Brexit alert: UK immigration considerations for EU national Directors of the UK companies

With the end of Brexit transitional period getting closer each day, the HR departments of European companies with UK offices found themselves worrying. They were concerned about the UK immigration implications for their staff and Directors.

With the Directors of UK subsidiaries, who are EU nationals and travel regularly between the UK and EU, they need to consider their position after 1 January 2021. Depending on how much time they spend in the UK, their type of activity and whether they’ve been to the UK in 2020 at all, their options differ.

What are the top questions to consider?

• Does the Director intend to be in the UK at least 6 months in each year?
• Has the Director been in the UK before 31 December?
• Does the Director reside primarily in Europe, but visiting the UK regularly for work?
• Does the Director come to the UK office to conduct paid or unpaid work or solely for business meetings?
• Is the EU national Director a new hire at the UK office who has never been to the UK?

We wanted to lay out the most common options for the EU national Directors of European and International companies with a UK office.

1. EU Settlement Scheme for UK residents before 31 December 2020

If the Director has been to the UK before 31 December 2020 and intends to reside mainly in the UK, what are their options? The quickest and cheapest option for them to retain their right to work and live in the UK is to apply under the EU Settlement Scheme. If the Director lived the UK at least 5 years, he/she can apply for a Settled Status to have a permanent right to reside in the UK.

If the Director hasn’t lived in the UK for 5 years or doesn’t have the necessary evidence, he is eligible for a 5-year right to stay in the UK under Pre-Settled Status. Remember however, that it is a, non-extendable, one-off 5-year permission if they don’t qualify for an upgrade to Settled Status. Therefore, the Director needs to plan to spend 6 months minimum in the UK in each year to qualify for Settled status after 5 years of UK residence.

2. Frontier Worker Permit for a continuation of work visits to the UK after 1 January 2021

In other situations, the Director doesn’t intend to spend long periods in the UK always returning to the main residence in Europe. However, they still come to the UK regularly to perform work as a company’s employee or as a self-employed person. This means that they would need to have a right to work in the UK and a possibility to have this permit extended if necessary in the future. In this case, the best option is to obtain a Frontier Worker permit for 5 years (for employees) or 2 years (self-employment) with a possibility to extend it further.

The frontier worker needs to show several things for the application:

• Status of an employee or self-employed person
• Not being primarily resident in the UK
• The need to travel to the UK as part of genuine and effective work
• That you have been in the UK for work before 31 December 2020 and in the 12 months before the application

There are occasions, where a frontier worker has lost their employment or self-employment status but still retained that status afterwards. There are also some occasions, where exceptions allowed to the travelling conditions due to COVID-19 pandemic, but they require submission of additional documents. The requirements for nonstandard applications are complex and we would recommend seeking specific advice for this.

It is important to remember that whilst a frontier worker permit gives a right to stay and work in the UK to its holder, it can be lost, and it doesn’t lead to a settlement. The main advantage of this status over EU Settlement Scheme is that you can extend the permit beyond the initial grant of 2 or 5 years. The deadline for applications is very short with the scheme opened on 10 December, the applicants have only until 31 June 2021 to apply.

3. Business visits after 1 January 2021

If the Director is not required to complete any work in the UK, they may consider coming to the UK on a standard visitor route. After 1 January 2021, all EU nationals will be treated as non-visa nationals, which means they do not need to apply for a UK visitor visa before arrival. They will be granted a visitor leave on arrival either by entering through eGates or via an Immigration officer.

Visitors to the UK can stay for a maximum of 6 months on each visit. They will only be able to do the standard business visitor activities, which are on the list of permitted activities.

What are the standard business visitor activities permitted?

• attend meetings, conferences, seminars, interviews
• give a one-off or short series of talks and speeches provided these are not organised as commercial events and will not make a profit for the organiser
• negotiate and sign deals and contracts
• attend trade fairs, for promotional work only, provided the visitor is not directly selling
• carry out site visits and inspections
• gather information for their employment overseas
• be briefed on the requirements of a UK based customer, provided any work for the customer is done outside of the UK.

However, the business visitors Directors cannot be paid in the UK for those activities. Nor may they do any paid or unpaid volunteering work for UK businesses. They also cannot live in the UK for long periods of time through frequent visits. It suits only for those Directors, who intend to spend minimum time in the UK and do not need to work for the UK entity.

4. Skilled Worker or Intra-Company Transfer Visa after 1 January 2021

Finally, we examine the case of the Director has not been employed or engaged in the UK before 31 December 2021. Or, for any other reason, they are not eligible for any of the post-Brexit related routes for EU nationals, but need to come to the UK for work in 2021. In this case, they will need to apply for a work visa.

What are the options in this case?

1) Skilled Worker route, that has a standard minimum salary threshold of £25,600 and leads to settlement after 5 years of residence in the UK

2) Intra-Company Transfer route with a minimum salary threshold of £42,500 pa and does not lead to a settlement. The latter allows the director to be transferred for short periods and to be paid by an overseas entity.

The work permit route is sponsored, so it is company-specific and would require a company to hold a Sponsor Licence.

If you require assistance with your situation or need an assessment of your options, please contact our experienced immigration solicitors now for a conversation.

For guidance with UK immigration, please contact our experienced immigration solicitors today on 020 7427 5972 or submit an enquiry HERE. You can also get in touch or follow us for similar content on our social media accounts on Facebook, LinkedIn, or Twitter.