New immigration rules and pandemic travel restrictions are colliding to cause a bumpy start to 2021.
Although the Brexit transition deadline has passed, individuals who are eligible can continue apply under the Withdrawal Agreement until 30 June 2021 in many cases. There is confusion in these early days and some airlines have reportedly refused boarding to UK nationals who they wrongly believed did not have permission to enter.
UK and EU nationals who were not resident in the EU or UK by 31 December 2020 must now qualify under the immigration rules of their destination country, or look to either the UK-EU Trade and Cooperation Agreement or the UK-Swiss Mobility Agreement for any preferable routes. These routes are modest. The impact of that is being felt in the following ways:
- Crossing borders – looks and feels different. Border officers can ask question as to intention and deny entry where e.g., they think a person is entering the country to work rather than as a visitor
- Remote workers – taking your laptop to France/Germany and working there for a week is not viable in most countries as this is viewed as productive work that cannot be performed as a visitor
- Work permits for UK and EU nationals and all of the administrative requirements (such as English language tests) are a shock to the system
So what is in the EU-UK Trade and Cooperation Agreement, and how far does it alleviate some of these pressure points
The EU-UK Trade and Cooperation Agreement delivers little on the movement of people. There is modest stretch in the Agreement to support UK businesses moving people across EU borders from 1 January 2021 but UK nationals still face a promised sea change and divergent rules to now navigate across the EU for most types of travel and immigration. The end to the mutual recognition of professional qualifications and experience as previously known, adds significant complexity. For UK nationals looking to work in the EU, and their employers, one of the key challenges is navigating so many new regulations, some of which are positive, such as the UK-Swiss Mobility Agreement, others less so.
The big disappointment in the Agreement is that it fails to provide a common standard that would allow businesses to adopt a lighter touch to EU and UK immigration. The nuances mean that country-by-country understanding will be required – this will be resource heavy.
This is particularly true for contractual service providers where the new rules are complex in the extreme. Member States set out their reservations (‘non-conformity’) in very disparate ways – for contractual service providers there are literally hundreds of reservations.
This is an attempt to simplify the key aspects of the Agreement and the broader pandemic impact.
Does free movement end?
Yes, it has already ended – as of 1 January 2021. The deal does not preserve free movement in any way. It establishes standard ‘Mode 4’ agreements which relate to very basic types of people movement for business purposes. (If interested in further reading on Mode 4, see p21 of our EY and TheCityUK report here).
Does the deal impact deadlines for those EU/UK nationals resident in the UK/EU by 1 January 2021?
No, not of itself. These rights are protected in the Withdrawal Agreement, but as noted above, we are already seeing some confusion with airlines misunderstanding these rights.
Can UK nationals travel to the EU without a visa?
That depends of the purpose of the trip. If a visit, business or otherwise, yes (if they can navigate pandemic travel restrictions).
UK nationals can travel to the EU for up to 90 days in 180 for visit purposes without a visa prior to travel.
But what they can do in that 90 days looks very different …
The EU and UK agreed what types of activities business visitors can perform, to a certain extent. In the Agreement, 11 activities are specified as permitted business visit activities (so long as they meet the definitions given of the activity in the Agreement). These include activities like meetings, consultations, research and design, training, trade fairs, sales negotiations, after-sales service and commercial transactions. There is no ability for short-term business visitors to take a fee from a client in the host state. Covering a colleague, working from a second home – none of these are permitted visit activities; taking your laptop to an EU country like France/Germany and working remotely over summer is no longer okay.
Many Member States have expressed reservations to these activities in the Agreement – this makes it impossible to rely on the provision of blanket permission across the EU. Not only that, but Member States can offer more favourable rules, and often do, so the fact that an activity is not listed in the Agreement does not mean that activity is not permitted by every Member State. That means a Member State by Member State assessment is needed in most, if not all cases.
The UK has made no reservations and in fact the UK has preferable business visitor rules in place for all nationals above those in this Agreement in any event which cover e.g., remote work as an ancillary activity – helpful in the pandemic environment.
What about contractual service providers and independent professionals?
The EU and UK have agreed to allow the supply of services by contractual service suppliers (CSS) or independent professionals (IP) of the other Party through the presence of natural persons for the sectors listed in the Agreement, of which there are 37 sectors listed for CSS and 17 for IP. There are several hundreds of reservations set out in the Agreement, making it incredibly complicated.
And these routes are not visa-free, so applicants will need to apply via the host states enabling immigration route. In the UK, the enabling route is the Tier 5 International Agreements Route.
How do we know what preferential rules UK nationals can benefit from under the Agreement?
This is one of the key challenges – usability, and accessibility to the very nationals they are intended to benefit. In our joint report with The City UK – International Trade Agreements and Migration: A Practical Blueprint for Evolution – we encouraged the Government to use this unique moment to modernise the trade and migration interplay and press ahead with earlier plans to enable broader worker mobility between the EU and the UK. That seems possible still, albeit through bilateral agreements post ratification of the trade deal. However, nothing will happen very quickly.
Our joint recommendation for greater clarity on usability is in fact built into the Agreement with a separate section on procedural commitments. But the devil is in the detail. Whilst welcome, some of the commitments, such as the commitment to process intra-company transferees ‘within 90 days’, will not deliver tangible benefit to business.
Does any of this impact movement into/from Ireland?
No, neither the Common Travel Area nor the mutual rights of UK and Irish nationals are impacted.
What about the UK-Swiss Mobility Agreement?
This is a very helpful Agreement, impacting temporary stay for service providers. In agreed sectors, it allows UK service suppliers to work in Switzerland for up to 90 days in a calendar year without a work permit. Swiss service suppliers can deliver contracts in the UK in skilled sectors through the Tier 5 International Agreement Route. The Agreement also establishes a working group, through which the UK and Switzerland will aim to agree on the mutual recognition of professional qualifications for service suppliers working in each other’s markets
Cross-impact with pandemic travel restrictions
Before the latest lockdown restrictions, we saw a flurry of final moves in the UK and EU to ensure rights of residence were properly established by 31 December 2020, particularly as many have been working from alternative locations during the pandemic lockdowns. Despite the Agreement, there are now heightened, deeply practical physical barriers with COVID-19 restricting movement to and within many European countries. With freedom of movement at an end, cross-border work and business travel will need to take a different shape. Breaking 40-year + habits won’t come without compliance risk – properly communicated policies around travel and immigration compliance risk will be needed / need to be updated in light of the Agreement.
Does the Agreement mean that UK residents are not hit by pandemic travel restrictions into the EU?
The UK is not on the European Council’s ‘safe travel’ list – nor is it likely to be given current situation. But, be aware that:
- The recommendation is not binding
- Member States can override it and they can be more, or less, restrictive
- A stark example of a more restrictive approach was the sudden decision by France and others to close borders to UK residents on 20 December 2020
- In any event there are exemptions: business travelers, highly qualified third-country ‘necessary’ workers, frontier workers, imperative family travellers, travellers for study are typically able to travel – so look for relief in the detail.
What about UK inbound travel?
The UK imposed its first pandemic travel ban on Christmas Eve, for visitors arriving into England who have been in or transited through South Africa in the previous 10 days – they will not be permitted entry and direct flights are banned. Again, there are exemptions from the ban: British and Irish nationals, visa holders and permanent residents, will be able to enter but are required to self-isolate for 10 days along with their household. Now that the UK has taken this first step, it is possible we will see further such restrictions. The exemptions will however provide some relief and proposed PCR negative testing requirements may offer some flexibility.
Where do we go from here?
The pandemic and this new relationship with the EU conflate to present challenges you would expect – confusion, unfamiliarity with (or misunderstanding of) complex new rules, susceptibility to sudden pandemic-driven travel restrictions. These challenges are more complex for EU-bound travel with 27 sets of rules to navigate and the separate Swiss-UK Mobility Agreement to understand. The UK’s 2021 immigration system is in force, and the UK continues to update its immigration rules.
What do you do with all of this?
Look for those provisions that will help your business – and use them. Make sure that relevant teams and stakeholders are aware of nuances and exceptions so you are not taking a more difficult path than needed. And expect some evolution – not in the Agreement – but possibly in separate mobility agreements – as in the case of Switzerland – which should bring easements as we head into spring.