As many UK businesses are starting to get to grips with the implications of Brexit when recruiting staff, including applying for sponsorship licences and visas for European nationals, there is nevertheless still one area in particular which is causing difficulties for many employers.
When we think of recruitment and immigration in the post Brexit era we generally consider issues to be limited to non-British nationals. After all if a new recruit happens to be a British national then surely the whole Brexit conundrum is irrelevant? Well, unfortunately that is not necessarily the case.
As we know, free movement of persons between the EU and the UK ended as of 1 January 2021 and all movements thereafter are subject to the individual EU countries and the UK’s existing immigration laws applicable to third country nationals. Therefore the situation needs to be assessed for UK employees who need to travel to certain EU member countries for business purposes.
UK-EU Trade & Co-operation Agreement
The UK-EU Trade & Co-operation Agreement (TCA), which came into force at 11pm on 30 April 2021, includes a common framework for short-term business trips between the UK and the EU. As a starting point the TCA allows British nationals to enter and temporarily stay in the EU for business purposes for up to 90 days in any six-month period, without the requirement of a work permit, economic needs test or other prior approval procedures.
However, the TCA is subject to wide-ranging exceptions and conditions, one example being that the activities which are permitted on short-term business trips to the EU, must be limited to the following:
- Meetings and consultations.
- Research and design.
- Marketing and research.
- Training seminars.
- Trade fairs.
- After-sales or after-lease service.
- Commercial transactions.
- Tourism personnel.
- Translation and interpretation.
The activities of many types of professionals, such as performers, are not be covered by this list and the TCA signifies a considerable change to the freedom of movement which British nationals benefitted from when the UK was part of the EU and during the transition period.
However, employers should be aware that some EU countries may not allow short-term business trips without a work permit, even if the activities are limited to those listed above. This is another example of the wide-ranging exceptions and conditions which apply to short-term business trips under the TCA as not all EU countries have agreed to the full list of permitted activities. Denmark, Cyprus, Croatia, Latvia, Malta, Slovenia, and Slovakia may all require a work permit of some sort in respect of all of the activities listed above (subject to varying exceptions) whilst Austria, Spain, Finland, Czech Republic, Sweden and Poland all impose restrictions (including work permits in some cases) on some of the activities listed above.
Given the lack of uniformity in the TCA, and since each EU country also has its own local immigration laws that apply to non-EU nationals, it is critical that employers seek legal advice in each local jurisdiction. Such advice should be sought well in advance of sending employees on business trips to ensure that the proposed activities are permitted without a visa in the particular country being visited and if not, ensure that the appropriate work permissions are obtained.
Employers should also bear in mind that even if a work permit may not required for business travels to some EU countries post Brexit, employees will need a European Travel Information and Authorisation System (ETIAS) certificate for short-term business trips to any EU country from 2023, with the application process opening at the end of 2022. Of course ETIAS are not specific to business travels but will apply to anyone travelling to an EU country.
Please contact our employment and immigration team for assistance with all queries relating to business migration and immigration in the UK
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, May 2022