Free movement for EU nationals ended on 1 January 2021. This means EU nationals no longer have an automatic right to live and work in the UK (except for nationals of the Republic of Ireland for whom special rules apply). Instead, they will need to have the correct immigration status to do so, in the same way as for nationals from outside of the EU.
Many businesses are already seeing the impact of these changes in practice and many clients are asking us what this means for business travel into the UK.
Since 1 January 2021, travellers coming to the UK on business need to carefully consider the purpose of each trip to the UK to determine what sort of visa applies. In many cases, they will need a work permit even if they are only staying in the UK for a brief time. The purpose of the trip and what they will be doing whilst in the UK will determine what immigration permission they will need.
Below are a couple of examples from our clients.
CASE STUDY 1
My business has sites in the UK and Spain. Spanish and British nationals have frequently travelled between these two sites as and when needed for business reasons. Typically, these consist of short stays with individuals spending a couple of days in Spain/the UK respectively. Occasionally business trips may last for longer periods. Can my staff continue to travel on business now that free movement for EU nationals has ended?
If the Spanish nationals hold (or are eligible for) Settled or Pre-Settled Status, they can continue to travel to the UK as before so long as their status remains valid and has not lapsed. They can carry out any activities whilst they are in the UK, including working in any capacity.
If they do not hold (or are not eligible for) this status, Spanish nationals travelling to the UK after 1 January 2021 will require a visa. The type of visa and whether they need to apply for it in advance will depend on the activities they will be undertaking for your business whilst in the UK.
In some cases, the employees’ activities may fall within the scope of the “permitted” activities under the “visitor” route. In this case, they can enter the UK as a visitor (and will not need to make a visa application in advance or be sponsored by their employer).
However, if what they will be doing falls outside of these specific allowed activities, and, in particular, if they will be carrying out any “work” in the UK, they will almost certainly require a work permit under the Skilled Worker visa or Intra-Company Transfer visa. This will mean that your business has to sponsor these employees and ensure it has applied for and obtained a sponsorship licence in advance of any travel. The individual will need to secure this visa in advance of coming into the UK. This will be the case, even if the visit only lasts a couple of days; the length of stay is largely irrelevant and is not the deciding factor as to whether a visa is required.
If EU nationals come to the UK as visitors but actually end up working (or doing anything outside of the permitted activities as a visitor), they will be working illegally. Getting this wrong could result in severe penalties for your business. These include specific illegal working penalties – for example, a civil penalty fine of up to £20,000 per illegal worker or even a criminal penalty resulting in an unlimited fine and up to five years in prison. Other potential consequences include ‘naming and shaming’ that could impact your reputation and your ability to win work.
Non-compliance is also likely to result in the revocation of any sponsor licence held by the business and a cooling off period (anything from 12 months to 5 years depending on the circumstances) before you are allowed to reapply for a new licence. This means you will not be able to access the work permit route to recruit non-UK nationals during this time. In addition, any existing sponsored employees will no longer be permitted to work for your business; they will have their visas cut short and will be given 60 days to either find a new sponsor who is willing to employ them or to leave the country.
Depending on the circumstances, individuals who travel in breach of the immigration requirements can also face severe penalties including re-entry bans to the UK of up to 10 years.
Similarly, for outbound travel from the UK to Spain, your business will need to understand the visa rules that apply in Spain to assess whether your British national employees can enter without a formal work permit or not. The purpose of your employees’ visit (for example whether they travelling to Spain to attend a meeting, speak at a conference, negotiate a deal etc. or whether will they be providing services) will be relevant and will likely determine this assessment. You will need to obtain Spanish immigration advice to understand the position.
CASE STUDY 2
My business is based in the UK and, as a result of the COVID-19 pandemic, there has been a major shift in working arrangements, such that most employees want the flexibility to be able to work remotely. One such employee is a Greek national. He recently returned to Greece and has now requested to work remotely, splitting his time between the UK and Greece (and potentially other countries too). He is employed under a British employment contract and his salary/benefits are processed through UK payroll only. As he is very experienced and highly regarded within the organisation, I want to accommodate this request while ensuring we do not fall foul of our obligations from a legal, tax, immigration and social security perspective.
There are a number of issues at play here:
- Immigration: You need to ensure this employee has the correct permission to work in whichever location he is in; a breach of any local right to work requirements may result in penalties.
- Employment law: You need to understand the employment law rights associated with splitting his time between different locations; it is often the case that by virtue of carrying out duties in a different jurisdiction, additional specific employment law protections (such as holiday or notice entitlement) may be triggered.
- Tax: You will need to understand any tax/social security implications of this employee working in different locations.
There are a number of complicated and overlapping legal issues here, so you will need to take specific advice on how they will impact your business. You cannot just assume that because someone is able to work remotely that there are no legal/tax implications of them doing so.
We are helping a number of clients obtain the advice they need to address these tricky issues and to ensure they have a solution to their problems.
By taking action now, you can consider the best options available for your business going forward and you will be well equipped (once we get out of the post-lockdown and Zoom era!) to ensure your business does not fall behind its EU competitors who, unlike them, can continue to travel freely without being subject to any onerous conditions.
If you need support in this area, please get in touch with our Business Immigration team.
