· 2 min read · Comment

Business visas - an illegal working risk for 2022?

Published:

As we move into a new year with less restrictions on travel and the loss of free movement post Brexit, UK employers should be vigilant of the risk that business visitors pose from an illegal working perspective in 2022. 

Business visitors are individuals entering the UK to undertake certain permissible activities such as attending pre-arranged meetings, conducting site visits or being briefed on the requirements of a UK-based customer. They are not permitted to take employment in the UK. 


Supporting international business travel:

Protecting and supporting travelling teams after COVID

How to navigate business trips to and from EEA countries

How HR can improve LGBT+ employees' access to international assignments

Can EU nationals continue frontier working post-Brexit?


As a result of Brexit, UK business visitor rules now apply to EU and non-EU nationals alike, meaning individuals can enter the UK for business purposes for up to six months at a time, and in the instance of EU and other non-visa nationals, without a prior application.  

There were one million business visas approved in 2020 (not including those we do not need a visa before travelling like EU nationals), 69% down on 2019. As the world slowly becomes more confident with international travel and we see global workforces mobilise back to pre-pandemic volumes, the number of business visitors will increase exponentially.

The business visitor population has always been hard to track and is typically constituted of senior individuals travelling independently on short notice. With the anticipated volume increase and rise in EU nationals who can travel in this capacity without prior application, this cohort of employees will become an increasingly challenging compliance risk.

Remote working poses the greatest risk of all. A business visitor checking their emails or taking the occasional work call could be considered incidental to a person's visit to the UK, whilst an individual undertaking their role overseas remotely from the UK may actually require a visa under the points based system which allows for work.

If a visitor enters the UK and undertakes activities outside of those which are permissible for the route, they could be exposing themselves to an illegal working offence, and their employer to civil penalties of up to £20,000 per worker, alongside unquantifiable reputational damage if the business’s details are published by Immigration Enforcement online.

The same applies for business visits of UK nationals to Europe.  Business activities in the EU are permissible without a visa but most activities will require work authorisation. There is also a limit of 90 on any 180 days in the Schengen area (without border control).

The differing rules and the management and tracking for each employee make this a challenging task for employees.

To mitigate this risk, employers should familiarise themselves with the business visitor rules both in the UK and in countries of frequent travel and raise awareness of the pitfalls amongst staff. Depending on the frequency and duration of the trips business travel may also give rise to wider tax, employment law and data protection considerations which should also be front of mind.  

We recommend conducting a full assessment of the activities their business traveller population intend to undertake in advance of them coming to the UK and preparing them for questioning at the border.

Where employers are unsure, they should seek legal advice in sufficient time in advance of business travel to ensure they are taking the most compliant route for the activity which needs to take place on UK soil.

Often there are other more suitable visa options available to remove the ambiguity around what is permitted and provide a longer term solution to the business’s needs. 

 

Louisa Cole is principal associate at Eversheds Sutherland