Immigration after Brexit: the impact on business travel

The first of January brought an end to the total freedom of movement that we have enjoyed for over 40 years. The UK government agreed a deal, the Trade and Cooperation Agreement (TCA), with the EU just before the end of the year. Due to the Covid-19 pandemic limiting travel, the impact of Brexit on businesses is not yet fully realised. As business activity recovers, we need to look at what the new relationship between the UK and the EU will mean to business travellers. Here, we look at those coming to the UK for short-term projects as opposed to a longer-term relocation.

Business visitor permitted activities under the UK Immigration Rules are largely unchanged. Aside from specific and limited exceptions, work cannot be undertaken from inside the UK. Business visitors under the TCA have a similar range of permitted activities, but with a slightly wider scope under each.

To the extent that the activities carried out by an EU national do require a form of permission, are there alternatives to a full Skilled Worker visa application? The good news is that yes there are. In very general terms, how the UK treats EU nationals will be mirrored by the EU treatment of UK nationals; however; each of the remaining 27 EU Member States has the right to opt out of various concessions and have done so. Therefore, each EU territory must be reviewed on a case-by-case basis.

International agreement – Tier 5

UK companies can extend an existing sponsor licence to include Tier 5. These provisions allow employees of an overseas service supplier (contractual service suppliers) and self-employed people established outside the UK (independent professionals) to come to the UK. There are some important criteria:

• the work is under a contract to supply services in the UK by an overseas undertaking established in the territory of a party to the General Agreement on Trade in Services, (or any other international agreement that has been concluded and is in force);
• that service falls within the scope of the commitments in the relevant agreement;
• the service supplier or independent professional has no commercial presence in the UK; and
• the service supplier or independent professional’s business is established in the country or territory that is a signatory to the agreement under which they are supplying services.

The permit will be limited to a maximum of 12 months and UK Visas and Immigration (UKVI) reserve the right to examine tendering or other selection procedure. UK companies cannot sponsor a contractual service supplier or an independent professional to supply as labour to another organisation. If the worker is a contractual service supplier, they must have been employed by the sending business for at least the 12 months immediately before the date of their application for entry clearance or permission to stay.

The worker must normally have either a university degree or a technical and relevant professional experience in the sector in which they are being sponsored:

• Contractual service supplier – three years’ professional experience in the sector concerned.
• Independent professional - six years’ professional experience in the sector concerned.

Frontier Workers

A Frontier Worker permit allows an EU national to the UK to work while living elsewhere. The basic criteria to be met are that the employee must:

• Be from the EU, Switzerland, Norway, Iceland or Liechtenstein.
• Live outside of the UK.
• Has worked in the UK by 31 December 2020.
• Has kept working in the UK at least once every 12 months since starting.

EU Settlement Scheme

For EU nationals who have lived in the UK prior to 1 January 2021, the EU Settlement Scheme may still be a viable option. The deadline for applying is 30 June 2021 and the application is based on proving residence in the UK prior to 1 January 2021. If settled or pre-settled status is granted, it is an entitlement to live and work in the UK

Our general advice remains that, if you are an international business and/or currently employ non-UK nationals, the new rules will have an impact on how you recruit and staff your business. We have produced this useful flowchart to help guide you as to the possible visa route, but this is of course very generic and not a substitute for proper advice.

Please do get in touch to schedule a call to discuss the changes and how to best plan.