With less than 2 weeks to go until Frontier Worker Permits become a mandatory requirement, I’m seeing an increasing number of businesses exploring this option for their EU national travellers, particularly those businesses with European branches/operations.
By way of background, non-UK nationals who travel to the UK on business need to make sure they are entering the UK with the correct visa. This will usually be determined by what they are coming to the UK to do and how long they are staying for. Since 1 January 2021, these rules now apply to EU national travellers in the same way as everyone else.
One option is for business travellers to seek entry as “business visitors”. This is particularly attractive for non-visa nationals (such as EU nationals), because they do not need to make a visa application in advance of travelling; instead, permission to enter is granted at the border. In addition, there is no cost with entering in this category.
However, it is important to be aware that only very limited activities are permitted in the UK when entering as a business visitor. On the other hand, the activities which are prohibited are very wide and include “taking employment in the UK” or “doing work for an organisation or business in the UK”. The uncertainties with this route are not helped by the lack of guidance on what is permitted and what is prohibited under the visitor rules, which means it remains one of the most difficult and subjective areas of business immigration to advise on.
In practice, this means that very often the business visitor route may not give individuals the flexibility they need whilst in the UK. For example, individuals are likely to be straying into the prohibited activities if they travel to the UK to perform their role where they hold a Group function, or to manage team members based in the UK, or indeed in most cases where they will be carrying out productive work whilst in the UK. If their activities in the UK go outside of what is permitted under the business visitor rules, this would amount to illegal working in the UK. Any risk of illegal working exposes both the business and the individual traveller to significant compliance penalties.
For the business, this includes potentially substantial fines and the loss of any sponsor licence. This would mean the inability to recruit any non-UK nationals until they had successfully reapplied for a new licence (and typically there is a 12 month cooling off period on doing this), and the fact that any existing sponsored migrants would have their leave cut short. Their leave would usually be shortened to 60 days during which they would either need to leave the UK or find another sponsor to employ them. This is the case for all sponsored migrants, no matter how senior. A finding of illegal working also carries the risk of reputational damage and the danger of wider Home Office inspections, along with inspection from other Government agencies such as HMRC. Clearly these implications could be catastrophic to the business.
Individual managers who are aware of practices which they know or have reasonable cause to believe amount to illegal working, including HR managers, could face personal prosecution and a prison sentence of up to five years.
For the individual traveller, they could be refused entry or even forcibly removed from the UK if they are working illegally, both of which would have adverse consequences on future immigration applications. In the worst case scenario, if the individual is found to have entered the UK using deception, they will be subjected to a 10 year ban on coming back to the UK.
Even entirely legitimate business travellers may find that this route is fraught with difficulty. In my experience, frequent travellers will often attract the attention of UK border officials and may face being stopped, detained and questioned by them. As we move into a period of increased enforcement post-Brexit, stories of EU citizens facing these sorts of issues (which have just started to circulate in the mainstream media) are likely to become increasingly common.
So, if the business visitor route is not appropriate because of the proposed activities being carried out in the UK, or carries too much risk given the consequences of getting it wrong, or is simply too uncertain given the wide power of border officials to assess individual travellers on entry, what is the alternative?
One option is obviously employer sponsorship. However, given the costs involved and the compliance obligations of sponsoring an individual, this is an option that many organisations would prefer to avoid if possible. There may also be particular difficulties with meeting the requisite skill or salary thresholds depending on the role, demonstrating the necessary English language skills (for the Skilled Worker route) or the appropriate period of service with a group company (for the Intra Company Transfer route). My clients are finding that the English language test requirements are proving particularly difficult to meet at the moment due to a lack of English testing availability with many sites being closed as a result of the current COVID restrictions.
For EEA/Swiss nationals there is another option which is worth considering, namely the Frontier Worker Permit. This was introduced to protect the rights of EEA/Swiss nationals who come into the UK for work but who live elsewhere, so long as the working pattern was established before the Brexit cut-off of 31 December 2020.
Frontier Worker Permit holders are allowed to enter the UK to perform productive work for any UK organisation whether on an employed or self-employed basis (which means this permit does not have the same restrictions as the business visitor route). In addition, there are no minimum skill level requirements or salary thresholds that must be met, and no requirement for employer sponsorship, which means the employer does not need to hold a sponsor licence. The application is also free, which means that the large fees associated with employer sponsorship are avoided.
Once granted, the individual will have the ability to continue coming to the UK for work for five years (although in some cases a two year permit is awarded).
If eligible, this visa provides a great option for EU nationals to obtain a secure status and avoid any of the challenges or ambiguities associated with entering as a visitor. I am advising a number of clients across a whole host of sectors on how they can best use this visa for their EU national workforce to try and limit some of the impact that the end of free movement is having on them.
Frontier Worker Permits become mandatory from 1 July 2021, so I would recommend that anyone who is eligible should make their application as soon as possible to avoid business disruption or delays in travel arrangements.
Advising on these issues often falls to HR managers or compliance teams, however, it’s worth noting that giving immigration advice in the UK is a regulated activity. This means that anyone who provides immigration advice who is not regulated to do so is potentially committing a criminal offence and could land themselves in prison. So, it’s important that HR and other managers are cautious about what they say to their staff on immigration issues and don’t provide advice on the subject.
Please get in touch with us if you would like advice on understanding the immigration restrictions faced by non-UK national business travellers, or would like assistance with employer sponsorship, entering as a business visitor or with making Frontier Worker Permit applications. We can help you make sense of these new compliance requirements and find the best solutions for your organisation.
