The UK-EU Trade and Cooperation Agreement (“TCA”) came into full force on 1 May 2021 having been implemented on 1 January 2021. It lays the foundation for the UK and EU economic partnership. A stated aim is to give reciprocal access to the EU/UK markets. The TCA has to interact with the UK’s own post-Brexit Immigration Rules which control EU nationals’ access to the UK to work.
While some of the TCA's provisions in relation to services are welcome, they fall far short of free movement of services and labour under the EU single market which UK clients and EU service providers previously enjoyed. The new arrangements have the potential to involve significant additional cost and effort, but there are some key provisions that could cut through the complexity and make moving EU workers to the UK to deliver on projects much easier. Set out below are some of the key complexities and opportunities that UK based clients and EU based service providers should consider.
Business Visitors for establishment purposes
Under the TCA, an EU national seeking to establish a business in the UK may enter and stay for a period of up to 90 days over a six month period without the need for a work permit. To qualify a person must work in a senior position in a company established in the EU and be responsible for setting up an enterprise.
Under the UK Immigration Rules a longer visa may be acquired (initial grant two years) as a representative of an overseas business, for example where 90 days is insufficient.
Short-term business visitors
Short term business visitors from the EU can visit the UK for a single period of up to six months. This UK provision exceeds the minimum period agreed by the reciprocal arrangements under the TCA. However, longer visits of several weeks are at higher risk of scrutiny to ensure that only permitted activities are being carried out. Repeat visits may also be scrutinised to determine whether an individual is seeking to make the UK their home or place of work in contravention of the Immigration Rules.
Short-term business visitors are allowed to carry out certain, permitted activities (PA). The list of activities which are permitted is generally not well understood and whilst they are generally quite limited and do not permit the taking up of employment or self-employment, there are permitted activities of potentially high relevance and value to the EU provider of services in the UK.
The permitted activities currently allow visits for the purposes of, for example, attending meetings and consultations, negotiating contracts, undertaking market research or receipt of (but generally not delivery of) training. Subject to some important exceptions, they do not cover the performance of a role to be carried out by the business visitor in the UK. So where, for example, a contract has been concluded by an EU business visitor travelling to meet the customer in the UK, the default expectation would be that the contract would actually be performed by staff back in the EU.
The provision of PA7 is potentially the most useful for short term work as the employee of an EU contractual manufacturer/supplier of equipment. An employee of an overseas company may carry out specific work to include installing, repairing, dismantling, servicing of machinery or equipment.
The key is that there needs to be a contract of purchase, supply or lease with a UK customer. The overseas company must either be the manufacturer or supplier of the machinery or equipment or they must have a contract for after sales service or warranty agreed at the time the contract was entered into.
This presents a valuable short term solution for many EU workers. However, in practice it is unclear how well this will be managed by the UK border force when they are expected to evaluate the genuineness of a visitor who presents themselves with the intention of working for up to 6 months.
In a bid to manage the risk of issues arising at the border, or during a visit, the EU service provider might encourage its EU workers to take the (optional) step of applying for the visit visa in advance of travel. The hope and expectation would be that a border force official would be quicker to accept the migrant’s position as valid based on them having obtained a visa on formal applicant (rather than entry clearance at the border). The cost and time associated with such an application must be weighed in the balance.
Intra-company transfers (ICT)
These provisions of the TCA are designed to allow for internal secondments (e.g. within a company's corporate group) of senior managers, experienced specialists or graduates. Specialists’ qualifications are assessed by considering both qualifications and experience. Prior to transfer, the individuals must have worked in their respective country for at least a year.
If the EU service provider’s workers do not readily fit into these categories, it may be difficult to take advantage of this provision. Under the UK’s own Immigration Rules for this route, there is also a minimum base salary of £41,500 which will be to the exclusion of many.
The UK Immigration Rules are more generous than the provisions of the TCA for this temporary route in terms of total period of stay, with visas granted up to 6 years. The new UK Immigration Rules also allow ICT workers to switch into the Skilled Worker route whilst in the UK, providing them with a route to settlement.
Contractual service suppliers (temporary work visas for international agreements)
These provisions are essentially designed to allow workers of an EU service provider to perform a contract in the UK for a UK based client, on behalf of their EU employer.
For trips to the UK, the route is of potential importance where the activities are not permitted under the short term business visitor rules (for example, they do not fall within the PA7 ‘manufacturer/supplier’ provisions referred to above. The UK interpretation of the route (known as “T5”) provides that workers will need to have their visa sponsored by a UK based client that is an A-rated Temporary Worker (International Agreement) sponsor licence holder under the UK’s points-based immigration system. The workers will need to obtain a temporary work visa in reliance on that UK client sponsorship.
Only certain sectors covered by the TCA will qualify for these temporary work visas for the UK, but these cover a range of areas including, accounting, engineering, research and medical services. The workers themselves will also be expected to meet minimum requirements as regards experience and relevant qualifications. They can stay within the UK for a cumulative period of 12 months, or the duration of the contract whichever is less.
Under the TCA, independent professionals are individuals who are officially established as self-employed in their home country before they travel to work in the UK. They cannot travel to seek work in the UK or travel to the UK to establish themselves as a self employed person. However, they may stay in the UK for a period of up to 12 months, or the duration of their contract, which ever is shorter. The contract must be specific to the supply services in the UK to a company in a qualifying sector. The engagement cannot be supplied through a recruitment agency .This route requires the individual to demonstrate extensive qualifications and experience in their field.
In practice, the ease of business travel from the EU for service provision in the UK will depend on specific exceptions and reservations listed in the TCA and its numerous annexes, and the UK’s own (occasionally more generous) Immigration Rules. In these circumstances, it is always prudent to ensure you have explored the more straight forward options for EU nationals and evaluated whether they may fall into a category where there are no work permit or visa requirements on them travelling to and working in the UK. For example, on the basis of being a Frontier worker or holding pre-settled or settled status under the EU Settlement Scheme.
How we can help
With early consideration and understanding of your company’s requirements, we can evaluate and identify the options available to you for a given project. By exploring and maximising the opportunities available under the TCA and UK Immigration Rules, we can help you to identify the most direct and cost-effective route for EU based workers to enter the UK on a short-term basis. We can also talk you through the alternative longer term options under the Immigration Rules to ensure your longer term objectives are met as efficiently and effectively as possible.