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Guidance for UK employers with cross-border workers

UK employers with cross-border workers should consider how they can try and retain the services of such employees from January 2021 onwards.

UK employers with cross-border workers – these are EU nationals who commute, for example, between Belgium or France and the UK for work on a weekly basis – should consider how they can try and retain the services of such employees from January 2021 onwards.

Such employees – known officially under the UK / EU Withdrawal Agreement as Frontier Workers or more commonly as cross-border commuters – are not typically entitled to apply for the UK’s pre-settled or settled status under the EU / UK Withdrawal Agreement, as they are not usually UK resident.

The UK Government is introducing a new Frontier Worker Permit Scheme for EU nationals in this position. Whilst the scheme will not be necessary for Irish nationals – as they retain an absolute right to live, work & study in the UK, as the UK retains its historical ‘common travel area’ with the Republic of Ireland – the scheme ensures that other EU nationals (and their UK employers) can continue to benefit from the vital support that these frontier workers provide. The new work permit scheme for these individuals should commence from later this month.

Employers of cross-border workers or businesses which rely on self-employed European nationals who are resident overseas but who work in the UK from time-to-time should therefore consider whether these individuals will require frontier worker permits to enable them to continue to work in the UK.

The Frontier Worker permit process and conditions

Applications under this scheme will be free and will be via an online process. However, the scheme is only available for those who were active frontier workers on or before 31 December 2020 and who continue in such roles in 2021. Individuals eligible for the scheme will be:

  1. EEA nationals
  2. Swiss nationals
  3. Not primarily resident in the UK
  4. A worker or self-employed individual spending some time in the UK each year (for years up to 31/12/20).

General EU law for frontier workers states that the work must be ‘genuine’ and ‘effective’, but how this will be interpreted from a UK perspective for 2021 and onwards is still unclear.

In addition, it is not yet clear what type of evidence HM Government expect to back-up claims to be a frontier worker. In some cases, this won’t be a problem e.g. some workers commuting between the UK and another EU / EEA country would have been paying taxes on their UK workdays. However, not everyone will have been UK taxable and it may in some cases be quite difficult to provide real evidence that some workers have been historically active in the UK in accordance with the EU’s free movement of workers’ principle.

The deadline for applications

Officially, there is not an actual deadline for applying for Frontier Worker Permits. However, it would be good practice for employers to encourage their frontier workers to apply as soon as possible and certainly by 30 June 2021. This is because the official ‘grace period’ for EU workers living / working in the UK ends from 1 July and from that date, frontier workers will need to hold a valid frontier worker permit under the new scheme in order to enter the UK as a frontier worker.

A frontier worker permit, if granted, will be valid for five years for workers (two years for the self-employed). However, it only provides a right of admission to the UK (and the right to work in the UK) and cannot be used to obtain settled status or settlement in the future. It can however be renewed if the eligibility requirements are met on an ongoing basis.

What does this mean for employers?

Many employers, particularly in industries such as construction, agriculture and professional services and those sectors where manufacturing / installation and ongoing service supply are closely interwoven, will welcome the introduction of the frontier worker permit as a means of allowing mobility for some employees to continue to come and work in the UK on an ad hoc basis.

Moreover, it can also help some employers (e.g. smaller companies typically) avoid the costs associated with establishing a formal business presence in the UK and / or also acquiring a full ‘sponsorship licence’ for immigration and work permit purposes.

However, whilst the frontier worker permit arrangement should be welcomed, the late introduction of this arrangement has caused real problems to businesses. Introducing clear guidance for business at such a late stage is hardly a sign that the UK is well prepared for its post-Brexit future.

Would you like to know more?

If you would like to discuss any of the above or have other queries about how you can make the right decisions for the future of your business, please contact your usual Blick Rothenberg contact or one of the partners to the right.

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