Can EU nationals continue frontier working post-Brexit?
As the dust from Brexit has settled, attention has turned to what this means for cross-border workers in the UK.
Cross-border, or frontier workers, are people working in one country but living primarily in another, for instance a German national working for a multinational who shares their time between Berlin and London. Free movement enabled this working pattern to grow within the UK, helped along by cheap travel and remote working technology.
Frontier workers who worked at least once in the 12 months ending 31 December 2020 are specifically protected by the Brexit Withdrawal Agreement. As a signatory to this, the UK government was obligated to secure the rights of frontier workers. It has therefore created the frontier worker permit scheme to enable cross-border workers to continue to work in the UK in the long term.
The scheme opened on 10 December 2020. There is no deadline to apply, but importantly, a frontier worker must hold a frontier worker permit to enter the UK for work after 30 June 2021.
So how does this scheme work? Firstly, it has a limited scope. It only applies to EEA or Swiss nationals who started frontier working in the UK by 31 December 2020, and who continue to do so at least once every 12 months, starting from their first period of UK work in 2020.
An applicant will need to show that they are not ‘primarily resident’ in the UK to qualify for a permit. This has been defined very broadly; at any particular point in time, the person must show that either they have been in the UK for less than 180 days in any 12-month period or have returned to their home country either once in the last six months or twice in the last 12 months.
More on working in the after Brexit:
Frontier workers who have been unable to travel to or from the UK due to the pandemic should not be unduly concerned. The Home Office will be flexible on the residence requirement for reasons relating to this.
The person can either be employed or self-employed. An employee does not require an employment contract in the UK; an ‘agreement’ that the person is required to carry out tasks for a UK entity will suffice, as long as they receive some form of remuneration.
The scheme has a very broad definition of what constitutes work. The guidance states that the work activities in the UK must be ‘genuine and effective’ but not ‘marginal and ancillary’. While we know that visitor-related activities, such as attending meetings, will not constitute ‘work’, the Home Office will assess each case on its merits meaning a whole host of activities could qualify for a permit.
The application is free of charge and is made online. If successful, the permit is normally granted for five years, allowing the individual to travel in and out of the UK freely for work purposes. A person will retain and can renew the permit provided they continue to meet the definition of a frontier worker.
The frontier worker permit certainly looks a great option for those who come within its remit. The rules are flexible enough that they can cover a whole host of working patterns and the permit will provide long-term security for those individuals whose business activities in the UK go beyond what a visitor can do.
With 1 July 2021 just around the corner, HR teams should take steps to identify those staff members or freelancers they have in the UK who could benefit from it, so they have the opportunity to have their status recognised by the time they are next due to travel to the UK.
Joanna Hunt is managing associate, business immigration at Lewis Silkin