New limitations on international mobility are a major concern for cross-channel employers, who rely on the free movement of labour. Brexit will raise costs and increase delays for those wishing to recruit on both sides of the Channel. It is imperative that businesses ensure their workforce have the right to work under the new regime, to avoid delays, fines and even custodial sentences.
How has Brexit impacted EU workers in the UK?
From 1 July 2021, EEA and Swiss citizens must have a visa to remain in the UK for longer than six months, and to work, study or be self-employed.
EEA and Swiss citizens who have EU permanent residence or an EU registration card or certificate will be eligible for status under the EU Settlement Scheme (‘EUSS’), but must apply for status before 30 June 2021.
For those who aren’t eligible, employers will need to obtain a Skilled Worker Sponsorship Licence and employees will need to apply for a visa. End-to-end, the sponsorship process takes three to four months from getting the licence to the employee starting work, and costs in the region of £10,000 in Home Office fees alone for a five year visa. In contrast, EU Settlement Scheme (EUSS) visa applications can take just two days, and have no application fee. Therefore, if employees are eligible for the EUSS, it is important that they apply.
How has Brexit impacted UK workers wishing to work in the EU?
UK businesses looking to develop abroad will also be met with immigration difficulties when trying to secure the right to work for UK employees.
Businesses that require UK employees to spend 90 days in every 180 in an EU member state will need permission from the specific state that they wish to reside in – there is no general EU or EEA-wide work visa.
The Mobility and Service Provision in the UK-EU Trade and Co-operation Agreement attempted to provide some uniformity with regards to medium term temporary visas. However, the requirements and application process for these visas differs for each country.
There are various medium term visas on offer, including:
- Business visitors for establishment purposes: for persons in a senior position who are setting up an enterprise in the EU state (Article SERVIN.4.1 to 4.6 – page 86 onwards, Annex SERVIN-3- page 742 onwards).
- Contractual service suppliers: for those employed by a business which is not established in the EU state and has a contract for less than 12 months to supply a service to a final consumer, which necessitates the employee being in the state on a temporary basis (Article SERVIN.4.1 to 4.6 – page 86 onwards, Annex SERVIN-4- page 747 onwards)
- Independent professionals: for self-employed persons supplying a service to a final consumer in another country with a contract for less than 12 months (Article SERVIN.4.1 to 4.6 – page 86 onwards, Annex SERVIN-4- page 747 onwards)
- Intra-corporate transferees: for those employed by the business for at least one year as a manager or specialist, or for six months as a trainee. This is applicable where the transfer is temporary to the other organisation which is part of the same group in the other country (Article SERVIN.4.1 to 4.6 – page 86 onwards, Annex SERVIN-3- page 742 onwards).
Therefore, in order to assess whether one of these visas is necessary, important that organisations make a concerted effort to track the number of days their employees spend both within and outside the UK.
For longer term visas and work permits, each country has its own rules, which are not covered by the Agreement and local advice will need to be sought.
What visas are there for self-employment in the UK?
There are limited options for visas which enable self-employment in the UK. Business visitors can stay in the UK up to six months, but cannot work. If they make frequent and successive visits to the UK, they could be questioned at the border if immigration officer believes that they are working or living in the UK.
Further details of the proposed immigration route for highly skilled workers is due to be introduced in 2022, which would benefit self-employed people and those without a job offer. There will be a cap on numbers, but this new visa will be welcome news for the self-employed who currently have very few options for obtaining a UK visa unless they can invest £2million for an Investor visa, or they meet the exceptional skills and international recognition required for a Global Talent visa. The much-vaunted Innovator and Start Up visas have had very low uptake, because they are narrowly focussed on the tech and digital sector, and obtaining institutional endorsement and funding has proven a deterrent to many applicants.
To avoid disruption, businesses need to assess how the new measures will affect their employees, ensuring their workforce have the right to work either in the UK or across the channel. Spot checks and inspections are becoming common place, and getting it wrong can result in fines, cancellation of visas and criminal convictions.
For further information as to how we can help please contact our Immigration team who would be happy to advise, alternatively you can call +44 20 7597 6000 or email enquiries.uk@withersworldwide.com.
