The EU-UK Trade & Cooperation Agreement is not a meaningful replacement of free movement
The EU-UK Trade & Cooperation Agreement (“TCA”) is the 1246 page end result of the trade deal finally reached between the UK and the EU on Christmas Eve 2020. A similar deal with Switzerland was reached on 14 December 2020. Iceland, Liechtenstein and Norway (countries part of the EEA but not the EU) are not covered, presumably whilst separate trade talks continue.
The TCA contains provisions on temporary mobility rights and replace free movement, which ceased at 11pm on 31 December 2020. It is vastly limited compared to free movement and simply extends the business visitor category to include a few more permissible activities and creates short term work visas for certain experienced workers and intra company transfers. The provisions relating to temporary business activities can be categorised into the following 5 areas:
- Contractual Service Providers or “CSP”s
- Independent Professionals or “IP”s
- Intra-corporate transferees
- Business visitors for establishment purposes; and
- Short term business visitors
On the whole, short term business visitors will not require any prior work or travel authorisation. But CSPs and IPs will need to apply under the Temporary Worker International Agreement Worker visa (T5) route, which has been quickly expanded as a result of both agreements. For permanent moves and activities requiring a work permit, the domestic law of the relevant Member State must be followed. For the UK, this means the new Skilled Worker route for individuals with a qualifying job offer, which replaced Tier 2 General from 1 December 2020.
Helpfully the TCA provides a definitive list of activities permissible under the short term business visitor category. However, the precise eligibility requirements under each of the 5 categories differ slightly between Member States and, where differences exist, they are listed as country-specific ‘reservations’ within the relevant annexes to the agreement. It is therefore vital that UK business travellers check the domestic law of their destination EU country before carrying out any planned business visit. Under some of the categories, such as the CSP and IP routes as indicated above, plus the intra-corporate category, permission must obtained in advance, which in effect means a visa application.
The UK immigration system retains its Sole Representative and ICT visa categories, which broadly equate to the business visitors for establishment purposes and the intra company transferee categories under the TCA. In a number of ways the UK law is currently more generous. For example, the sole representative category leads to permanent residency and the ICT route allows visas potentially for up to 9 years, rather than the 3 years permitted under the TCA. Business visitors can also remain in the UK for longer under the immigration rules (up to six months at any one time rather than up to 90 days in any six months specified in the TCA).
In reality the temporary mobility rights under both agreements may only be beneficial where businesses require employees to be temporarily based in the UK for a short period. Where someone is required to work in the UK for longer periods or fulfil a UK based role, a visa under the UK immigration system may be a better, although more costly option.
The TCA has not been fully implemented yet so there is limited guidance on the full requirements and application process where permission is required before travel. Due to the late stage of the negotiations, the agreement is provisionally applicable within the EU from 1 January 2021, pending the formal consent of the EU Parliament. Implementation is expected by February. In the UK, the European Union (Future Relationship) Act 2020 was passed, which provides for the domestic implementation of the TCA. The UK’s visitor visa rules have already been updated slightly in relation to the permitted activities contained within the agreement. The Temporary Worker International Agreement Worker visa (T5) category has also been updated to make reference to nationals of the EU and Switzerland under the CSP and IP sub-categories. More changes are likely to be forthcoming.
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