Freedom of movement ended at 11 pm on 31 December 2020. Any EU, EEA, or Swiss citizens (and their families) who did not arrive in the UK before then will now be subject to immigration control. Here, Alice Williams clarifies issues commonly faced by businesses, using a hypothetical case study.
The Spanish national may be eligible for the EU Settlement Scheme.
EU, EEA or Swiss citizens who were residents in the UK before the end of 2020 are eligible to apply for the EU Settlement Scheme unless they already have a right to work in the UK (such as British citizenship or Indefinite Leave to Remain). To apply, they will need proof of their identity (for example, a passport) and residence in the UK (this will usually be a National Insurance number).
Periods outside the UK will not prevent a successful application to the scheme, so long as the applicant has not left the UK for more than 6 months in any 12-month period (although this time frame is extended where someone has been absent for an important reason such as childbirth, serious illness, study, vocational training, or an overseas work posting).
If successful, the applicant will be granted either settled status (if the applicant has been living in the UK for a continuous 5-year period as at the date of the application) or pre-settled status (where they do not have 5 years continuous residence).
Those with pre-settled status must apply to upgrade to settled status, once they have had pre-settled status for 5 years (or have 5 years’ continuous residence). This will allow EU citizens to live and work in the UK for an indefinite period. However, status can be lost if the EU citizen spends up to 2 years in a row (for pre-settled status) or 4-5 years in a row (for settled status) outside the UK.
As above, Company X can continue to rely on the Spanish national’s passport/ID card as evidence of a valid right to work until 1 July 2021. However, the Spanish national will need to apply for the EU Settlement Scheme to continue to have the right to live and work in the UK beyond this date. Applications for the scheme must be made by 30 June 2021.
The Spanish national will not be eligible for the EU Settlement Scheme as he will not be able to show proof of continuous residence in the UK, but he may be eligible for a Frontier Worker permit.
A Frontier Worker is an EU, EEA, or Swiss citizen who lives outside the UK but has worked in the UK by 31 December 2020. Eligibility will depend on the length of time spent outside the UK (less than 180 days in total over any 12-month period or returning to the country of residence once every 6 months or twice every 12 months) and working in the UK (at least once every 12 months since starting to work in the UK). There are some exceptions to this.
If successful, this will allow the frontier worker to continue to travel to the UK to work. The Spanish national can continue working in the UK up to 30 June 2021 but if they want to continue working in the UK after this date, they will need a permit.
Applications for a Frontier Worker permit must be made by 30 June 2021.
EU citizens who arrived in the UK after 11 pm 31 December 2020 will not have access to the EU Settlement Scheme or a Frontier Worker permit and must therefore rely on other means to live and/or work in the UK lawfully.
The Spanish national may be able to travel to the UK and deliver training as a visitor.
Another option for EU citizens who are coming to the UK for short periods of time, but who will not be employed by a UK employer, is the visitor route.
EU citizens can visit the UK for up to 6 months and undertake certain business and work activities. Permitted activities cannot amount to employment or act as short-term cover for the UK company. Business activities can include attending meetings, negotiating deals and carrying out site visits. If an employee is coming to the UK from a company in the same corporate group, activities can include providing training, advising, and consulting, and sharing skills and knowledge. The full list of permitted activities can be found here.
As an EU national, the Spanish individual would not need a formal business visitor visa, but it is a good idea to get one to reduce time and questions at the border.
The employee of the Spanish manufacturer may be able to rely on the visitor route via the permitted activity of ‘Manufacture and supply of goods to the UK’.
This allows “an employee of a foreign manufacturer or supplier” to “install, dismantle, repair, service or advise on equipment, computer software or hardware, where the manufacturer or supplier has a contract of purchase or supply of lease with a UK company or organisation.”
It is worth noting that each of the permitted activities will be assessed on a case-by-case basis and are subject to differing rules. For example, for this permitted activity, the expected length of stay is one month despite the general rule of 6 months for visitors. Although a longer stay will not be an absolute bar, their visit will likely be subject to closer scrutiny and visits could be refused.
The employee may be eligible for a visa under the points-based immigration system.
If EU citizens intending to work in the UK are not eligible for the EU Settlement Scheme or the Frontier Worker permit (for example, because they arrived in the UK after 11 pm 31 December 2021 and have no recent history in the UK), a business may be able to sponsor them as a Skilled Worker or under the Intra-Company transfer route. Further details on sponsorship are in our blog on global mobility which can be found here and our podcasts with Satinder Gill at Five Paper on frequently asked questions here.
To be eligible to be sponsored via one of these routes, the EU citizen would need to be an employee (or future employee) of a registered sponsor, the job must meet a minimum skill and salary level for the occupation code and the individual would need to satisfy the English language (for a Skilled Worker visa) and maintenance requirements.
If the Spanish national is not an employee or worker of Company X, there is no direct responsibility for ensuring a right to work on Company X. However, it is worth noting that the Home Office does have the power to look beyond the contract to determine employment status, so businesses should take care before simply relying on its own interpretation of the working relationship. Regardless of employment status, there is also the risk of criminal liability for facilitating a breach of immigration law if Company X knowingly or has reasonable cause to believe that individuals do not have the right to work, but engages them anyway.
If the Spanish national is considered an employee or worker of Company X, this can lead to both criminal and civil penalties for Company X if illegal working is discovered. A civil penalty can be avoided by conducting a proper right to work check which would give Company X a statutory excuse against civil liability.
Other potential consequences of illegal working include: reputational damage, impacting on any current or future sponsor licence, insurance implications, and operational issues. Individuals who are found to be illegally working can also face criminal charges.
Given the complex nature of this area now that the transition period has ended and EU citizens can no longer simply travel to the UK to work, we recommend that you seek legal advice if you are intending to engage/employ EU citizens.
On 12 May (9-10 am), we’re hosting a webinar to discuss the EU Settlement Scheme in more detail and what you, as a business, can be doing to prepare for 1 July 2021. To join us, all you need to do is register here.