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23 December 2020
On 10 December 2020 the United Kingdom opened up a process for EEA nationals to apply for a frontier worker permit. This will allow some cross-border commuters who work in the United Kingdom but live abroad to continue their working pattern after the end of the Brexit transition period.
The frontier worker permit will help EEA nationals who occasionally work in the United Kingdom (eg, non-Irish EEA citizens who live in Ireland and occasionally work in Northern Ireland or French nationals who travel to work in London on a frequent basis). However, assessing eligibility for a frontier worker permit may not be straightforward and in many cases frontier workers may be better placed to apply under the EU Settlement Scheme (EUSS). Therefore, it is necessary to assess the best option for frontier workers on a case-by-case basis. If they do apply for a frontier worker permit, they will need to be informed about what the requirements are to maintain and renew their permit.
'Frontier workers' are EEA nationals who start work in the United Kingdom by 11:00pm on 31 December 2020 (ie, the end of the Brexit transition period) but who are primarily resident outside the United Kingdom. The work in the United Kingdom can either be on an employed or self-employed basis.
Irish nationals who are frontier workers can continue to work in the United Kingdom without any restrictions after the end of the Brexit transition period so need not apply for a frontier worker permit; however, they can choose to do so if they wish.
Frontier worker status can be retained where people have stopped working temporarily. For example:
The requirements for retaining frontier worker status are complex and specific advice on the provisions should be sought as necessary.
Frontier workers must not be primarily resident in the United Kingdom (ie, their main residence and home must be elsewhere, but not necessarily in the European Economic Area). Under EU law, frontier workers are expected to return to their home country at least once a week. The United Kingdom has decided to adopt a more liberal definition of being 'not primarily resident' under the Citizens' Rights (Frontier Workers) (EU Exit) Regulations 2020. According to the regulations, EEA nationals who fall under one of the following categories are not 'primarily resident in the United Kingdom':
EEA nationals who spend the majority of their time in the United Kingdom can still benefit from frontier working provisions, as long as they comply with the second of the two requirements above. However, a frontier worker permit will not lead to settlement, but can be extended on multiple occasions.
EEA nationals wishing to settle in the United Kingdom permanently should ensure that they apply by 30 June 2021 for pre-settled status under the EUSS rather than using this route.
People who spend little time in the United Kingdom working may also be classed as frontier workers. What will be key is whether their activities in the United Kingdom amount to 'work'. The provisions state that EEA nationals must carry out work in the United Kingdom that is 'genuine and effective' rather than 'marginal and ancillary'. This means that work carried out in the United Kingdom must not involve so little time and money that it is irrelevant to the lifestyle of the EEA national while they are in the United Kingdom. For example, an interview or one-off business meeting will not be considered genuine and effective work.
EEA nationals will need to produce evidence of their work in the United Kingdom to prove that they are genuinely frontier workers. The Home Office has published guidance on this and on the considerations that will apply if EEA nationals' ability to travel to or work in the United Kingdom has been affected by the COVID-19 pandemic.
EEA nationals who meet the criteria above will be able to continue to travel to and work in the United Kingdom until 30 June 2021 using their current original passport or national ID card. From 1 July 2021, in addition to their identity document, EEA nationals must hold a (digital) frontier worker permit in order to enter the United Kingdom on that basis.
The requirement to obtain a frontier worker permit by 1 July 2021 is a short timeframe considering that the route has not been widely publicised and the guidance on the application process has not been made available ahead of its launch. Due to lack of publicity, some EEA nationals will be unaware of this route and that it may apply to them or be unable to put arrangements in place to bring themselves within scope of the arrangements before the end of the transition period.
On 10 December 2020 the application process for a frontier worker permit was launched. There is no deadline for applications, so people who hold pre-settled status under the EUSS can obtain a frontier worker permit some years from now if they meet its eligibility requirements. This could be an option for those who are unable to meet the residence requirements for settled status in due course, but who continue to work in the United Kingdom.
Frontier worker applications are free of charge and can be submitted in or outside the United Kingdom. Applicants will need to provide evidence of their identity and frontier worker status (ie, relevant documentation regarding their employment or self-employment, such as a letter from a UK employer, payslips or proof of business in the United Kingdom) and evidence of their returns to their home country. It may be tricky for EEA nationals to evidence the latter, considering that they will have no stamps in their passports. Individuals may need to keep their flight booking confirmations and boarding passes to evidence travel to their home country.
If their application is successful, frontier workers will be given a permit valid for five years or two years if they have applied on the basis of retained frontier worker status. One of the conditions is that holders must continue at all times to fall within the definition of 'frontier workers'. Otherwise, their frontier worker permit may be revoked and they may be refused admission or removed from the United Kingdom.
The Home Office has confirmed that frontier workers will be allowed to make applications to switch to other immigration categories while they are in the United Kingdom, provided that they meet eligibility requirements of the category to which they wish to switch.
If EEA nationals hold frontier worker status but wish to travel to the United Kingdom for a purpose other than work (eg, a recreational visit), they will be admitted to the United Kingdom as visitors under general immigration rules and not as frontier workers. This is different from the rules that apply to other exempt categories and it remains to be seen how the Home Office will manage this aspect operationally as most EEA nationals will simply be seeking entry to the United Kingdom via eGates rather than being asked any questions at the border about their intended activities in the United Kingdom.
For further information on this topic please contact Joanna Hunt, Parvin Iman or Kathryn Denyer at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com, firstname.lastname@example.org or email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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