The end of the Brexit transition period means that employers who never needed to worry about immigration requirements or engage with border authorities may well have to do so in the future – and it will probably include short-term business trips or transfers
within companies.
This affects EEA-based companies sending staff here, plus pan-European organisations who want their people to work together across various locations.
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Staff travelling from the UK into the EEA
UK nationals can spend a maximum of 90 out of 180 days in the Schengen Area (26 European countries with no border controls, including Austria, Belgium, France and Germany) without a visa, including for permitted work purposes like business meetings.
The post-Brexit situation introduces restrictions on the amount of travel permitted without immigration controls most people 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 which amount to constructive work, will now probably require a visa or work permit, with rules differing for each country.
The position is complex and businesses may need to take local legal advice before arranging trips. Government guidance on business travel to the EEA and Switzerland may be useful when planning them.
From late 2022, UK nationals will need a visa waiver, an online European Travel Information and Authorisation System application before visiting Schengen states.
Staff travelling from the EEA to the UK
UK visitor rules allow trips for certain specified business activities for up to six months. They include attending meetings, conferences, seminars and interviews, negotiating and signing deals and contracts, carrying out site visits and inspections and briefings on a UK-based customer’s requirements, provided any work for the customer is done outside the UK.
Specific provisions for intra-corporate activities allow an overseas company’s employees to advise, consult, troubleshoot, provide training and share knowledge on a specific internal project with UK employees of the same group provided no direct client work is undertaken.
Britain now treats EEA citizens as ‘non-visa’ nationals, meaning there is no requirement for them to apply for an advance visit visa before travelling here.
However, they may now have to satisfy border officials that their visit is for a permitted reason. How this will work in practice – given that most EEA nationals will continue to use e-Gates for entry – is not known. Under visitor rules, individuals can be asked to show border officials they intend to undertake permitted activities and will otherwise comply with all regulations.
It is likely that once the deadline has passed for eligible people (those already here by 31 December 2020) to make residence applications under the EU Settlement Scheme on 30 June 2021, border checks for EEA nationals will become more stringent.
Business visitors from the EEA should therefore carry certain supporting documents when they wish to cross the UK border. This can be a letter from their employer confirming their overseas employment and the purpose of their visit, financial information such as pay slips or bank statements to show they can financially support themselves and a return ticket home to prove their intention to leave the UK after their visa period expires.
They should also be prepared to answer questions consistently with the information provided in the supporting letter, or risk being denied entry.
Staff moving from an EEA/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 (either under the Skilled Worker route or the Intra-Company transfer one, depending on circumstances).
UK businesses must also identify EEA resident nationals who come here for work occasionally. From 1 July 2021, EEA nationals who fall within the frontier worker category and meet the eligibility requirements must hold a frontier worker permit to enter (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.
HR professionals struggling with the new rules should seek guidance from an established employment lawyer.
Shabana Muneer is director of employment at Walker Morris
This piece appears in the May/June 2021 issue of HR magazine. Subscribe now to get all the latest issues delivered to your desk.
