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02 September 2020
EEA nationals and their employers are now turning their minds towards how frequent business and work travellers and cross-border commuters can continue to come to the United Kingdom from 2021. For some, the best solution may be offered by the EU Settlement Scheme (EUSS), but there are also other options to consider.
This article is not intended to cover the position for Irish citizens, who will continue to be able to live and work in the United Kingdom without restriction under the Common Travel Area arrangements. However, they may apply under the EUSS if they so choose.
The EUSS may be a good option for some EEA and Swiss (EEA) nationals who spend time in the United Kingdom for work or business.
It may be relevant for EEA nationals who enter the United Kingdom by 31 December 2020. They should ideally apply as soon as possible after entry, as this minimises the extent of supporting documentation required.
Pre-settled status is valid for five years and lapses only after an absence from the United Kingdom of two consecutive years. There are no restrictions on work or study in the United Kingdom during the validity of pre-settled status, so this offers more flexibility than most other UK immigration categories.
To become eligible for settled status, a person must normally spend a continuous period of five years in the United Kingdom, with no more than six months absence in any 12-month period. There are limited exceptions to this, such as one absence of up to 12 months being allowed for an important reason, such as childbirth, serious illness, vocational training or an overseas posting for work. Absences due to compulsory military service, crown or armed forces service or accompanying a family member on crown or armed forces service are also ignored.
Even if the person's pattern of stay in the United Kingdom will not allow them to proceed to settlement, pre-settled status could be worthy of serious contemplation for those who will spend significant time in the United Kingdom over the next five years, particularly if their activities in the United Kingdom do not fall neatly into another immigration category.
UK immigration applications can be expensive, and another major benefit of the EUSS is that there is no application fee to pay.
The United Kingdom will be revamping its immigration categories for work (for further details please see "Home Office provides consolidated details of new immigration system"). For EEA nationals and their employers, it will be important to understand which work category is the most suitable to meet their short and longer-term goals.
Some issues to think about include:
As an indication, sponsoring an individual skilled worker, without dependants, for five years where the employer must also obtain a sponsor licence can cost between £6,000 and £8,000.
In terms of forward planning, UK employers which know that they will be recruiting an EEA national in 2021 may wish to consider whether to bring the start of their physical work in the United Kingdom forward to 2020, or whether it is feasible for the person to enter the United Kingdom by 31 December 2020 if they do not already live in the United Kingdom. This strategy would be significantly less costly than using a sponsored work option.
Under EU law, a 'frontier worker' is a person who works in the frontier zone of an EU member state but returns each day or at least once a week to the frontier zone of an adjacent country where they live and are a national. The United Kingdom has a frontier zone only with Ireland.
Individuals who are employed or self-employed in the United Kingdom as a frontier worker before the end of 2020 may be eligible to apply for a frontier worker document, which will enable them to continue to do this from 2021. Details of the qualifying criteria and process are expected to be published on GOV.UK later in 2020. The definition of 'frontier worker' adopted by the United Kingdom could include other cross-border workers commuting between the United Kingdom and any EEA country, but this will not be known until the policy is published.
Depending on the details of how long a frontier worker document will be available for, and what the criteria are, using this route rather than the EUSS may be more appropriate for some people if it will allow their employment or self-employment to continue for longer than five years in circumstances where a person would not eligible for settled status under the EUSS.
The United Kingdom's visitor visa rules are due to be reviewed with effect from 1 January 2021; however, it will still be the case that limited business or work activities only will be allowed. This may still be a suitable option for EEA nationals who must come to the United Kingdom only for occasional business meetings or other short-term business-related activities.
However, this status cannot be used to undertake productive work in the United Kingdom unless a specific provision allows – for example, where a person must come to the United Kingdom for a month or less at a time for specific permitted paid engagements.
Entry to the United Kingdom as a visitor will be free for EEA nationals; however, they may need to apply for an electronic travel authorisation (ETA) on a periodic basis for a small charge. The ETA scheme is due to be in place by 2025.
The maximum time that can be spent in the United Kingdom as a visitor on any one occasion is six months. A person must not use this route to base themselves in the United Kingdom – for example, by using frequent or successive visits. They must not work, will have restrictions on study (currently study is allowed only for up to 30 days) and must not access certain public funds.
There may also be other options to consider depending on how much time a person intends to spend in the United Kingdom, the purpose of their intended presence and their personal circumstances. These may include the Youth Mobility Scheme, representative of an overseas business or family-related categories.
It is beneficial to have a detailed initial discussion about what the goals and requirements are for each business and individual, so that short and longer-term implications of the various options can be explored. The time to do this is now, while travel from the European Economic Area is still relatively straightforward despite the ongoing effects of the COVID-19 pandemic, and while participation in the EUSS still remains an option.
For further information on this topic please contact Andrew Osborne at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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