On 22nd January, the Home Office published a UK Transition bulletin, drawing attention, amongst other issues, to new rules for business travellers following the UK’s exit from the EU. There is often confusion about the permitted activities that business visitors to the UK may undertake.
Under the UK Immigration Rules, overseas nationals are permitted to visit the UK for a short term period of up to 6 months, but they are only allowed to undertake certain specified business activities whilst they are here. They cannot work whilst they are in the UK, even for a short period of time. The permitted activities are set out in Appendix V to the Immigration Rules and they include:
Activities falling outside this scope are likely to require sponsorship. Visitors are expressly not permitted to take employment, undertake work for an organisation or business, undertake a work placement or internship, sell goods to the public or provide goods and services. This means that visitors are not allowed to provide short-term cover for a role in the UK. No direct work with clients is permitted. Visitors are not permitted to receive payment from a UK source for any activities undertaken whilst in the UK, other than reasonable expenses.
Considerations for businesses post Brexit:
Following Brexit, businesses need to think about additional immigration requirements when moving staff between the UK and the EU. A key factor is knowing how to support individuals to ensure that they can gain entry to the UK successfully. EU nationals could previously enter the UK for any business or work without question, and they could stay for as long as they were required. Now, they will need to satisfy the immigration officers that the purpose of their trip falls within the business visitor rules. We would advise business visitors to carry with them documentation to ensure that they are able to enter the UK without issue, for example a letter from a UK company confirming the purpose of their trip.
Businesses also need to consider whether their employees in the UK will need to travel to Europe for business purposes. If so, it is necessary to review the immigration requirements for the particular country they will be travelling to.
Frontier Worker Permits
A new type of immigration permission:
From 1 July 2021 EEA nationals who live outside the UK but who have been coming to the UK regularly for work will require a new type of immigration permission called a “Frontier Worker permit”. One example would be a French national employed by a multinational company who makes a weekly trip to a London office. Frontier worker permits can only be applied for if the EEA national worked in the UK before 31st December 2020 and has kept working here at least once every 12 months. The purpose of the scheme is to protect the position of frontier workers who began working in the UK before 31st December 2020, under the provisions of the Brexit Withdrawal Agreement.
These permits can be used to the enter the UK as a frontier worker and show the individual’s right to work. EEA nationals who wish to work in the UK from 1st January 2021 and were not working here before, will require sponsorship under the new points based system.
Considerations for businesses:
Businesses should consider this as an option for EEA nationals who have previously been coming to the UK for short periods to work. These individuals cannot enter the UK as business visitors, as their activities will almost certainly fall outside the scope of the business visitor rules. Applications can be submitted now for frontier worker permits. Whilst it is not a requirement to have the permit until 1st July 2021, if you have anyone who falls within this category, it would be advisable to apply now so that they do not face additional questions on entry to the UK.
Right to Work Checks for EEA Nationals
EEA nationals who have been residing in the UK prior to 31st December 2020 are eligible to apply under the EU Settlement Scheme (EU SS) which confirms their right to continue to live and work in the UK. The application must be submitted before 30th June 2021. Home Office guidance states that at the moment employers must not ask employees about their status under the EU SS.
This means that there is currently no change to the right to work checks for EEA nationals who start work between 1st January 2021 and 30th June 2021. There is also no change to the checks required for family members of EEA nationals. Guidance has not yet been released by the Home Office in relation to its policy on right to work checks from 1st July 2021.
Risk of discrimination:
An important point to note is that if an employer questions the status or an employee or potential recruit, it could lead to claims of discrimination on the basis of their nationality. EEA nationals can present their European passport or national identity card as proof of their eligibility to work in the UK until 30th June 2021. It is only after this date that they will need to be able to prove that they have been granted settled status under the EU SS, or that they have an application in progress. After 30th June, if the employee has not submitted an application under the scheme, their employment must be terminated as they will no longer have the right to work in the UK.
There is no guidance from the Home Office on the position of employers where an EEA national does not in fact have the right to work, for example if they arrived in the UK after 31st December 2020 as a visitor. If this subsequently came to light, their employment would need to be terminated, or the employer would face prosecution for knowingly employing, or having reasonable cause to believe, that they are employing an illegal worker.