EEA nationals and their employers are now turning their minds towards how frequent business/work travellers and cross-border commuters can continue to come to the UK from 2021. For some, the best solution may be offered by the EU Settlement Scheme (EUSS), but there are also other options to consider.
This article is not intended to cover the position for Irish citizens, who will continue to be able to live and work in the UK without restriction under the Common Travel Area arrangements. They may, however, apply under the EUSS if they choose to.
EU Settlement Scheme
The EU Settlement Scheme (EUSS) may be a good option for some European Economic Area and Swiss (‘EEA’) nationals who spend time in the UK for work or business.
It may be relevant for EEA nationals who enter the UK by 31 December 2020. The application should ideally be made as soon as possible after entry, as this minimises the extent of supporting documentation required.
Pre-settled status is valid for five years and only lapses after an absence from the UK of two consecutive years. There are no restrictions on work or study in the UK during the validity of pre-settled status, so this offers more flexibility than most other UK immigration categories.
To become eligible for settled status, a person must normally spend a continuous period of five years in the UK, with no more than six months absence in any 12-month period. There are limited exceptions to this, such as one absence of up to 12 months being allowed for an important reason, such as childbirth, serious illness, vocational training or an overseas posting for work. Absences due to compulsory military service, crown or armed forces service, or accompanying a family member on crown or armed forces service are also ignored.
Even if the person’s pattern of stay in the UK will not allow them to proceed to settlement, pre-settled status could be worthy of serious contemplation for those intending to spend significant time in the UK over the next five years, particularly if their activities in the UK do not fall neatly into another immigration category.
UK immigration applications can be extremely expensive, and another major benefit of the EUSS is that there is no application fee.
Sponsored work visa
The UK will be revamping its immigration categories for work. For EEA nationals and their employers, it will be important to understand which work category is the most suitable to meet their short- and longer-term goals.
Some issues for employers and employees to think about include:
- Obtaining a sponsor licence, or amending an existing one;
- Ensuring that right-to-work checks, as well as record-keeping and reporting duties are being complied with if the employer has a sponsor licence;
- Paying for the immigration process, which will include fees related to a sponsor licence (if one is not already held), certificate of sponsorship, visa application, immigration skills, immigration health, commercial partnership, and legal advice;
- Whether the role meets the relevant skill level for sponsorship;
- Whether the salary on offer is sufficient to qualify for a visa;
- The qualifications and employment history of the applicant;
- The English language ability of the applicant;
- How long the period of work will be;
- Whether the relevant work category offers a path to settlement in the UK if this is a long-term goal.
As an indication of the cost of these visas, sponsoring a single skilled worker for five years where the employer also needs to obtain a sponsor licence can cost between GBP 6,000 and GBP 8,000.
In terms of forward-planning, UK employers who know that they will be recruiting an EEA national in the new year may wish to consider whether to bring the start of their physical work in the UK forward to 2020, or whether it is feasible for the person to enter the UK by 31 December 2020 if they do not already live in the UK. This strategy would be significantly less costly than using a sponsored work option.
Frontier worker document
Under EU law, a frontier worker is a person who works in the frontier zone of an EU member state but returns each day or at least once a week to the frontier zone of an adjacent country where they live and are a national. The UK has a frontier zone with the Republic of Ireland only.
Individuals who are employed or self-employed in the UK as frontier workers before the end of 2020 may be eligible to apply for a frontier worker document, which will enable them to continue to do this from 2021. Details of the qualifying criteria and process are expected to be published on GOV.UK later this year. It is possible that the definition of frontier worker adopted by the UK could include other cross-border workers commuting between the UK and any EEA country, but this will not be known until the policy is published.
Depending on the details of how long a frontier worker document will be available for, and what the criteria are, using this route rather than the EUSS may be more appropriate for some people if it will allow their employment or self-employment to continue for longer than five years in circumstances where a person not would not eligible for settled status under EUSS.
The UK’s visitor visa rules are due to be reviewed with effect from 1 January 2021, but it still will be the case that only limited business or work activities will be allowed. This may still be a suitable option for EEA nationals who only need to come to the UK for occasional business meetings or other short-term business-related activities.
This status cannot however be used to undertake productive work in the UK unless a specific provision allows, for example where a person needs to come to the UK for a month or less at a time for specific permitted paid engagements.
Entry to the UK as a visitor will be free for EEA nationals, however they may need to apply for an electronic travel authorisation (ETA) on a periodic basis for a small charge. The ETA scheme is due to be in place by 2025.
The maximum time that can be spent in the UK as a visitor on any one occasion is six months. A person must not use this route to base themselves in the UK, for example by using frequent or successive visits. They must not work, will have restrictions on study (currently, study is only allowed for up to 30 days) and must not access certain public funds.
There may be other options to consider, depending on how much time a person intends to spend in the UK, the purpose of their intended presence, and their personal circumstances. These may include the Youth Mobility Scheme, representative of an overseas business or family-related categories.
In our experience, it is beneficial to have a detailed initial discussion about what the goals and requirements are for each business and individual, so that short- and longer-term implications of the various options can be explored. The time to do this is now, while travel from the EEA is still relatively straightforward despite the ongoing effects of the COVID-19 pandemic, and while participation in the EUSS still remains an option.
KLIEMT.Arbeitsrecht is a member of Ius Laboris, an international alliance of leading law firms providing specialised services in employment law.