The EU-UK Trade & Cooperation Agreement ("TCA") is the 1,246-page end result of the trade deal finally reached between the UK and the EU on Christmas Eve 2020. The European Union (Future Relationship) Act 2020 was passed, which provides for the domestic implementation of the TCA. The TCA has not been fully implemented yet so there is limited guidance on the full requirements where permission is required before travel.
Free movement of people between the UK and EU ended on 31 December 2020. In this article, I hope to raise awareness of the potential obstacles employers now face when sending their UK national employees to the EU for business purposes. 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 of this year.
The provisions relating to temporary business activities can be categorised into the following 5 areas under the TCA:
- Contractual Service Providers or "CSPs"
- Independent Professionals or "IPs"
- Intra-corporate transferees
- Business visitors for establishment purposes
- Short term business visitors
The TCA contains provisions on temporary mobility rights and replaces 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.
Standard Business Visitors: The EU has already taken the decision to allow UK nationals short-term visa free visits of up to 90 days within any 180-day period to an EU Member State, as of 1 January 2021. The UK in return has also decided to permit EU nationals to enter the UK visa free for short-term visits of up to 6 months so long as the "permissible activities" of a visitor are followed. If a UK national wishes to enter and work for periods exceeding 90 days, then it is expected a visa within that Member State is obtained with a number of exceptions.
Intra-Company Transferees: The EU and the UK have agreed a broad range of reciprocal commitments facilitating the ability of companies located in the UK or in the EU to transfer certain employees as intra-company transferees to work in an associated company located in another Member State. As intra-company transferees constitute temporary migration, the maximum duration of such transfers from the UK to the EU is capped at three years, and from the EU to the UK is capped at five years. Each Member State reserves the right, however, under the relevant Annex to the Agreement whether to insist upon the need for a formal visa in accordance with the domestic laws of that country.
Contractual Service Providers "CSPs" and Independent Professionals "IPs": The Agreement also facilitates the movement of "contractual service suppliers" or "independent professionals" to supply services under certain conditions. These individuals would be providing services beyond the "permissible activities" of a standard visitor for either entry into the UK or the EU.
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 the Agreement to regularise stay in the UK. Domestic laws of the EU Member State will prevail once again within the Annexes to the Agreement on whether a visa will be required which are listed as "country-specific reservations."
For CSPs the individual in question must have worked for the UK company in the same type of services for at least 12 months and have the necessary qualification (e.g. at least three years of professional experience, a university degree or a qualification demonstrating knowledge to an equivalent level). IPs must also possess at least six years of professional experience, a university degree or a qualification demonstrating knowledge to an equivalent level. Contractual Service Suppliers and Independent Professionals are the most restrictive routes of entry as they contain additional restrictions in the form of an economic needs test depending on the sector and host country.
For IPs recognition of qualifications in a Member State will change. As members of the EU and the EU Single Market, UK nationals and EU citizens holding a qualification from the United Kingdom previously benefitted from a simplified – in some cases automatic – recognition regime in other EU countries. This allowed professionals such as doctors, nurses, dental practitioners, pharmacists, veterinary surgeons, lawyers, architects or engineers to supply services across the European Union, including in the United Kingdom.
As of 1 January, as a general rule, UK nationals, irrespective of where they acquired their qualifications and EU citizens with qualifications acquired in the United Kingdom need to have their qualifications recognised in the relevant Member State on the basis of each country's existing individual rules. The Agreement nevertheless foresees a mechanism whereby the EU and the UK may later agree, on a case-by-case basis for specific professions a mutual recognition of certain professional qualifications.
How can we prepare for the new immigration system?
Consider the need to apply for a sponsor licence to the Home Office. This is a requirement for any business wishing to recruit from either the EU or outside the EU to Northern Ireland. Over 31,000 companies in the UK already hold a sponsor licence with the Home Office for hiring global talent. This licence can be used for recruiting both EU and non-EU nationals with no limitations on the number of employees employed through the licence. With the end of freedom of movement from 11pm on 31 December 2020, there will be a mandatory requirement for a sponsor licence to be held with the Home Office for hiring any EU or non-EU nationals.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Business and Private Immigration team at Cleaver Fulton Rankin for further advice or information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
