Post-Brexit Implications for UK/EU Business Travel
Following the end of the transitional period at 11pm GMT on 31 December 2020, free movement between the UK and the EU finally ended. From an immigration perspective alone this has enormous implications and represents more change than we have known for decades. In a post-Brexit world it is now more crucial than ever for companies to monitor the activities of their employees undertaking overseas business trips to ensure compliance with the relevant local laws. This article looks at some of the key things UK employers should be considering.
At 11pm on 31 December, EU nationals (but not Irish nationals) became subject to UK immigration control and must now meet the requirements of the UK’s Immigration Rules. At the same time, UK business travellers must meet the domestic laws of their destination EU country. For inter EU/UK travel, therefore, seeking immigration advice is now crucial in order to ascertain precisely what can, and cannot be done as a business visitor, or when a work permit is required. To put it simply, it is no longer possible to simply jump on plane and spend time in a European office, for example, or for a European colleague to turn up and work out of a UK office. The relevant local immigration laws must always be consulted well in advance.
From the UK’s perspective, the business visitor rules now apply to EU and non-EU nationals alike and the requirements are relatively clear. EU, EEA & Swiss national visitors may enter the UK for business purposes for up to six months at a time without applying for a visa in advance. Visitors are not permitted to take employment in the UK, but may undertake certain permitted activities which include:
- attend meetings, conferences, seminars, interviews;
- give a one-off or short series of talks and speeches provided these are not organised as commercial events and will not make a profit for the organiser;
- negotiate and sign deals and contracts;
- attend trade fairs, for promotional work only, provided the visitor is not directly selling;
- carry out site visits and inspections;
- gather information for their employment overseas; and
- be briefed on the requirements of a UK based customer, provided any work for the customer is done outside of the UK.
Under the intra-corporate provisions, an employee of an overseas based company may advise/consult, trouble shoot, train and share skills and knowledge on a specific internal project with UK employees of the same corporate group, provided no work is carried out directly with clients.
Importantly, payment from a UK source is prohibited, unless it is payment for reasonable expenses or if the activity falls within the definition of a very limited number of permitted paid activities. Payment is also allowable in the case of multinationals where their payroll is based out of the UK. Checking email and catching up with work whilst in the UK as a visitor must be incidental to the main reason for visiting the UK - an individual must not simply doing their jobs remotely from the UK, this would require a work visa.
From the EU’s perspective, the general rule is that business travellers can spend no more than 90 cumulative days in any 180 days undertaking business travel across the EU (notably the UK’s rules are more generous allowing visits of up to six months at a time). That said, permissible business activities are not uniform across all of the EU Member States and so the precise immigration requirements of the destination country need to be checked in advance. Where work permission is required, obtaining a work visa or residency permit can take many months in certain EU countries and so careful forward planning is now also crucial.
Finally, the recent EU/UK Trade & Cooperation Agreement contains certain welcome provisions around business mobility, for example in relation to defined categories such as contract service suppliers, business travellers and independent professionals, but these by no means go far enough to provide a meaningful alternative to free movement. Again, the provisions do not apply in the same way across each of the Member States, with some requiring economic needs tests and visas in advance. For the UK, for example, contract service suppliers will require an International Agreement (T5) visa in advance and the host company in the UK will require a sponsor licence under this category.
From an outbound perspective, the reality is that UK companies now have 27 different immigration regimes to contend with in relation to EU business travel and so great care is required to ensure compliance going forward.
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