13 November, 2020 - 19:57 By News Desk

Immigration rules: Covid meets Brexit

The UK left the EU on 31 January 2020 but since then we have been insulated from the effects thanks to the Brexit transition period. This will end on 31 December, writes Clare Hedges, Legal Director and Head of Immigration, Birketts LLP.

Free movement of people will cease and from 1 January 2021, international recruitment and business travel will look very different. Whilst we may have been distracted by COVID-19 and much has been put on hold due to the pandemic, we should still be planning for what lies ahead.

The end of free movement means that British nationals planning trips to the EU in 2021 will need to comply with the local rules of any EU country they wish to enter. 

It may be tempting to see the EU as a block, in particular those countries which are members of the Schengen area, but individual State competence is expressly reserved for immigration matters, which means each country makes its own rules. 

Whilst the EU is encouraging all of its members to facilitate visa-free entry by British nationals for the purposes of tourism, this does not apply to work trips. 

If you are planning business travel in 2021, you should consult immigration lawyers in your destination country who can advise on local requirements. In the meantime, there is some basic information available online: https://www.gov.uk/government/collections/providing-services-to-eea-and-efta-countries-after-eu-exit

Of course the change also means that EU nationals will become subject to UK immigration rules. 

EU nationals will not require advance entry clearance if they are simply visiting the UK. They can apply for entry at the border. 

They will be able to use automatic e-gates, instead of showing their passport to an entry clearance officer. This means they will not obtain a stamp. It is therefore imperative that travellers keep their own record of their trips, to ensure they comply with the rule that you can only visit the UK for up to 180 days in any 12-month period. 

Employers will also have a vested interest in keeping careful records. Even if an individual is working and paid abroad, overseas business visitors still need to be reported to HMRC.

The current immigration rules (which will be updated soon) allow a range of activities for business visitors. These include attending meetings, conferences and interviews, but business visitors cannot work in the UK. 

You do need to be careful as any allegation of illegal working carries stiff penalties for the employer and the individual and can also prejudice the employer’s Home Office sponsor licence. 

The Home Office will be well aware of potential for EU national business visitors to abuse and break the rules and so we do anticipate an increase in audits and enforcement.

If you need to employ an EU national in the UK in 2021, it is likely that you will require a sponsor licence. Current Tier 2 licenses are being transferred across into the new Points Based Immigration system, but if you do not already have one, you should apply now.

You should also encourage any EU or EEA nationals in your organisation, who are based in the UK, to apply now for settled or pre-settled status under the EU Settlement Scheme. 

There is a grace period to apply until 30 June 2021, but anybody who is eligible to apply should do so as soon as possible. 

It is a straightforward process, completed using a smartphone app. There is normally no need to attend an appointment or send away documents and therefore the process can be completed in a covid-secure manner at home.

The pandemic has led to many employees working remotely, in some cases from abroad. EU nationals who have been spending time outside the UK need to consider what effect this will have on their ability to obtain and retain pre-settled and settled status. 

Whilst many may be tempted to avoid a covid-filled UK winter, they might just discover this is the perfect time to return!

• Feel free to call Clare Hedges on 01223 326 605 or email clare-hedges [at] birketts.co.uk

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