How to have a Happy New Year, and avoid a recruitment hangover - part two

27 Nov 2020

Part two: Sending British Nationals to EU States for business from 2021. Will your UK based employees need a visa?

In part two of our series looking at preparations for the end of free movement on 31 December 2020, we address the issue of sending British nationals to the EU for work.

Throughout the UK’s time as a member state of the European Union, British nationals have enjoyed status as "EU Citizens". With this status comes a right to move freely in and around EU member states to live, work, and conduct business without immigration controls.

However, when the Brexit transition period ends at 11pm (UK time) on 31 December 2020, British nationals will lose their EU citizen status and become "third country nationals" (also known as TCNs). Subject to anything that might be agreed in trade talks between Britain and the EU and to the possibility that the British national might maintain existing rights of residence in a member state in which they already reside at that date, there will be no automatic right to take up employment in another member state. This will create potential friction at the border for any British national seeking entry to a member state for business, and in some circumstances may require them to obtain a work visa in advance.

Visits

The EU has agreed to add the UK to its list of visa-exempt countries post-Brexit. This will give British citizens the right to travel to the EU after 31 December 2020 for up to 90 days within any 180-day period without a visa. It’s worth keeping in mind though that this right is conditional on the UK granting reciprocal visa-free travel to EU citizens coming to the UK.

EU border guards in member states may ask arrivals from the UK for additional information, including the duration and purpose of their stay. Passports must be valid for at least six months after the end of the trip. Visitors will also need to have valid travel insurance.

For visits to the EU on business, the member state destination may well have its own entry requirements, and may require the visitor to provide certain evidence confirming the legitimate purpose and activities intended to be undertaken during their stay. It will be important for employers to plan ahead and take the necessary preparatory steps before sending their British workers on their way.

Employment

The EU does not have a single set of rules governing how third country nationals (i.e. those who are not EU citizens) can establish the right to take up employment within the EU. So each member state is free to adopt its own approach.

As a result, each of the member states will have its own definition of what amounts to “employment” or “work” as opposed to the permitted activities of a business visitor. To provide one example, let’s look at the current position in the Netherlands:

The Netherlands has a concept of “paid employment” which necessitates a residence permit for the individual worker. Depending on the circumstances, the individual may also need a work permit (TWV). The requirements will be informed by which of the various different categories and work types apply. Only an employer can apply for a TWV, and often the employer in the Netherlands will need to obtain formal recognition as a sponsor before it can do so.

That’s just a snap shot of some aspect of one member state’s approach. Lots of detail lies beneath, and the position will be different in each other member state.

What can employers do?

  • Check the nationality of your workforce and whether there will be significant status changes as a result of Brexit. It will be particularly important to identify those whose status will change from an EU Citizen to a third country national (TNC) after 31 December 2020, especially where you intend to send them in to the EU for business or work in 2021;
  • Consider whether any of your British workforce are already living in an EU member state or planning to move to one soon. Will they be eligible to continue living and working there under the provisions agreed in the Brexit Withdrawal Agreement? Should anticipated moves of British nationals in to the EU be brought forward to 2020, with a view to them benefitting from the Brexit transition arrangements? 
  • Plan well ahead in respect of any trips that British nationals will make in to the EU on business in 2021. What are the relevant members states the individual will enter? What will the individual be doing in each of them? What entry clearance/visa requirements, if any, must be secured, and do these require there to be a sponsor employer in the member state?
If you have British nationals who are either already in an EU member state, or that you plan to send to the EU on business in 2021, you can call our immigration team to discuss the implications of the end of free movement, and how best to plan for the future. 

In the next of our “Happy New Year” series, we will be looking at the concept of frontier workers, and the UK’s new frontier worker permit - intended for those whose principal residence is outside of the UK but who regularly cross over the border to work in the UK.

Further reading

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