Following the end of the Brexit transition period at the beginning of this year, employers who haven’t needed to worry about immigration requirements or engaging with border authorities before may now have to do so, including for seemingly straightforward journeys such as short-term business trips or transfers between companies.
Whilst business trips have largely been put on hold over the past year as a result of Covid-19 travel restrictions and quarantine rules, we will likely see an increase in these kinds of trips as restrictions ease, so companies must ensure they are prepared.
The UK’s new immigration system now applies equally to citizens of EEA (and Switzerland) and non-EEA countries alike (with the exception of Irish citizens who may still live and work freely in the UK). Similarly, UK nationals are now subject to the immigration rules of EEA countries.
So, what are the new visitor rules?
Staff travelling UK to EEA
Without a visa, UK nationals can spend a maximum of 90 out of 180 days in the Schengen area (26 European countries with no border controls, including Austria, Belgium, France and Germany), which includes travel for permitted work purposes, like business meetings.
This restriction on the amount of travel permitted without immigration controls is something that most UK nationals haven’t experienced before. Beyond that, other activities (such as transferring employment to a different branch of the business in an EEA country, or carrying out activities which amount to substantive work) are now likely to require a visa or work permit. However, these rules may differ slightly for each country.
The position is complex and so businesses may need to take local legal advice before arranging trips to ensure they are in line with local regulations and immigration rules. There is government guidance available on business travel to the EEA and Switzerland, which may be useful when planning work trips.
From late 2022, UK nationals will also need a visa waiver in the form of an online European Travel Information and Authorisation System application before visiting Schengen states.
Staff travelling EEA to UK
Currently, UK visitor rules allow trips for certain specified business activities for up to six months. This includes attending meetings, conferences, seminars and interviews; negotiating and signing deals and contracts; carrying out site visits and inspections; and briefings on a UK-based customer’s requirements – provided any work for the customer is done outside the UK.
There are also specific provisions for intra-corporate activities that allow an overseas company’s employees to advise, consult, troubleshoot, provide training and share knowledge on a specific internal project with UK employees of the same group – as long as no direct client work is undertaken. Also, a foreign manufacturer’s employees may install or service equipment purchased by a UK company, provided there is a contract of purchase, supply or lease in place.
Britain now treats EEA citizens as “non-visa” nationals, meaning there is no requirement for them to apply for an advance visit visa before travelling here. However, they may now have to satisfy border officials that their visit is for a permitted reason. How this will work in practice (given that most EEA nationals will continue to use e-Gates for entry, albeit their use is currently restricted due to Covid checks) is not known, but under the visitor rules, individuals can be required to demonstrate to border officials that they intend to undertake permitted activities and will otherwise comply with all regulations.
Once the deadline has passed on 30 June 2021 for eligible EEA nationals (i.e., those already here by 31 December 2020) to make residence applications under the EU Settlement Scheme, it is expected that border checks for EEA nationals will become more stringent.
Business visitors from the EEA should therefore carry certain supporting documents when they seek entry clearance at the UK border. Evidence can include: a letter from their employer confirming their overseas employment and the purpose of their visit; financial information such as pay slips or bank statements to show they can financially support themselves; and a return ticket home to prove their intention to leave the UK after their six-month visa period expires. They should also be prepared to answer questions consistently based on the information provided in the supporting letter, or risk being denied entry.
Staff moving from an overseas group company to work in the UK outside the parameters of the short-term visit rules will normally require sponsorship under the points-based system (either under the Skilled Worker route or via Intra-Company transfer, depending on circumstances).
Frontier workers
Under the new rules, UK businesses should also identify EEA resident nationals who come here for work occasionally, e.g., a French citizen who travels to a London office weekly, now known as ‘Frontier Workers’. From 1 July 2021, EEA nationals who fall within the frontier worker category and meet the eligibility requirements must hold a permit to enter the UK (unless they are eligible for and make a successful application under the EU Settlement Scheme). The application process for frontier worker permits has been open since December 2020 and is free of charge.
Top tips to navigate the new rules
Most importantly, the former visa-free, restriction-free travel between the UK and EEA has now ended. Such travel is now subject to strict immigration rules and regulations and will require careful planning and thought. There are a number of points that all UK businesses wishing their employees to continue to make business trips to and/or to host visitors from EEA nations and other countries should consider:
- Familiarise yourself with the specific, varied rules that each EEA country imposes on short-term business trips, transferring employment across borders to different parts of the organisation and on substantive work. Seek legal advice if necessary.
- Ensure that staff not only travel within permitted rules for work trips and have all necessary documentation on them, but that they can articulate to border staff how their purpose for visiting the UK is legitimate.
- If you are likely to require workers to come to your UK establishment(s) as business visitors from the EEA or beyond, ensure you know how to support their entry.
- Identify EEA nationals in the UK who may need a frontier worker permit to continue to come here under existing work arrangements and assist them in making applications in plenty of time ahead of travel from 1 July 2021.
- If you want to send UK staff to EEA group companies soon, establish whether the purpose of their trips falls within the short-term visitor rules or whether other immigration permissions are required (these may have more complex, lengthy applications).
- If future sponsorship of EEA nationals by the UK business is anticipated, consider applying for a sponsor licence now – it can take some time.
- Ensure business travellers are familiar with up to date Covid-related travel restrictions and requirements applicable in the country of travel.
- Stay abreast of further Home Office, EEA and EU announcements.
A well-established legal practice’s Employment team can advise on all up-to-date considerations, for as-smooth-as-possible a flow of staff, post-Brexit.
