An exception to this rule is the provision of Law 231/2001 which introduced the administrative responsibility requirement, stating that organisations may be held liable for certain crimes of fraud, committed or attempted by members of senior management and by those working under the direction or supervision of members of the senior management. The penalty for aiding or encouraging the illegal entry of foreigners is imprisonment of up to three years and a ine of up to EUR 15,000. An exception exists if the foreigner entered Italy for humanitarian reasons or dire necessity. The penalty for hiring foreign workers with expired, revoked or annulled permits and without a permit of stay is imprisonment from six months up to one year and a ine of EUR 5,000 for each illegal employee. Failure to carry out the necessary registration requirements for the immigrant will also result in a term of imprisonment of up to three years, and the avoidance of tax contributions, in ines of up to EUR 1,032.91. 4. DEPENDANTS Workers are entitled to have their family members join them in Italy, either if they have permanently transferred to Italy, or if they are on a Temporary Work Assignment. The term ‘family member’ refers to the worker’s spouse; children under the age of 18; children over the age of 18 if physically or mentally handicapped; parents that have no other children abroad and cannot care for themselves inancially or parents over the age of 65 that cannot care for themselves for health reasons. Italy does not recognise common-law spouses. Only recently have Police Ofices (after a ruling by the Constitutional Court) started to grant Residence Permits, to same sex partners of Italian citizens, provided that the couple is legally married in a foreign country which EUROPEAN LAWYER REFERENCE SERIES 143 Italy recognises same sex marriages. Dependants will obtain a family visa which is linked to the principal’s residence permit. Accordingly, if the principal leaves the country and his permit is no longer valid, the dependants’ permit will automatically become null and void. There are four categories of applications for dependants: Family reunion: Workers living in Italy and holding a valid Residence Permit are entitled to invite their family members who are still living abroad to join them. Accompanying family members: This procedure enables workers and their family members residing in the country of origin to enter Italy together, at the same time. Workers enter Italy with work visas, while their family members are granted a family visa. Family cohesion: Family members can also enter Italy with a short-term visa (unless they are non-Visa Nationals) and, in some cases, after having reported their presence in Italy to the local Police (to be done within eight days of arrival only if entering Italy through another Schengen country) they can apply for a change of status and request a family permit without going through the family visa application. Family members of an EU national: Family members of nationals of the European Union are entitled to obtain a special residence permit called ‘Carta di Soggiorno per Familiare di Cittadino UE,’ which has a longer validity compared to standard residence permits (ive years), with no need to apply for a family visa. They are in fact entitled to enter Italy with a short-term visa (see above: family cohesion) and should directly apply for the ‘Carta di Soggiorno.’ In case of extension, the Police can issue a residence permit with unlimited validity. Once the family Residence Permit is issued, dependants are entitled to carry out any type of work activity (autonomous or subordinate) without being required to convert their permit into a work residence permit. 5. SETTLEMENT AND CITIZENSHIP 5.1 General process and time frame for obtaining permanent residence According to Article 9 of Decree No. 286/98, after ive years of continuous legal residence in Italy, foreign workers may apply for a Permanent Residence Permit. The application is iled at the Post Ofice and processed by the local Police Headquarters, similarly to all other standard permits. 5.2 General process and time frame for obtaining citizenship Law No. 91 of 5 February 5, 1992, speciies a number of different cases for the acquisition of Italian citizenship, some of which are automatic and others that apply only to speciic conditions. Naturalisation Foreigners are entitled to apply for Italian citizenship through the 144 EUROPEAN LAWYER REFERENCE SERIES Italy ‘naturalisation’ procedure after 10 years of legal residence in Italy. Mandatory conditions are that: (i) the applicant must have continuously and legally resided in Italy for 10 years; and that; (ii) he must be compliant with the iscal obligations (ie ile tax returns) related to his employment. The application is iled at the local Prefecture and processing times for obtaining Italian nationality are extremely long and often exceed three years. The naturalisation requirements are different if the applicant has nativeborn Italian parents or grandparents: in this case, applications can be iled after only three years of legal residence in Italy. Marriage Foreigners who are married to an Italian national can apply for the Italian citizenship: (i) after two years of marriage if residing in Italy; or (ii) after three years of marriage if residing abroad. Such time requirements may be shorter if the applicant has children with the Italian spouse, one year if residing in Italy and one and a half year if residing abroad. The application is iled at the local Prefecture or at the relevant Italian Consulate and processing times for the obtainment of the Italian nationality are usually longer than two years. Ancestry Italian citizenship law afirms the principle of jure sanguinis (continuity of blood), by which any child born to an Italian parent instantly inherits Italian citizenship. Under some circumstances, Italian citizenship can also be claimed if one of the grandparents or great-grandparents were Italian nationals. Ancestry applications can be iled at the local Town Hall if residing in Italy or at the relevant Italian Consulate if residing abroad, and processing times to obtain citizenship are usually about one year. 6. PRESENT CLIMATE AND FUTURE LEGISLATION 6.1 Present climate and trends Blue Card An important change to the Italian immigration system has been introduced by Legislative Decree No. 108 of 28 June 2012 which implemented EU Directive No. 2009/50/CE on the conditions of entry and residence of thirdcountry nationals for the purposes of highly qualiied employment (so-called Blue Card). Previously, the ability of Italian companies to attract and hire specialised non-EU workers was in fact impaired by the quota system. However, starting from 6 August 2012, Italian companies are entitled to directly hire highly specialised non-EU workers who meet certain educational requirements, without being subject to any quota restrictions. Integration Agreement Starting 10 March 2012, all foreigners over 16 years of age who enter Italy for the irst time and apply for a Residence Permit with a validity of at least EUROPEAN LAWYER REFERENCE SERIES 145 Italy one year will be required to sign a so-called ‘Integration Agreement’ at the Immigration Ofice or at the Police Headquarters. The Agreement, where possible, will be translated into the native language of the applicant. The Integration Agreement regulates the new points system for the residence permit whereby foreigners will be accredited with points or credits based on their level of integration into Italian society. Upon signing the Agreement, each foreigner will be automatically assigned 16 points, which correspond to a suficient knowledge of the Italian language (A1) and the basic principles of Italian culture and public life. From the date of signing the agreement, the foreigner has two years to obtain the required minimum points, although this can be extended up to three years if necessary. Within six months of signing the agreement, the foreigner will have to attend a free cultural education course (ive to 10 hours). The course can be taken in one of the following languages: English, French, Spanish, Arabic, Chinese, Albanian, Russian and Filipino. The foreigner will be awarded points by demonstrating knowledge of the Italian language, courses taken, educational qualiications etc (16 points are granted automatically upon execution of the Contract of Stay) Those who obtain at least 30 points will be considered to have fulilled the requirements of the Integration Agreement, while those who fail to reach the minimum points will be given one year to increase their score. Points can be deducted for reasons such as any criminal sentence, even if it’s not a deinitive sentence, being a threat to public security, or committing administrative and tax offences, etc. Those who have all their points deducted will no longer be eligible for a permit of stay or its renewal and will be expelled from the country. 6.2 Future legislation Proposed changes to citizenship rules The Government has approved a draft law to simplify the procedures of citizenship acknowledgement for children who reach the age of 18 and who are born in Italy to foreign parents. The law aims to prevent administrative dysfunction or delays and speed up the process for citizenship adjudication. The draft law must however be conirmed by Parliament. Limitations to new quota issuance According to the latest news, due to the dificult economic and political climate, it is not expected that new ‘blue collar’ quotas shall be issued in the near future. Local hiring: The new Decree No. 76 of June 23 2013, which entered into force on 29 June 2013, slightly changed the application system for Work Permits for foreign workers under the quota system. When an employer submits an application for hiring a non-EU national, the employer is required to conduct a labour market test (ie to check whether there is any workers in Italy who could take the same job). The employers will only be issued the Work Permit after completing a 146 EUROPEAN LAWYER REFERENCE SERIES Italy resident labour market test and showing that they’ve failed to ind a suitably qualiied settled worker who can ill the job. Apprenticeship and internship: The above-mentioned Decree has also announced changes to the rules governing apprenticeship and internship programmes for foreign students. The maximum number of foreign students to be allowed into the country will be ixed every three years by the end of June. Before the publication of the irst Apprenticeship and Internship Decree, Italian consulates will continue to issue entry visas for apprenticeship and internship to all who meet the requirements, without being subject to the quota system. 7. RESOURCES 7.1 Useful government and non-governmental agencies, departments, and organisations Ministry of Foreign Affairs: http://esteri.it – information regarding visa applications. In addition, each Italian Consulate has its own website where information on speciic jurisdictions is provided. 7.2 Additional helpful websites or resources (for example, visa processing times, visa fee charts, etc) Ministry of Internal Affairs: http://interno.it. Ministry of Labour and Welfare: http://lavoro.gov.it. National Police: http://poliziadistato.it. EUROPEAN LAWYER REFERENCE SERIES 147 Contact details Contact details GENERAL EDITOR Laura Devine Laura Devine Solicitors 100 Cannon Street London EC4N 6EU United Kingdom T: +44 (0) 20 7469 6460 F: +44 (0) 20 7469 6461 E: enquiries@lauradevine.com W: www.lauradevine.com Laura Devine Attorneys LLC 477 Madison Avenue Suite 240 New York 10022 USA T: +212-661-5401 F: +212-661-5405 E: information@lauradevine.com W: www.lauradevine.com AUSTRALIA Megan Arends & Rozanne Topham Minter Ellison Level 22, Waterfront Place, 1 Eagle Street Brisbane 4000 Australia T: +61 7 3119 6535 F: +61 7 3119 1535 E: megan.arends@minterellison.com W: www.minterellison.com AUSTRIA Dr Wolfgang Hahnkamper & Dr Gernot Fiebiger Neudorfer Rechtsanwälte Esslinggasse 9 Vienna A-1010 Austria T: +43 (0)1 90101-0 F: +43 (0)1 90101-12 EUROPEAN LAWYER REFERENCE SERIES E: ofice@neudorferlaw.at W: www.neudorferlaw.at CANADA Jacqueline Bart Jacqueline Bart & Associates 181 University Avenue Suite 2200 Toronto, Ontario M5H 3M7 Canada T: +416-601-1346 F: +416-601-1357 E: info@bartlaw.ca W: www.bartlaw.ca CHINA Laura Danielson & Zhu ‘June’ Cheng Fredrikson & Byron P.A. 200 6th St. S. Ste. 4000 Minneapolis 55402 USA T: +612 492 7148 (Laura Danielson) T: +612 492 7399 (Zhu Cheng) F: +612 492 7077 E: ldanielson@fredlaw.com E: zcheng@fredlaw.com W: www.fredlaw.com FRANCE Valérie Maricot & Stéphane Coulaux CMG Avocats 25 rue Saint Ferdinand Paris 75017 France T: +33 (0)1 58 05 20 40 F: +33 (0)1 58 05 20 41 E: cmg@cmglegal.net E: maricot@cmglegal.net E: coulaux@cmglegal.net W: www.cmglegal.net 295 Contact details GERMANY MEXICO Dr. Gunther Mävers Mütze Korsch Rechtsanwaltsgesellschaft mbH Hohenstaufenring 57 Cologne 50674 Germany T: +49-221-50003-606 F: +49-221-50003-636 E: maevers@mkrg.com W: www.mkrg.com Enrique J. Arellano Enrique Arellano Rincón Abogados, S.C. Moliere 39-9 Col. Chapultepec Polanco Mexico City Federal District Mexico 11560 T: +52-55 5280-1233 F: +52-55 5280-3067 E: earellano@arellanoabogados.com.mx W: www.arellanoabogados.com.mx HONG KONG Eugene Chow Chow King & Associates Suite 1010, Sun Hung Kai Centre 30 Harbour Road Wanchai Hong Kong T: +852-2838-1878 F: +852-2838-4362 E: eugene@chowking-visas.com W: www.chowking-visas.com INDIA Poorvi Chothani, Esq. LawQuest Advocates 103 Maker Tower ‘F’ 10th Floor, Cuffe Parade Mumbai 400005 India T: +91 22 4002 0954 F: +91 22 2216 3215 E: info@lawquestinternational.com W: www.lawquestinternational.com MONACO William Easun Tempest Legal Services Monaco SARL Le Monte Carlo Palace, 7 Boulevard des Moulins Monte Carlo MC 98000 Monaco T: +377 97981255 F: +377 97981139 E: easun.william@tempestlegal.com W: www.tempestlegal.com THE NETHERLANDS Jelle Kroes Kroes Advocaten Immigration Lawyers De Ruijterkade 112 Amsterdam 1011 AB The Netherlands T: +31 (0)20 5207050 F: +31 (0)20 5207069 E: kroes@kroesadvocaten.nl W: www.kroesadvocaten.nl ITALY NEW ZEALAND Marco Mazzeschi Mazzeschi Viale Certosa 40 Milan 20149 Italy T: +39 0577 926921 F: +39 0577 924530 E: mm@mazzeschi.it W: www.mazzeschi.it David Ryken Ryken & Associates Level 8, 2 Kitchener Street Auckland Central Auckland 1010 New Zealand 296 PO Box 501 Auckland 1140 EUROPEAN LAWYER REFERENCE SERIES Contact details New Zealand T: +64 9 356 7370 F: +64 9 356 7372 E: david@rykenlaw.co.nz W: www.rykenlaw.co.nz SINGAPORE Leon Kwong Wing KhattarWong LLP 80 Rafles Place #25-01 UOB Plaza 1 048624 Singapore T: +65 6238 3018 F: +65 6534 1090 E: leonkwongwing@khattarwong.com W: www.khattarwong.com SPAIN Antonio Ernesto Arenas Lopez Fernando Scornik Gerstein LLP 9-10 Staple Inn Buildings 2nd Floor, Holborn London WC1V 7QH United Kingdom T: +44 (0) 20 7404 8400 F: +44 (0) 20 7404 8500 E: a.lopez@scornik-gerstein.co.uk W: www.scornik.com SWITZERLAND Urs Haegi Vischer AG Schützengasse 1 P.O. Box 1230 Zürich CH-8021 Switzerland T: +41 58 211 3400 F: +41 58 211 3410 E: uhaegi@vischer.com W: www.vischer.com EUROPEAN LAWYER REFERENCE SERIES TURKEY Maria Çelebi Bener Law Ofice Yapi Kredi Plaza, A Blok, Kat 1 Levent Istanbul 34330 Turkey T: +90 212 325 0232 E: maria.celebi@bener.com.tr W: http://bener.com.tr UNITED KINGDOM Laura Devine Laura Devine Solicitors 100 Cannon Street London EC4N 6EU United Kingdom T: +44 (0) 20 7469 6460 F: +44 (0) 20 7469 6461 E: enquiries@lauradevine.com W: www.lauradevine.com UNITED STATES Anastasia Tonello & Murty Gollakota Laura Devine Attorneys LLC 477 Madison Avenue Suite 240 New York 10022 USA T: +212-661-5401 F: +212-661-5405 E: information@lauradevine.com W: www.lauradevine.com 297