Legal briefing | Brexit, Employment, Immigration |

Brexit: Should employers be worried about business travel post-Brexit transition?

Overview

Brexit is now firmly back on the agenda for employers as we head into the final months before the Brexit Transition period ends on 31 December 2020.

The end of EU freedom of movement means one of the key Brexit impacts for employers is in relation to people and staffing. Employers are being encouraged to apply for an immigration sponsor licence now if they wish to sponsor the visas of EU employees moving to the UK after the Brexit transition ends. Existing EU employees and those who arrive in the UK before the end of this year will have protected status but must apply under the EU Settlement Scheme by 30 June 2021. The position for business travel between the UK and the EU27 however, is not so straightforward. Should employers be worried about UK-EU business travel after the current transition period ends and what steps should they take now to minimise any impact? 

Business travel implications: UK to EU

Currently UK passport holders can travel freely to the EU27 countries for business or work under freedom of movement rules. However, after the Transition period ends, UK passport holders travelling to the EU27 will need to qualify for entry in the same way as any other 'third country’ or non-EU national.   

While the rules will depend on the EU27 country being visited, visa-free travel will generally only be possible for UK passport holders for a limited number of permitted business activities. This is likely to cover meetings with colleagues, clients or customers as well as attending conferences and exhibitions connected with trade, industry or work. Anything beyond that is likely to require a work visa under the rules of the EU27 country being visited.

The proposed activities of the individual will be key here rather than the duration or frequency of travel, meaning a one-day trip could be as problematic as a three-month trip in the new world post Transition.

New passport and border requirements are likely to apply, including:

  • confirming the purpose and anticipated duration for the trip;

  • demonstrating suitable accommodation and funds available for the trip;

  • having at least 6 months left to run their passport at the time of entry into the EU; and

  • monitoring trips to ensure they stay within the limit of no more than 90 days in each 180 days in the EU. The day count applies on a rolling basis and across the Schengen area as a whole. The 26-country Schengen area includes Iceland, Liechtenstein, Norway and Switzerland as well as all of the EU27 except Bulgaria, Croatia, Cyprus, Ireland and Romania.

Business travel implications - EU to UK

EU27 nationals arriving in the UK from January 2021 will be subject to the UK’s new immigration rules. Visa requirements will not generally apply for business visits which fit within the scope of the UK's permitted business activities, including meetings with colleagues, clients and customers to gather information provided any work on the contract is undertake outside the UK. Skill-sharing to collaborate on an internal project is also permitted for visitors coming to the UK office from a linked entity in the EU, as is attending training, conferences and seminars. Beyond these, business visitors are not permitted to work or base themselves in the UK.

Whilst, a business visitor could technically stay in the UK for up to six months, most business trips are expected to be much shorter, as longer trips can be difficult to justify on the basis of the permitted business activities.

Secondments and assignments

UK nationals will no longer have an automatic right to move to work in the EU from 1 January 2021 onwards. Similarly, an EU27 national arriving in the UK after 1 January 2021 will also not have an automatic right to work. This will have practical implications for businesses providing services, sending employees on secondments or who have executives undertaking frequent travel between the UK and the EU.

Visa options available will depend on the nature of the activities to be undertaken, the qualifications of the individual as well as the duration of the activities. In the UK, a visa under the new points-based immigration system includes options for employers to sponsor individuals under the skilled worker or intra company transfer routes but employers will need to hold an immigration sponsor licence to do so.

A careful analysis will be required in relation to activities being undertaken, bearing in mind that a work permit or visa may be required to cover such trips post-Brexit Transition.  

How should you prepare?

Given the changes coming down the track from 1 January 2021 employers need to identify any individuals likely to be impacted and familiarise themselves with the business visitor rules of the UK and relevant EU27 countries. 

Even where the duration and activity fit squarely within the business travel rules for the country being visited, employers may wish to brief individuals to ensure they know how the new requirements apply to them as well as providing letters to facilitate entry at the relevant border. They may also want to review and update business travel policies more generally to cover the new position. In some cases, employers will need to consider whether the scope of activities can be amended or indeed whether a work permit will be required to ensure the actives can be legally undertaken. In the UK, applying for a sponsor licence now will be a key step to prepare ahead of next year’s changes.

We have been working with a number of clients on Brexit planning projects. The implications of the changes for business travel should not be underestimated but should be factored in now to avoid issues as we head into the new world post Brexit Transition.

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