How to have a Happy New Year, and avoid a recruitment hangover – part three
In part three of our series looking at preparations for the end of free movement on 31 December 2020, we look at how the end of the Brexit transition period affects those who work across borders and the protections being put in place for them.
Throughout the UK’s time as a member state of the European Union, UK and EU Citizens have enjoyed a right to move freely into and around EU member states to live, work, and conduct business without immigration controls.
This has led many to develop cross-border employment relationships, such that they live in one EU country, but regularly or occasionally travel to another (and potentially, the UK) for work. Depending on their living and working arrangements, some of these cross-border workers doing their work in the UK, may in fact be able to apply for “pre-settled” or “settled” status under the EU Settlement scheme, but what about those who are not eligible?
Under the Withdrawal Agreement the UK has to ensure that those Frontier Workers who began working in the UK before the end of the transition period, but whose main place of residence remained outside the UK, can continue to do so once free movement comes to an end. Similarly EU countries will be required to protect the rights of British nationals already working across borders prior to 31 December 2020 but who still reside in the UK.
The method for this in the UK is the Frontier Worker Permit, which exempts the holder from immigration control in respect of continuing their economic activity. To be eligible for a permit, a Frontier Worker must meet the following essential criteria before 31 December 2020 and continue to meet them:
- They are an EU/EEA national (including Swiss nationals)
- They are not primarily resident in the UK
- And they are one of the following:
- A worker in the UK
- Self employed in the UK
- A person who has retained either status via an exemption
Correspondence from the Home Office confirms that this definition is intended to cover a broad range of economic activities, from people who cross the border every working day, to those who come less frequently or for longer periods of time. It includes those whose only work activity is in the UK, and those for whom only part of their overall activity is undertaken in the UK.
Applications for Permits will open from 10 December 2020, but there is no deadline for applications upon becoming eligible. Conceivably an eligible worker will be able to make a successful application many years after 31 December 2020, provided they can evidence their eligibility, but we suspect that this might be revisited by the Government in due course.
The work a Frontier Worker carries out in the UK must be ‘genuine and effective’, and not marginal and ancillary to their lifestyle as a whole. This indicates that those who currently do limited kinds of business activity in the UK falling within the range of permitted activities of a visitor, will be unlikely to be eligible for a Frontier Worker Permit.
For British Frontier Workers, after the end of the transition period, they will need separate permission in each EU country that they intend to continue working in. The Dutch government, for example, has already launched its application process.
Irish nationals working in the UK will benefit from the Common Travel Area arrangements and do not need to apply for a Frontier Worker Permit unless they wish to.
What can employers do to prepare?
- If you are a UK employer, doing business in Europe and regularly sending workers to other EU countries to conduct business, assess whether and how that activity might continue after 31 December 2020. Could some or all of the workers be eligible for Frontier Worker-type permits? If so, how are these obtained?
- If you are an EU employer, or a UK employer that has EU/EEA nationals crossing over the UK border to carry out work for you, conduct the same assessment in relation to these workers and whether they should consider applying for a Frontier Worker Permit.
If you rely on cross-border workers 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 conducting Right to Work Checks in the lead up to, and after, 31 December 2020.