The EU-UK Trade and Cooperation Agreement (TCA) was agreed between the parties on 24 December 2020 and sets out how the relationship will be governed going forward. It received a great deal of coverage in connection with issues such as free trade in goods; but one element which may have flown under the radar is around the movement of people. In essence, with effect from 1 January 2021, there is no free movement of people between the EU and the UK. So where does that leave us?
The TCA does not change the settled status scheme for those EU nationals living in the UK before 31 December 2020; with reciprocal agreements being in place for UK nationals who were living in the EU before 31 December 2020.
For any permanent moves, and all other activities which may require a work permit or a visa, the domestic law of the relevant country will still need to be adhered to.
The main change for short-term travel is that UK nationals will be allowed visa free travel to most EU countries, Iceland, Liechtenstein, Norway and Switzerland. This will be the case as long as the stay does not exceed more than 90 days in any 180 day period for visits to any of these countries (for example, 10 days in Spain followed by 5 days in Italy would both be included in the 90 day limit):
- Different rules apply to Bulgaria, Croatia, Cyprus and Romania. If a person was to visit these countries then visits to other EU countries - or visits to Iceland, Liechtenstein, Norway and Switzerland - will not count towards the 90 day total.
- Any stay without holding a valid permit/visa will count for the purpose of the 90 day calculation.
- The "180 days" is a rolling period. This in essence means that the traveller will need to look back on the previous 180 days from the proposed day of travel/each day of the stay to determine if they have exceeded the 90 day allowance. An absence for an uninterrupted period of 90 days will permit a new stay for up to 90 days. Keeping track to ensure that a person does not exceed the 90 days limit within any 180 day period will also be critical; and this is likely to be something that causes employers/employees the most difficulty.
- Where the 90 day limit is exceeded then a visa will be required.
In addition, if anyone is planning on undertaking any "work" whilst abroad (regardless of whether this will be within the 90 day limit) then a visa will be required; although there are certain permitted activities allowed during short term business visits as set out further below.
Short term business visit
This is similar to the business visitor route under the Immigration Rules in the UK although business visitors can stay for longer in the UK under the Immigration Rules than under the TCA.
In summary, a short term business visit under the TCA will allow for short term travel for business purposes as long as the stay does not exceed more than 90 days in any 180 day period. It is only permitted activities which can be carried out. These are set out in the TCA in detail and in the main consist of the following (some EU countries may have their own additional specific restrictions so these will need to be checked prior to any visit):
- meetings, consultations, conferences
- research and design
- marketing research
- training seminars
- trade fairs and exhibitions
- to set up sales (but not to deliver them i.e. no direct selling to the public)
- aftersales or after lease service
- commercial transactions
- tourism personnel
- translation and interpretation
It is not inconceivable that questions may be asked at the border and therefore we recommend that those travelling should keep to hand details of – and preferably documentary evidence of the same - the permitted activity being carried out in, dates of travel, how the trip will be funded, that medical insurance is in place, and details of accommodation.
What other provisions do I need to be aware of?
The TCA also contains the following provisions (some EU countries may have their own variations so these will always need to be checked) which is helpful for both employers and workers to have on their radar:
- Contractual service suppliers – this relates to someone employed by an organisation which is not established in the other country and has a contract for less than 12 months to supply a service to a final consumer which requires the employee to be there temporarily. The permissible length of stay is a cumulative period of 12 months, or for the duration of the contract, whichever is less.
- Independent professionals – this relates to a self-employed person supplying a service to a final consumer in the other country with a contract of less than 12 months and the presence is only temporary. The permissible length of stay is a cumulative period of 12 months, or for the duration of the contract, whichever is less.
The UK Government has implemented the provisions relating to contractual service suppliers/ independent professionals provisions via the T5 (Temporary Worker) International Agreement worker route. Therefore, unless the activity falls within the business visit rules, the UK entity receiving the services will be required to have an A rated sponsor licence for T5 (Temporary Worker). The applicant will also need to be eligible to apply under this route.
- Business visitor for establishment purposes – this relates to a person in a senior position who is setting up an enterprise in the other country. The permissible length of stay without requiring a work permit is up to 90 days within any six-month period.
- Intra-corporate transferees – this relates to someone who has been employed by the company for at least one year (as a manager or specialist) or six months (if it’s a trainee employee) and is a temporary transfer to another organisation that is part of the same group in the other country. The permissible length of stay is for a period of up to three years for managers and specialists, and up to one year for trainee employees.
It should be noted that the UK's Representative of an Overseas Business visa and the Intra-Company Transfer Visa (both of which are broadly similar to the business visitor for establishment purposes and intra-corporate transferee provisions) are currently more generous.
It is clear that the TCA has tried to bring some fairness and consistency for each party (i.e. the EU and the UK) and certainly the above may assist and give some reassurance to those companies/workers who are working on projects across the EU and having to make regular visits abroad. There are nuances within each member state and it is therefore worth taking legal advice at an early stage to fully consider the available options and best approach prior to any visit!
Please note that this article is accurate as at the time of writing. This remains an area which continues to be developed as further clarity is obtained. Please therefore ensure that up to date legal advice is always sought.