While both the EEA and the UK currently provide “visa-free travel” for short-term visits under the Brexit deal, short-term business trips are now subject to local immigration rules. Shabana Muneer, Director in the Employment team and Head of Business Immigration at leading law firm, Walker Morris LLP, maps out the new landscape and what businesses can do to avoid trouble.
Walker Morris LLP is ranked by independent assessors among the top UK law firms for the number of recognised legal specialists in its teams. Walker Morris LLP has a dedicated Business Immigration Team with experts in this area who have first-hand experience of helping employers navigate complex processes relating to Brexit and UK immigration rules.
Business immigration and the movement of staff across borders have never been so relevant to so many UK businesses following the end of entirely free movement for UK nationals to the European Economic Area (EEA) and in the other direction.
The end of the Brexit transition period last year means that employers who have never needed to familiarise themselves with immigration requirements or engage with border authorities may well have to do so in the future – and this is likely to include short-term business trips or transfers within companies.
The implications extend to EEA-based companies sending staff to the UK, as well as pan-European organisations who want their people to work together across various locations. The ease with which they have always done so may well be a thing of the past.
So what are the new visitor rules for EEA nationals?
Staff travelling from the UK to the EEA
The Trade and Co-operation Agreement between the EU and the UK allows UK nationals to spend a maximum of 90 out of 180 days in the Schengen area (26 European countries without border controls between them, including Austria, Belgium, France, and Germany) without a visa requirement, including for permitted business purposes such as attending business meetings.
This introduces a new restriction on the amount of travel permitted without immigration controls that most people of working age haven’t known before. Beyond that, other activities, such as transferring employment to a different branch of the business in an EEA country, or carrying out activities that amount to constructive work, will now likely require a visa or work permit – and the rules will differ depending on the country in question. The position is far from straightforward and UK businesses may need to take local legal advice prior to arranging business trips. The UK Government has also issued guidance on business travel to the EEA and Switzerland, which may be a useful first point of call when planning trips.
From late 2022, UK nationals will need a visa waiver in the form of an online European Travel Information and Authorisation System application prior to travel to the Schengen area.
Staff travelling from the EEA to the UK
The UK’s visitor rules allow visits for certain specified business activities for up to six months. Permitted activities include attending meetings, conferences, seminars and interviews, negotiating and signing deals and contracts, carrying out site visits and inspections and being briefed on the requirements of a UK-based customer, provided any work for the customer is done outside the UK.
There are specific provisions for intra-corporate activities which allow an employee of an overseas company to advise and consult, troubleshoot, provide training, and share skills and knowledge on a specific internal project with UK employees of the same corporate group – provided no work is carried out directly with clients. In addition, an employee of a foreign manufacturer may install or service equipment purchased from the manufacturer by a UK company, provided that a contract of purchase or lease is in place between the parties.
The UK has treated EEA citizens as “non-visa” nationals from 1st January 2021, which means that there is no requirement for them to apply for an advance visit visa before travelling here.
However, whereas EEA nationals could previously enter the country for any business or work purpose without question, they may now have to satisfy border officials that their visit is for a permitted reason. While it remains to be seen how the Home Office will manage this in practice, given that most EEA nationals will continue to use e-Gates to come into the UK (albeit their use may be restricted due to current COVID checks on entry), under the visitor rules individuals can be required to show border officials that they are entering to undertake permitted activities and will otherwise comply with the visitor rules. It is likely that once the deadline has passed for eligible EEA nationals (namely those who were already in the UK by 31st December 2020) to make residence applications under the EU Settlement Scheme on 30th June 2021, border checks for EEA nationals will become more stringent.
Business visitors from the EEA are therefore now advised to carry with them certain supporting documents when they seek entry clearance at the UK border, such as a letter from their employer which confirms the details of their overseas employment and the purpose of their visit, financial information in the form of payslips/bank statements to show they can financially support themselves, and a return ticket to their home country to evidence their intention to leave the UK after their six-month visa period expires.
They should also be prepared to answer questions consistently with the information provided in the supporting letter, detailing the activities they intend to carry out during their visit. Border officials could refuse entry under the visitor rules if they are not satisfied that the activities fall within the permitted list or the individual does not meet the visitor requirements.
Staff being moved from an EEA (or non-EEA) group company to work in the UK outside the parameters of the short-term visit visas will normally require sponsorship under the points-based system, generally under the Skilled Worker route or the Intra-Company transfer route depending on the circumstances.
Another category of staff that UK businesses will have to identify are EEA nationals who live in the EEA but come to the UK for work occasionally, for instance, a French national who makes a weekly trip into a London office. Whilst such arrangements were unrestricted from an immigration perspective pre-Brexit, from 1st July 2021 EEA nationals who fall within the frontier worker category and meet the eligibility requirements will need to hold a frontier worker permit to enter the UK under this type of arrangement (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.
Top tips to navigate the new rules
The fundamental change always to bear in mind is that the former visa-free, restriction-free travel between the UK and EEA has now ended, certainly for the foreseeable future. It is now subject to intrusive immigration rules and regulations and will require careful planning and thought.
There are a number of preparations/checks that all businesses wishing their employees to continue to make business trips to and/or host visitors from EAA nations and other countries should consider:
- Familiarise yourself with the specific rules that each EEA country has imposed on short-term business trips, transferring employment across borders to different parts of the organisation, and on constructive work. The rules differ between different EEA countries, so ensure that you can meet these requirements for every trip, to each territory, whatever its duration. Seek legal advice if necessary.
- Ensure that staff travelling on business not only do so within the permitted rules for work trips and have all necessary documentation on them but are sufficiently well briefed to be able to articulate to border staff that their purpose is legitimate if quizzed.
- If you are likely to require workers to come to your UK establishment(s) as business visitors from the EEA or beyond, ensure that you know how to support the individuals to successfully gain entry into the UK.
- Audit workforces to identify EEA nationals in the UK who may need to hold a frontier worker permit to continue to enter the country under existing work arrangements and ensure that applications are made in plenty of time ahead of any travel from 1st
- If you are intending to send UK staff to EEA group companies soon, establish whether the purpose of their visits fall within the short-term visitor rules or whether other immigration permissions may be required (which may involve more complex and lengthy applications).
- If sponsorship of EEA nationals by the UK business is likely to be required in the future, think about making an application for a sponsor licence now – it can take some time for the application to be prepared and then turned around by the Home Office, which may result in delays when personnel are required in the UK if the licence is not already in hand.
- Look out for and acquaint yourself with further announcements from the Home Office, EAA and EU on this area. Rules might change, for either greater ease or more friction, depending on subsequent deals and political developments. Also ensure travelling staff are advised on current local COVID-related travel restrictions and requirements.
A well-established legal practice’s Employment team should have practitioners with specific knowledge of business travel and UK business immigration requirements. They can advise on all up-to-date considerations, ensuring that flow remains as smooth as possible post-Brexit.
Before appointing a team, seek independent recommendations on its track record.