From 1 July 2021, all EU, EEA and Swiss national frontier workers will need to hold a frontier worker permit in order to enter the UK as a frontier worker.
Frontier workers, also known as cross-border workers, are essentially EU, EEA and Swiss nationals who work in the UK but are primarily resident outside the UK.
EU free movement provisions meant that previously, frontier workers were able to move freely within the EU, including for work purposes. Free movement provisions came to an end on 31 December 2020 and, as such, the government has introduced a frontier worker permit to allow for the continuity of cross-border work of EU, EEA and Swiss nationals from 1 July 2021.
Businesses and organisations have benefitted from having individuals such as consultants, service providers, market researchers, salespeople, project managers and even senior executives and directors, enter the UK to conduct work for or on their behalf and then return to their country of residence. Many of these individuals will not be employed or contracted on a full-time basis but rather, contracted only for particular times of the year and/or for particular projects.
To be eligible for a frontier worker permit, applicants must have met the eligibility requirements prior to 31 December 2020 and must be able to continue to meet the requirements at the time of their application for a permit. Applicants must be:
- EU, EEA or Swiss nationals;
- Not primarily resident in the UK; and
- Either a worker in the UK, a self-employed person in the UK or a person who has retained the status of being a worker/self-employed person under EU law.
Applicants will usually be expected to have returned to their country of residence at least once in the last 6 months or twice in the last 12 months before the date of their application, unless there are exceptional reasons for not doing so such as illness, accident, pregnancy or childbirth. Consideration is also given to factors relating to Covid-19 such as self-isolation and travel restrictions. Evidence of any exceptional reasons must be provided in support of an application for a frontier worker permit.
Where reliance is placed on an exceptional reason and accepted by the Home Office, applicants will be treated as having retained their status as a worker or self-employed person in the UK.
Where applications are approved, a frontier worker permit will be valid for five years, or two years where the applicant has retained their status as a worker or self-employed person in the UK.
The frontier worker permit scheme provides businesses with huge benefits such as the ability to retain continuity and stability of service from those who they employ or engage who are EU, EEA or Swiss nationals and who do not reside in the UK.
As this is not a sponsored permit, there is no need for the business to hold a sponsor licence or meet the eligibility requirements under the Skilled Worker route. Applications are free and there is no Immigration Skills Charge to be paid, which is another significant saving.
Applications are made online, with applicants being able to use a smartphone app to verify their identity or alternatively, attend an appointment in order to provide their passport and biometric information.
Permits can be extended indefinitely as long as the applicant continues to meet the requirements.
There are a number of drawbacks to note:
- Family members are not eligible to apply for a permit in order to join frontier workers in the UK. Family members intending to join frontier workers in the UK should apply instead under the EU Settlement Scheme, where they were resident in the UK prior to 31 December 2020;
- The frontier worker permit scheme does not lead to settlement; and
- Businesses and organisations will need to make sure they have understood the employment law and/or tax/social security considerations of this arrangement, particularly if individuals are also carrying out work for the business from their country of residence in addition to the work they are carrying out in the UK.
What can businesses and organisations be doing now?
You should undertake a review of your contracts of employment and any agreements for services which are due to take place in the near future, where the individual is not usually resident in the UK, this will help to understand who will be affected by the changes so that you can take swift action to prevent any disruption to the business.
Where you are looking to engage an employee or self-employed person who has not worked for you in 2020 but may have done previously, review the reasons why they were not engaged in 2020. Where these reasons amount to ‘exceptional reasons’, consider an application for a frontier worker permit as a retained frontier worker.
Where you are looking to engage an employee or self-employed person who has not previously worked in the UK prior to 31 December 2020, ensure that you take legal advice to understand the most appropriate immigration route for the individual to enter the UK and engage with the business. Do be careful not to provide immigration advice or services; this should only be provided if you are regulated to do so, otherwise you risk committing a criminal offence.
Should you require further advice or support, please contact a member of our specialist immigration team.