This article considers the rights of British citizens to access the Schengen Area as visitors post-Brexit for leisure, business and work purposes. It highlights some of the compliance and planning issues employers and individuals should be aware of.
What is the difference between the European Union and the Schengen Area?
The European Union (EU) is an international political and economic union of 27 countries which issues common economic, social and security policies. Amongst other rights, EU citizens benefit from free movement of workers including the right to access, reside and work in another member state.
The Schengen Area on the other hand was created to enhance the functioning of the internal market with free movement of people (as apposed to workers) between the participating countries by abolishing internal border control whilst simultaneously strengthening and harmonizing external border control put in place for third country nationals, i.e. citizens of countries outside of the European Economic Area (EEA).
The following countries currently belong to the Schengen Area: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland. The following EU member states are not part of the Schengen Area: Ireland, Romania, Bulgaria, Cyprus and Croatia.
Are British citizens entitled to access and reside within the Schengen Area?
On 10 April 2019, the EU decided to add the UK to the list of third countries whose citizens can travel visa-free to the Schengen Area, effectively ensuring visa free travel after the end of the Brexit transition period on 31 December 2020.
In the absence of EU-derived free movement rights, British citizens can access the Schengen Area and reside on the territory of the countries of the Schengen Area for a duration of no more than 90 days in any 180-day period without having to apply for a short-term visa (the so-called 'Schengen visa' or 'visa type C').
In order to be able to reside longer than 90 days in any 180-day period, a British citizen must apply for a long-term visa ('visa type D') or immediately obtain a residence permit in the country where they intend to reside after the 90-day period comes to an end.
How is the 90/180-day rule applied in practice?
In order to be able to access or reside within the Schengen territory without a visa type D or a local residence permit, a British citizen must ensure that their stay on the territory of the Schengen Area never exceeds 90 days in a rolling period of 180 days.
To correctly apply this rule, two factors need to be monitored:
- The duration of Schengen Area stay: each day the British citizen stays in a country belonging to the Schengen Area will count towards the 90 days credit including the day of arrival and the day of departure.
- Timeframe: the maximum credit of 90 days must be observed within a moving period of 180 days, effectively preventing the possibility to reset the credit by leaving the Schengen Area for a short duration.
The European Commission has issued a tool to assist employers and individuals with the calculation of the 90/180 days.
The 90/180-days rule can be applied in different ways including:
- Control (internal audit, border control or inspection services):
- Can a British citizen be refused access to the Schengen Area at a certain date?
- Can a British citizen legally reside within the Schengen Area based on his passport at a certain date?
- Planning (by the individual or global mobility HR):
- Will the British citizen need a visa type D in order to access the Schengen Area at a certain date in the future?
- Will the British citizen need to obtain a residence permit during the envisaged period of stay within the Schengen Area?
The following factors should be taken into consideration:
- Every day spent in a country belonging to the Schengen Area has to be taken into consideration regardless of the reason of the stay (i.e. both business and leisure)
- Every day spent in a country belonging to the Schengen Area has to be taken into consideration regardless of the time of arrival or time of departure (i.e. part days)
- The relevant timeframe to apply the 90 days credit is 180 days which does not always coincide with six months.
Which sanctions can be applied if a person overstays?
If a British citizen does not comply with the 90/180-days rule and has not applied for the required long-term visa and/or residence permits in time, they will be considered an illegal third country national.
In the absence of a common policy on penalties, sanctions will vary depending on the duration of the overstay, the purpose of the stay and the country establishing the breach. In general, the following sanctions can be applied:
- Criminal or administrative sanctions including fines for the British citizen and/or their employer;
- Deportation and/or temporary re-entry ban; and
- Refusal of future visa requests/work permits.
Are British citizens entitled to work in the Schengen Area?
There is a general misconception that the visa exemption for the Schengen Area also covers the right to work within the Schengen Area. It does not.
British citizens are not automatically entitled to work in the Schengen Area based on their passport. The visa exemption is exclusively related to the right to access the Schengen Area and the right to reside within the Schengen Area.
The right to work will have to be verified based on the applicable legal framework in each jurisdiction.
Although the Trade and Cooperation Agreement concluded between the EU and the UK provides for a limited number of work permit exemptions for short-term business visitors, local access to the labour market in each Schengen Area member country should always be verified, taking into account the circumstances and nature of the activities.
What should we do to ensure compliance with the applicable legal framework from an employer point of view?
As soon as a British citizen is required to perform work within the Schengen Area, either under an employer-driven temporary cross-border assignment or an employee-driven temporary agile work arrangement, a screening and verification process should be initiated.
Firstly, the Schengen Calculator should be used as a 'planning tool' to verify the residence-related requirements (i.e. British passport with at least three months' validity beyond the end of the proposed visit, visa type D or local residence permit).
Because both business and personal travel must be taken into account, an employer may have a legitimate reason to monitor an employee's recent and proposed travel to the Schengen Area for both purposes. Failure to correctly monitor all travel to the Schengen Area may disrupt necessary business travel and/or may lead to potential liabilities to the employer for overstay. This can be a serious issue for an employer, particularly if the employee is senior or required to travel for business-critical reasons. From a data protection perspective, employers should ensure they are transparent about the proposed monitoring by clearly explaining the extent and reasons for the monitoring.
In addition, any work-related requirements should be assessed (i.e. exemption or authorisation to work) to enable the envisaged activities to go ahead within the different countries of the Schengen Area.
The timing and scope of business or work-related activities can be significantly impacted if additional residence- and/or work-related requirements are identified late in the travel planning process. To avoid delays or other logistical issues, it is therefore recommended to start this screening and verification process as early as possible.
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.