Citizens’ Rights were one of the first and most important components to be negotiated and protected in the November 2019 Withdrawal Agreement. However, whilst the rights of British citizens resident in the EU and EU citizens resident in the UK before 11pm on 31 December 2020 are protected, free movement of people ended on that date.
Consequently, the trade deal could not ever have been expected to reverse the end of free movement. Nor could it be expected to significantly change the position that those not protected by the Withdrawal Agreement would need a visa to work in the UK/EU. It does though offer some hope of clarity on the rules for short-term business visitors.
European free movement ceased at 11pm on 31 December 2020 when the transition period ended. In early 2019 the UK started the EU Settlement Scheme. This has allowed EU citizens resident in the UK before the end of the transition period to have a continuing lawful residence and right to work in the UK so long as they apply before 30 June 2021. Equally, British citizens resident in an EU member state before the end of the transition period are able to register and continue their stay. Irish citizens are unaffected by Brexit and can continue to work in the UK, likewise British citizens can continue to work in Ireland.
Over the last couple of years the UK government has released a White Paper and various policy documents concerning the rules for EU citizens coming to work in the UK for the first time on or after 1 January 2021. This has largely centred on the flagship Skilled Worker category, first introduced on 1 December 2020 to replace Tier 2 and now applicable to EU and non-EU citizens who will be sponsored to work in the UK. Applicants must meet salary and skill thresholds and their UK employer must have a sponsor licence. Likewise, any British citizens working in the EU for the first time from 1 January 2021 will need to apply for a work permit under the national laws of the relevant member state.
The EU (Future Relationship) Act received royal assent bringing the EU-UK Trade and Cooperation Agreement ("the Agreement") into UK law on 31 December 2020. The Agreement applies provisionally from 1 January 2021, pending approval and ratification in the European Parliament. The EU has indicated it may seek an extension in which to consider the Agreement, from the end of February to March or April 2021.
The Agreement includes provisions for short-term business visitors (“business visitors”), intra-company transferees (“ICT”), Contractual Service Suppliers (“CSS”) and Independent Professionals (“IP”).
On business visitors, UK and EU employers will be required to undergo a significant change of mind set in what was previously an unhindered process. Helpfully, prior to the Agreement the UK and EU agreed that citizens would not require a prior visa before travel as a visitor after 1 January 2021. So UK/EU citizen visitors will be treated as ‘third country’ nationals in much the same way as for example US citizens. But employers need to beware of the rules on what is and is not considered to be permitted business visitor activity, as work is not allowed. Business visitors must not engage in selling goods or supplying services to the general public and must not receive remuneration from the host country. Where an activity is not permitted, a work permit is required. EU citizens will need to be carrying out a permitted activity within the UK Immigration Rules. For British citizen business visitors in the EU, the rules are much less clear as each member state has its own rules.
The provisions in the Agreement for short-term business visitors will be welcomed by UK employers as it ambitiously lists out the common agreed permitted types of business visitor activity. These include meetings and consultations; commercial transactions (management and supervisory personnel and financial services personnel, including insurers, bankers and investment brokers engaging in a commercial transaction); research and design; marketing research; training seminars; trade fairs and exhibitions; sales (representatives of a supplier of services or goods) and purchasing. In response, the UK has already updated its business visitor rules to comply with the list. It remains to be seen how EU member states will react to the Agreement in this regard and whether in reality there will continue to be many different rules for each member state. Within the Agreement itself there is a list of activities which will not be applicable in certain countries and will require a work permit.
The Agreement calls for business visitors to be granted entry for up to 90 days in a six month (actually 180 days) period. The UK’s Immigration Rules already go further and so EU citizens will be able to visit for up to a maximum of six months at a time. The Agreement also deals with business visitors for establishment purposes. For the UK, this will largely be reflected in the existing representative of an overseas business category whereby a senior employee of an overseas company can come to the UK to set up for the first time a UK group company.
On ICTs, the UK has a well-established ICT category which on 1 December 2020 replaced Tier 2 (ICT) and applies to both EU and non-EU citizens. ICTs are applicable to employees temporarily working overseas at a company in the same corporate group. For a UK employer to sponsor an EU citizen, it must have a sponsor licence in place and pay high visa fees. The Agreement allows for sponsoring entities in the host country to require a licence. In any event, many UK employers are favouring Skilled Worker visas as unlike ICT visas they lead to indefinite leave to remain.
The Agreement says that the length of stay for ICTs should be for a period of up to three years for managers and specialists and up to one year for trainee employees. Again, the UK’s rules already go further in that ordinarily ICT visas can be issued for up to 5 years, and for up to 12 months for Graduate Trainees. The Agreement requires at least 12 months prior service within the group for managers and specialists and of not less than six months for trainee employees. The UK ICT rules already require at least 12 months’ service, although that is waived if the UK salary will be £73,900 or above. For Graduate Trainees at least 3 months’ prior service is required.
For UK employers who have become well-used to ICT applications for non-EU citizens, the inclusion of EU citizens working in the UK may be easier to manage, albeit difficult to budget for in terms of time and expense. But for British citizens moving on ICTs to the EU, the rules in the Agreement will be more pertinent. As for business visitors, the Agreement does not provide for a uniform ICT visa application for all EU member states. Rather, the particular rules of each member state must be followed, albeit the general provisions in the Agreement should be applicable. The provisions in the Agreement for “Transparency” of visa processes will be welcomed in an effort for rules, documentation, timing and procedure to be clearly laid out by each member state.
CSS and IP
The Agreement covers CSS (those travelling as employees of a legal entity not established in the other country, which is supplying services to an end user under a contract lasting no more than 12 months). CSS’ need to have 12 months’ prior service with the sending entity and in addition they need three years’ total professional experience, a degree or equivalent professional qualifications.
It also covers IPs (self-employed professionals not established in the other country who are providing services to an end user under a contract lasting no more than 12 months). IPs need to have at least six years’ relevant professional experience, a degree or equivalent professional qualifications.
These rules are only designed to cover short-term trips of up to 12 months and the particular specifications for each sector/type of worker in the Agreement must be followed, including from a regulatory perspective. The UK and the EU member states are able to impose their own visa requirements. An economic needs test (such as a resident labour market test) may be required for some EU member states and sectors. The requirements are more onerous than the ICT rules which employers may be inclined to use instead where possible (including where there is a suitable corporate group sponsor in the host country). The UK has already made an amendment to its International Agreement Worker category to include a reference to the Agreement. Such an application would require the UK sponsor to have a licence in place and the visa would be issued for up to 12 months.
The Agreement does not change the position that free movement of people between the EU and the UK has ended. For EU citizens visiting and working in the UK, regardless of the Agreement, the reality will largely be that UK employers need to apply the same rules as they have become used to for non-EU citizens. Extra time and expense should be budgeted. Care will need to be taken in terms of what is and is not permitted business visitor activity and where work permission is required. This will require attention and thought in UK and EU based offices when travel increases again after the pandemic ends.
There is some hope that the Agreement will simplify business travel for British citizens to the EU. At the moment, it is very unclear what activities are permissible in each member state, where the requirements vary greatly. This raises a compliance issue that employers should address. It remains to be seen whether the EU member states adopt uniformity on the business visitor rules and in the meantime local advice should be sought from the relevant member state. Where permission to work is required, the particular work permit rules for the member state need to be followed and on ICTs the Agreement will not assist in making that process much easier or clearer.
Ilda de Sousa
Professional Support Lawyer