By leaving the EU, the UK has chosen to end freedom of movement of people between the UK and the EU, as of 1 January 2021. This is the most significant change brought about by Brexit as it ends the right of EU nationals to come to live and work in the UK without specific permission to do so, and the reciprocal right of British citizens to live and work in any country in the European Economic Area on the same basis.
What does the EU / UK Trade and Cooperation Agreement say about immigration?
The end of free movement
By leaving the EU, the UK has chosen to end freedom of movement of people between the UK and the EU, as of 1 January 2021. This is the most significant change brought about by Brexit as it ends the right of EU nationals to come to live and work in the UK without specific permission to do so, and the reciprocal right of British citizens to live and work in any country in the European Economic Area on the same basis. As of 1 January 2021, EU nationals will be subject to UK immigration control in the same way as non-EU (third country) nationals, and applications to come to the UK to work, reside or stay long term will need to be made through the new points-based immigration system. See our earlier article on the new immigration rules here.
Those EU nationals already resident in the UK at the end of the transition period on 31 December 2020 are covered by the terms of the earlier Withdrawal Agreement, which allows for their continued right to remain in the UK under the EU Settlement Scheme, so long as they took up residence in the UK before 31 December 2020. The UK rules governing the issue of settled or pre-settled status under the EU Settlement Scheme, Appendix EU, originally a simple document, has evolved into a lengthy and convoluted chapter of the Immigration Rules, requiring extensive internal cross-referencing as well as an understanding of the EEA Regulations.
How easy will it be for professionals to travel between the EU and the UK, and work/practice in the UK and in Member States of the EU?
First, as the UK has refused to include a chapter on mobility, there is nothing in the Agreement that specifically facilitates short-term visits or long-term stays. Does this mean that visas will be necessary for all travel between the EU and the UK? No – the EU had already taken the decision to allow UK nationals short-term visa-free visits of up to 90 days within any 180-day period, as of 1 January 2021. The UK has also decided to allow visa-free short-term visits for EU citizens. Upon arrival, they will issued with permission to stay for up to six months, but as a visitor only: they will not be able to work, join family, or switch their status to enable them to remain on a more long term basis from inside the UK.
What does the Agreement say about long-term stays? UK nationals intending to stay in an EU Member State for periods exceeding 90 days for any purpose (e.g. work, research, study, training) will be able to do so under the conditions for entry and stay for third country nationals set under EU law and the national laws of the Member States. EU citizens intending to move to the UK will need to comply with the applicable immigration conditions set by the UK government, which has introduced, together with the points-based immigration system, rules outside of that points-based system: these include non-sponsored workers such as those entering the UK under the Global Talent route, for example, or as an Innovator or for entrepreneurs under a Start Up visa, and frontier workers. None of these are, however, specifically referred to in the Agreement.
As the UK has chosen to stop free movement of EU citizens into the UK, and has also refused to include a chapter on mobility in the Agreement, it is clear that business travel between the EU and the UK will no longer be as easy as it has been.
The Agreement does not provide extensive detail on travellers between the UK and the EU, though it refers specifically to:
- Intra company transferees: the EU and the UK have agreed on 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 the other 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 (though this is covered by the new rules, and is not in the Agreement). With respect to UK nationals transferred to the EU, this duration includes periods of mobility between Member States, which is in line with current EU practice with other third countries
The Agreement also guarantees that intra-company transferees can be accompanied by their partners and dependants when placed abroad, with minimal administrative burdens. All of this supports the UK government’s new immigration policy, which has the stated aim of ensuring that the brightest and best global talent can come to the UK for business purposes
- Business visitors: the Agreement also facilitates the movement of “contractual service suppliers” or “independent professionals” to supply services under certain conditions. Business visitors not providing services will also be allowed short-term entry in order to carry out certain activities. These include, for example, attending meetings, negotiating and signing deals and contracts, attending trade fairs, for promotional work only (provided the visitor is not directly selling), carrying out site visits and inspections, gathering information for theiremployment overseas– so long as these business visitors are not paid in the member state/the UK for these activities. They also cannot live in either the UK or the member state for long periods of time through frequent visits.
- Independent professionals: does the Agreement provide for the recognition of professional qualifications? 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, which 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, as applicable to the qualifications of third-country nationals as of the end of the transition period. The Agreement nevertheless foresees a mechanism whereby the EU and the UK may later agree, on a case-by-case basis and for specific professions, on additional arrangements for the mutual recognition of certain professional qualifications. For example, the EU Member States and the UK will allow lawyers to provide legal services relating specifically to the practice of international law and the law of the country where they are authorised and qualified to do so.
Social security arrangements for UK workers in the EU – where should these be paid?
The Agreement contains a detailed Protocol on Social Security Coordination which is aimed at providing clarity on where temporarily posted workers should pay social security contributions.
The principal rule remains that it is the place of work which counts: for example, a British national working in Spain for a British company should pay Spanish social security contributions. However, the Agreement acknowledges that this causes an unnecessary burden for employers who have posted a worker temporarily to the EU. Because of this, the “detached workers” rules in the Agreement make it possible for the employer to continue to pay only UK National Insurance and not social security contributions in the EU country to which he/she is temporarily posted.
For these rules to apply, the period of work in the EU state must not exceed two years in most cases, and the destination country needs to have applied the detached workers rules. If it has not applied the rules, social security contributions will be payable in the EU state in which the employee is temporarily working. EU Member States are required to state whether they will apply the rules by 1 February (and any secondments that begin before then will continue to be governed by the existing rules under a transition arrangement).
UK employees seconded to Ireland are subject to a separate social security regime which preserves the current position.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak to your usual Fox Williams contact.