December 2017 Global Immigration Update

Feature Article  

EFFECT OF CRIMINAL CONVICTIONS ON IMMIGRATION: AN OVERVIEW – This article provides an overview of recent developments in several countries with respect to the effect of criminal convictions on immigration.

Country Updates

EUROPEAN UNION – The European Court of Justice recently dismissed a challenge by Slovakia and Hungary to a mandatory allocation of 120,000 asylum seekers from Greece and Italy to other European Union Member States.

ITALY – The “Investor Visa for Italy” platform has been launched. Also, Italy warns of a scam in which citizenship is promised quickly. Also, residence permits have been extended to unmarried partners of Italian citizens, and there is a simplified procedure for start-up incorporation.

TURKEY – The situation with respect to the United States-Turkey visa suspension implemented in October 2017 remains extremely volatile and changes frequently.

UNITED KINGDOM – The United Kingdom plans to double the number of visas available in the Tier 1 (Exceptional Talent) category from 1,000 to 2,000 per year. Also, the British government has published a technical note on its proposed administrative procedures for European Union citizens living in the UK, and their family members, who want to stay on after Brexit.

Feature Article


This article provides an overview of recent developments in several countries with respect to the effect of criminal convictions on immigration.


In addition to meeting the specific eligibility requirements for either temporary or permanent immigration programs, a foreign national who wishes to visit, study, work, or permanently settle in Canada must ensure admissibility to Canada before arrival. The grounds on which a foreign national may be found inadmissible to Canada are set out in sections 34 to 45 of the Immigration and Refugee Protection Act (IRPA). Among these, subsections 36(1) and 36(2) of IRPA establish serious criminality and “simple” criminality as grounds of inadmissibility.

Under subsection 36(1) of IRPA, serious criminality is defined as “having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed” or “having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years”. Subsection 36(2) pertains to “simple” criminality, which is defined as “having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence” or “having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament”.

It is important to note that individuals who are already permanent residents of Canada may be found inadmissible for serious criminality and can be subject to removal proceedings. On the other hand, foreign nationals can be found inadmissible for both “simple” criminality and serious criminality.

To determine whether a foreign national convicted of an offence abroad is inadmissible to Canada, it is necessary to perform a thorough criminal equivalency analysis. If the essential elements of the foreign law creating the offense pursuant to which a foreign national was convicted are comparable to the essential elements of the equivalent Canadian offense, a foreign national may be found inadmissible on criminality or serious criminality grounds. It is noteworthy to mention that in Canada, a conviction for “Driving Under the Influence of Alcohol” (DUI) is generally considered to be a criminal offense (rather than a summary conviction) that renders a foreign national inadmissible to Canada. Following a proper equivalency assessment, if the foreign DUI conviction is indeed considered similar enough to the Canadian offense of “Operating While Impaired,” a foreign national will be found inadmissible to Canada on criminality grounds.

Should a foreign national or permanent resident of Canada be found inadmissible, IRPA provides three different scenarios under which a foreign national can either permanently or temporarily overcome inadmissibility and gain entry into Canada to visit, work, study, or permanently settle: (1) If 10 years have elapsed since the completion of the imposed sentence, a foreign national can be deemed rehabilitated without the need to submit a formal application. A person who is deemed rehabilitated permanently overcomes his or her inadmissibility and may be granted entry into Canada with evidence to support that he or she has completed all the terms of the sentence. (2) If only 5 years have elapsed since the completion of the sentence, a foreign national may apply for permanent criminal rehabilitation by demonstrating that he or she is leading a stable lifestyle and is unlikely to commit another criminal offense. (3) Alternatively, if less than five years have elapsed, an application for a Temporary Resident Permit (TRP) can be made.


Foreigners seeking to enter Italy may be subject to checks by border, customs, currency, and health authorities.

If all of the requirements are not met, entry may be refused at the border, even if the individual has a valid visa. Under Article 10-bis of Italian Immigration Law, any foreigner who enters or stays in Italy illegally will be fined from € 5,000 to € 10,000.

Upon entering Italy, a foreign national must:

  • Enter through an official border crossing point;
  • Hold a valid passport or equivalent travel document authorizing entry;
  • Hold an entry/transit visa, if required;
  • Have enough money to cover the stay and the return trip (showing a return ticket is sufficient proof)
  • Have documents to justify the purpose and conditions of the stay

According to the Schengen Visa Code, entrance into Italy is not permitted to those who are considered a threat to public order, to the safety of the state, or to one of the other Schengen Member States.

To enter Italy, foreign nationals must not:

  • Be listed in the Schengen Information System as an inadmissible person
  • Be subject to expulsion measures
  • Be considered a threat to public order, national security, and international relations, as well as a threat to public order or national security of other Schengen countries
  • Have been convicted, whether or not the sentence is definitive, for crimes providing for arrest in flagrancy (such as homicide, robbery, riot, harm against public officers under the Italian Criminal Code) or for crimes relating to:
    • Trafficking in dangerous substances, including narcotics
    • Sex offenses and abuses
    • Aiding and abetting of illegal immigrants in Italy and of illegal emigrants from Italy to other states
    • Prostitution exploitation
    • Employment of minors in illicit activities
  • Be convicted, by final judgment, of a copyright-related offense (Law on Copyright and the Italian Criminal Code)
  • Be subject to a previous expulsion order; re-entry before the order allows is permitted only if special permission by the Ministry of Interior is obtained or if the entry ban is lifted beforehand by authorities

Police checks on individuals entering Italy or applying for a visa are made through the Schengen Security System (SIS) database and other available international databases (such as Interpol or Europol). No specific information or representation about past criminal charges is asked of individuals applying for a visa or to non-visa nationals (U.S. citizens) entering the country as business or tourist visitors.

Accordingly, if an individual is not “blacklisted” in the SIS or the other available security databases, he or she should not have any problems in entering Italy and the Schengen area.


When it comes to the relevance of criminal convictions for immigration issues, we should make a clear distinction between short stay on the one hand (less than 90 days), with a Schengen visa or on a free term, and long stay on the other hand. Long stay means more than 90 days and requires a residence permit. Short stay is regulated supranationally under the Schengen Treaty. This treaty is aimed at removing internal border controls between the Member States, and establishing a communal outside border. This means that a Schengen visa is valid for the entire Schengen area, and the rules for denying entry due to drug-related convictions are the same in every Member State. The policy has been laid down in the Schengen visa code.

A long-term stay, with a residence permit, is also mostly regulated by a supranational organization, the European Union (EU). The EU has issued many directives (which are binding on Member States) regulating the issuing of permits for family reunification, students, knowledge workers, seasonal workers, intra-EU migration, and many more categories. For all these permits, the EU decides whether they can be denied in case of a conviction. For a select few types of residence permit not currently governed by an EU directive, the Dutch government still has its own policy regarding drug-related convictions.

So there are three systems governing admissibility and removal from the Netherlands: Schengen, the EU, and the Dutch national system. Under each system, the authorities must establish whether the application or permit holder constitutes a threat to public order. The exact definition varies with each system and by category (admissibility or removal).

For refusing entry under the Schengen regime, a “threat to public order” can exist in the event of a single conviction for any kind of felony. When removing a residence permit holder from the EU, however, the test is much stricter. The threat has to be real and urgent. This means, for example, that it’s relevant what the conviction is for, and even more important, what the sentence is.

Besides being real, the threat also must be urgent. The authorities also take into consideration when the felony was committed and how the person’s behavior has been since then. If the fear of reoffending is low, it will be hard to actually remove someone from the EU.

Even when a threat is real and urgent, the authorities cannot simply remove a residence permit holder. In each individual case, the authorities must argue that their interest in removing the person outweighs the interest the person has to remain in the country. So, even in case of a real and urgent threat, it might not be possible to remove a residence permit holder if the person involved, for example, has been in the country for a long time or has minor children or a spouse living with him or her. The person involved can challenge the balancing of interests by the court.

A main distinction should be made between removing a current residence permit holder and refusing an application for a residence permit. The interest of the state much more easily outweighs the interest of the person involved with respect to an initial admission.

In conclusion, the Schengen area, the EU, and the Netherlands have a fairly balanced system to deal with persons convicted of crimes. There is no system in place requiring that a certain conviction automatically leads to refusal of entry or removal. There always is an individual balancing of interests.

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Country Updates


The European Court of Justice (ECJ) recently dismissed a challenge by Slovakia and Hungary to a mandatory allocation of 120,000 asylum seekers from Greece and Italy to other European Union (EU) Member States.

ECJ judges said the European Council had acted lawfully. The court said that EU institutions were on firm legal ground when they adopted measures to respond to “an emergency situation characterized by a sudden inflow of displaced persons.” The ECJ also concluded that the legality of the decision was not affected by retrospective conclusions about the policy’s effectiveness.

Budapest condemned the court ruling as “appalling and irresponsible.” The foreign minister, Péter Szijjártó, said, “This decision jeopardizes the security and future of all of Europe. Politics has raped European law and values.” Hungary and Poland have not relocated anyone yet, and the Czech Republic has not made any such offers for more than a year. All three countries risk being taken to court by the commission.

Karl Waheed offered the following answers in response to questions about the ECJ’s decision, in his capacity as Vice Chair of the International Bar Association’s (IBA) Immigration and Nationality Law Committee:

  1. What is the view of the Immigration and Nationality Law Committee on the ECJ decision?

The IBA promotes the rule of law, and this decision upholds the rule of law and backs the European Council’s authority to apply it uniformly, despite resistance from some Member States. This is good news for the governance of the EU.

  1. Why did Slovakia and Hungary object in the first place?

Slovakia considers itself to be ethnically homogeneous. It has presently taken in 16 refugees out of the 902 it has pledged to take. However, Slovakia has avoided provoking any “infringement procedures,” which is the financial penalty imposed by the ECJ for refusing to follow their ruling, and it has avoided this by promising to take in more refugees.

Hungary sees itself as defending European and Christian civilization. Prime Minister Orban has pledged to fight the quota. Orban is facing a re-election this fall, which may be encouraging him to double down on his refusal. To date, Hungary has not taken a single person, and in June the ECJ initiated Infringement procedures against it, Poland, and the Czech Republic.

  1. Will this ruling make any difference? Will these two countries now accept refugees?

Yes, this ruling makes the European Council stronger. It reinforces their decision-making authority, even in the face of a lack of unanimity. It shows that the Council can enforce solidarity upon the reluctant EU members to provide relief for the more exposed countries like Italy and Greece.

If the rule of law still has any currency in Europe at all, then Slovakia and Hungary are bound to follow the ruling of the ECJ. If they do not follow the ruling, we have a deeper political crisis of the EU on our hands.

If Slovakia and Hungary refuse to follow the ruling, the ECJ can implement infringement procedures that financially penalize the countries for not abiding with their ruling, which the ECJ already started initiating in June 2017.

  1. Why was there so much refugee migration in 2015 in particular? Are there still refugees trying to get into Greece/Italy?

Numerous factors contributed. A consequence of the escalation of the civil war in Syria was that more than one out of every two Syrians became a displaced person, either internally within Syria or outside it. Furthermore, German Chancellor Angela Merkel’s offer in September 2015 to accept 1 million refugees had the inverse effect of encouraging more people to emigrate. Concerning the Mediterranean crossings, the civil war in Libya destabilized that country so that there was no authority to prevent the traffickers from shipping out of Libya.

At present, there are still tens of thousands of people on boats arriving in Italy and Greece on a monthly basis. According to the International Organization for Migration, in the first five months of 2017, there were 60,000 arrivals in Italy compared to 47,000 in the first five months of 2016. So, the problem is far from being episodic, or from having resolved itself.

Italy and EU seem to do whatever they can, both legally and illegally, to keep boats from arriving in Italy. Take, for example, the EU-Turkey agreement from 2015. The EU is “refouling,” or relocating, thousands of asylum-seekers to Turkey, and yet Turkey is not considered a safe country because it has signed the outdated 1951 Convention relating to the Status of Refugees but not the modern 1968 Protocol.

  1. Where does this ruling leave the relocation “policy” of the EU?

This ruling reinforces the legitimacy of relocating within the EU. The ECJ described the relocation as fair and proportionate, so as to be in solidarity with Greece and Italy receiving so many arrivals. It reinforces the Dublin regulation, which took a hit to its legitimacy during 2015 when both Greece and Germany decided not to abide by it.

  1. Is this problem unique to the EU or are there other places where relocation is used?

It is not unique to the EU. Australia, for example, has similar agreements with Christmas Island and Papua New Guinea, where the latter two countries are paid to “warehouse” the asylum seekers. The problem with this is that these are not humane conditions. The asylum seekers are stuck on tiny islands for years while they wait for Australia to refuse them asylum. And what happens to them when they are refused asylum? Thus, relocation exists in other places, but it is not a model solution. At least within the EU, it can be done ethically among advanced countries, providing humane conditions during the asylum application process.

  1. Do we have any facts relating to the number of refugees affected? How many are there in Greece/Italy waiting relocation or who have been relocated?

According to the United Nations High Commissioner for Refugees, in 2015 approximately 1 million refugees arrived by sea in Europe. For 2016, it was 362,000 sea arrivals. In 2017, as of September, there have been 132,000 sea arrivals. Of those 132,000, Italy has received 103,000 and Greece 18,000.

Regarding relocation, 8,500 of the 39,600 targeted relocations from Italy have occurred, which is just 22 percent for Italian relocations. For Greece, 20,000 out of the 63,000 have been relocated, which is 31 percent.


The Investor Visa for Italy platform has been launched. Also, Italy warns of a scam in which citizenship is promised quickly. Also, residence permits have been extended to unmarried partners of Italian citizens, and there is a simplified procedure for start-up incorporation.

Investor Visa for Italy Platform

As of December 14, 2017, the Investor Visa for Italy platform is online and applicants can submit applications for the new Investor Visa. The investor visa will be valid for two years. During that time, the applicant can travel to Italy and apply for a residence permit.

The platform is available in English at Guidance is available at Detailed information on how to apply is at

Citizenship Scam Warning

After investigations carried out by the Italian finance police, five people were arrested for corruption in the town of Lodigiano. The investigations revealed a system of bribery by public officials falsely confirming the presence of Brazilian nationals and granting residency, consequently leading to their obtaining Italian citizenship. The ring of corruption revolved around an agency in Monza owned by a Brazilian entrepreneur who charged Brazilians between 3,500 and 5,000 euros for this process, while from this amount public officials were paid around 1,250 euros. The scam allowed approximately 500 Brazilians to obtain residency and Italian citizenship in the year 2016, when in reality they were never actually based in the Lodi area.

According to Italian law, in addition to formal registration with the town hall, residency is based on two fundamental elements:

  1. Physical presence in Italy, which must be regular and continuous, as opposed to sporadic and occasional. If an individual spends time in both Italy and another country, the periods of presence outside of Italy are compared with the periods of presence in Italy to determine which is prevalent.
  2. Intention to stay and live in Italy for the foreseeable future, which is subjective. To determine an individual’s intention to live in Italy on a regular basis, numerous aspects are examined, including but not limited to an individual’s conduct, social and personal habits, working relationships, family relationships, and business and personal activities.

Residence Permits Extended to Unmarried Partners of Italian Citizens

The Council of State has ruled (n. 5040/2017) that a foreign partner cohabiting more uxorio (marriage in fact) with an Italian citizen can obtain a residence permit for family reasons. This broad interpretation of Italian immigration law is based on new provisions introduced by Law No. 76/2016 on civil unions, under which cohabitation is defined as “the status of two people who have a stable relationship based on emotional bonds and on reciprocal moral and material assistance,” and on Decree 30/2007 on the right of European Union persons and their family members to move and reside freely within the territory of the EU and European Economic Area member states (Directive 2004/38/EC).

The Council of State’s ruling (in Italian) is at

Simplified Procedure for Start-Up Incorporation

The Administrative Court of Lazio (TAR) confirmed that it is possible to establish an Italian start-up company without a notary. Notary associations had challenged the digital, fast-track procedure set forth by the Italian Start-Up Act, but all the appeals have been rejected, confirming that start-ups can be incorporated digitally. Avoiding notary assistance can save the entrepreneur up to €2,000 for the incorporation of a company.

The incorporation of a start-up can be easily completed using the online start-up platform. Any future corporate amendment can also be filed using the platform.

The start-up platform is at A summary of the legislation in support of innovative start-ups (in English) is at A related annual report on the Start-Up Act (in English) is at

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The situation with respect to the United States-Turkey visa suspension implemented in October 2017 remains extremely volatile and changes frequently. Contact an ABIL Global attorney for advice in specific situations.

According to sources as of press time:

  1. U.S. citizens (with no other nationality) will be issued sticker visas upon entry into Turkey only if they can show legal residency (residence permits) in another country other than the United States. (Note: This is in clear contrast with airport policy over the past month, where U.S. nationals were consistently being issued sticker visas at Turkish airports as long as their flights originated outside the United States.)*
  2. Turkish consulates outside the United States are consistently issuing visas to U.S. nationals physically present at that consular post. Whether a particular consulate retains a local residence requirement is case-by-case.
  3. Turkish posts in the United States are still offering visa appointments to U.S. nationals on a limited basis, based on certain criteria such as medical needs, urgent family issues, international conferences, or sporting events.
  4. Current valid Turkish visas (including sticker visas) continue to be acceptable for entry into Turkey.

* The first point above on sticker visa issuance is the most significant departure from recent practice over the last few weeks. This position has not been confirmed via official government agency sources. This has only been confirmed informally by airport authorities at Sabiha Gökçen International Airport.

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The United Kingdom plans to double the number of visas available in the Tier 1 (Exceptional Talent) category from 1,000 to 2,000 per year and has announced new support for international talent. Also, the British government has published a technical note on its proposed administrative procedures for European Union citizens living in the UK, and their family members, who want to stay on after Brexit.

Tier 1 Exceptional Talent Visa Increase

In recognition of the importance of attracting talented individuals to come to the UK, the government has announced its intention to double the number of visas available in the Tier 1 (Exceptional Talent) category from 1,000 to 2,000 per year.

This route is for exceptionally talented individuals in the fields of science, humanities, engineering, the arts, and technology who wish to work in the UK. Such individuals are already internationally recognized at the highest level as world leaders in their particular fields, or who have already demonstrated exceptional promise and are likely to become world leaders or globally recognized in their fields of expertise.

This category requires an endorsement from one of five endorsing organizations:

  • Tech City UK
    • Arts Council England
    • The British Academy
    • The Royal Society
    • The Royal Academy of Engineering

The current allocation of 1,000 visas is split across these five endorsing bodies, but the additional 1,000 visas will be allocated to any one of these endorsing bodies depending on need.

The application is a two-stage process: (1) applying for an endorsement and (2) applying for a visa. Visas can be granted for up to five years, after which the applicant may apply for indefinite leave to remain. The advantage of this category is that the applicant does not need sponsorship by a business to work in the UK.

New Support for International Talent

In its latest autumn budget, the government has acknowledged the importance of encouraging and attracting talented individuals to come to the UK. The focus is on attracting individuals working in the international scientific and research community to come to the UK to further their careers in the field of research and development and innovation. This will be achieved by:

  • Changing the immigration rules to enable world-leading scientists and researchers endorsed under the Tier 1 (Exceptional Talent) route to apply for settlement after three years;
  • Making it quicker for highly skilled students to apply to work in the UK after finishing their degrees; and
  • Reducing red tape in hiring international researchers and members of established research teams by relaxing the resident labor market test and allowing the UK’s research councils and other select organizations to sponsor researchers

The accelerated route to settlement after only three years’ residence in the UK is intended to act as a significant draw for this pool of talented individuals, who will have a choice of which country in which to conduct their business and research activities.

The Chancellor’s reference to making it quicker for highly skilled students to start work is not a new initiative. Since July 2016, the Home Office has been piloting a new scheme for certain universities (currently Bath, Cambridge, Oxford, and Imperial College London). Their students will have their visa issuances facilitated with reduced documentary requirements and may benefit from a short six-month post-study visa to assist them in transitioning into being sponsored under Tier 2 in the UK.

The Immigration Minister, Brandon Lewis MP, also confirmed this during a speech in London on November 16, 2017. The Minister stated, “We are currently running a pilot to test whether highly compliant institutions can reduce the documentary burden being put on students as well as increasing the length of time that those students can stay in the UK after graduation.”

Administrative Procedures Post-Brexit

The British government has published a technical note on its proposed administrative procedures for EU citizens living in the UK, and their family members, who want to stay on after Brexit.

There are no surprises in the document. Much of the content has already been signaled in a June 2017 policy paper, in the Prime Minister’s Florence speech in September 2017, and in the various joint technical notes comparing the EU and UK positions on citizens’ rights that have been published after each round of negotiations.

Below are the key points from the proposals:

  • The rights of EU citizens living in the UK will be set in the Brexit withdrawal agreement and incorporated in UK law.
  • EU citizens who want to continue living in the UK will need to apply to obtain a new status. The application process will also be completely new. It will be simpler than the current voluntary system for registration certificates and permanent residence documents issued under EU law. There will be a right of appeal.
  • EU citizens and their family members will have to apply “within a period of time after exit as specified by the UK authorities,” which will last “around two years” after the UK leaves the EU in March 2019. The new process will be launched before the UK leaves the EU.
  • The authorities will consider exercising discretion to allow a late application if there are good reasons why it could not be made before the deadline.
  • The application fee will not exceed the cost of a British passport, which is currently £72.50 for an adult and £46 for a child.
  • For EU citizens who already have a permanent residence document, there will be a simpler process and a reduced fee.
  • Applicants will need to provide evidence that they were lawfully resident in the UK before the “specified date. (Note: the specified date has not yet been confirmed. It could be any date between March 29, 2017, and March 29, 2019. Most observers believe that it is likely to be March 29, 2019.)
  • Applicants who have not been working will not need to show that they have held comprehensive medical insurance.
  • There will be criminality checks. Criminal conduct up to the date of the UK’s withdrawal from the EU will be assessed in accordance with EU law, which means that an applicant will be disqualified if he or she poses a serious threat to the fundamental interests of society. Criminal conduct after the UK’s withdrawal will be assessed against UK national law. Deportation will be considered if an applicant has received a prison sentence of 12 months or more.
  • EU citizens who meet the conditions for permanent residence under EU law—usually five years’ lawful residence as a worker, self-employed person, student, or self-sufficient person—will be granted settled status.
  • EU citizens who do not meet the conditions for permanent residence but can show that they were living in the UK before the “specified date” will be given temporary status. They will be allowed to stay in the UK until they have built up the five years’ residence needed to apply for settled status.
  • EU citizens who apply for the new status and are refused will be in the UK unlawfully after the end of the “specified period” unless they secure a different type of immigration status. They will not be allowed to work and may be asked to leave the UK.
  • During the “implementation period” after the UK leaves the EU (which is presumably the same as the “specified period“), EU citizens will continue to be able to come and live and work in the UK. There will be a registration system for them.

The document leaves many unanswered questions. For example, what will happen to EU citizens who are not working and cannot provide evidence that they are self-sufficient? What rules will apply to non-EU family members joining EU citizens in the UK after the withdrawal date? If someone is granted settled status but can show that they met the requirements for permanent residence more than one year earlier, will their deemed date of acquisition of settled status be backdated? (This may be important for people who wish to apply for British citizenship.) For EU citizens arriving during the two-year implementation period, what will their status be after the end of the implementation period? And what will happen to other European Economic Area (EEA) nationals (citizens of Norway, Iceland, and Liechtenstein) and Swiss nationals?

It should be remembered that these are just proposals. The negotiations between the EU and the UK are continuing. In the meantime EEA nationals who qualify for a document certifying permanent residence should apply for one now and consider applying for British citizenship.

The technical note is at The June 2017 policy paper referenced above is at More information on Brexit is at

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