Brexit and the pandemic have thrown more than a few curveballs at businesses on both sides of the Channel. A pressing issue is how British and European businesses can continue to collaborate on projects in the UK without incurring significant additional costs.
The Migration Advisory Committee (MAC) made recommendations to the government regarding the design of a Global Business Mobility (GMB) route which is due to be launched in the spring of this year.
The plan is to incorporate and reform existing immigration routes for international workers into the UK. This article will be looking at suggested amendments, in particular those amendments which have consequences for EU/EEA and Swiss nationals coming to work in the UK.
Current work routes
The main routes for foreign workers, and, since Brexit including EU/EEA nationals, to work in the UK, are currently:
- Employer sponsorship under the skilled worker and intra-company transfer (ICT) visa categories for a minimum of three years – employers acquire a sponsor licence to sponsor workers to undertake specific work in the UK. The onus is on the employer to fulfil certain duties and responsibilities and there are strict monitoring obligations. Whilst it is possible for international employees to be seconded to clients of the UK business to work on specific projects under the ICT route, it is a relatively expensive option and the employee must be paid a minimum salary of GBP £41,500.
- It is also possible for an overseas business to send a senior employee to set up a business in the UK under the Sole Representative of an Overseas Business visa category. No sponsorship is required for this category.
- For very short projects, foreign workers can apply for a visitors’ visa to carry out specific permitted business activities in the UK. These activities include: attending scheduled meetings and conferences or seminars in the UK, negotiating and signing contracts, attending trade fairs to promote business, giving talks, carrying out site visits and inspections, or overseeing the delivery of goods and services provided for by a UK company. It further includes to delivering training by the international worker or sharing knowledge on internal projects with UK employers. Due to its ‘visitor’ nature, the foreign worker should not be paid for its services in the UK (limited exceptions). It is vital to check for each visit that the activities genuinely fall under the correct visitor category.
- An EU worker may also continue to work in the UK under the Frontier Permit Scheme subject to the criteria.
EU, EEA and Swiss workers, as they fall under the category non-visa nationals in the Immigration rules, do not have to apply for a (business) visitor visa prior to arrival in the UK although there is a risk that they will be turned away at the UK border where the purpose of their visit is to carry out work. Legal advice on the situation is recommended.
Global Business Mobility Route
The proposed amendments of the MAC are consolidating some of the existing routes into a simplified route. First, the GBM route will include simplified provisions for intra-company transferees. The ICT route, which requires sponsorship from a UK based employer, is the route for transferring employees from offices of the same organisation, to the associated company in the UK. It is now possible for a worker to enter the UK via this route and eventually obtain settlement in the UK subject to complying with certain rules. Under the new proposals, the ICT will continue to impose the Immigration Skills Charge (ISC) for each sponsored worker. However, there is some good news for EEA nationals in that the ISC must be disapplied by 1/01/2023 at the latest.
The GBM proposes new arrangements for employers and representatives of an overseas business assigned to the UK to establish a branch/subsidiary of that business in the UK. It will replace the Sole Representative of an Overseas Business visa. Whereas the Home Office (HO) had asked the MAC to comment on a potential “team subsidiary” visa for sending a group of overseas representatives into the UK, under the proposals, the amendment might include the requirement for the company in the UK to hold a sponsor licence.
Further, the MAC commented on the “ability of an overseas business to send a team of workers” to undertake a secondment in relation to high-value contracts for goods and services. It thought that in most cases, such businesses can use rules on permitted activities under the visitor visa. But in a few cases involving very high value contracts, the HO has apparently been applying cloak-and-dagger discretion to allow workers to stay for longer than the six months allowed under the visitor visa. The MAC suggests that this discretionary practice be brought into the open so everyone can benefit. It would only apply to contracts of more than GBP 50 million so this will be niche at best.
Bearing this in mind, the MAC urges the government to consider new options for short-term assignments, for workers who currently fall between the stools of the ICT and visitor visa rules.
The availability of EU workers following the end of free movement has reduced significantly and typically EU nationals used to generally fill these short-term positions. The MAC sees the need for a flexible and time-limited route that would allow the worker to carry out specialist technical work which requires only short periods of time to complete.
Whilst the GMB route promises to simplify some processes for international workers, it is evident that the hard-line approach to immigration remains, and EU businesses are not being offered an olive branch at the current time. The MAC’s recommendations are positive but not revolutionary, and do not aid EU and international businesses to work on short term projects with UK business unless the contracts are for several millions of pounds.
For EEA/Swiss nationals, the Frontier Permit Scheme remains a potential option. As set up under the Withdrawal Agreement provisions, EEA/Swiss nationals may come and work in the UK where they work regularly in the UK but has their main residence outside of the UK. The scheme only applies to EEA/Swiss citizens who started economic activities before the 31/12/2020. There is no deadline to apply as long as regular work activities in the UK are stable and continuous. Application is free of charge and has proven very popular. Currently the Home Office interprets the rules in relation to frontier workers broadly.
The frontier permit can be distinguished from the business visitor who can only carry out certain permitted activities and cannot receive payment for those activities in the UK. The frontier worker, on the other hand, is paid for work in the UK.
What is interesting is that the direction of travel is now firmly towards making work-based immigration routes more flexible, not less. However, there is still a long way to go to really give UK, EU and international business the boost needed to make cross border recruitment and collaboration thrive under the immigration rules.
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
© Miller Rosenfalck LLP, January 2022
