Spotlight on cross border working risks across the UK and Ireland

For employers operating across the UK and Ireland, moving staff between the two jurisdictions can seem straightforward. But when it comes to immigration compliance, ease of travel does not necessarily mean a right to work. As employers face increasing scrutiny of right to work compliance and significant penalties for getting it wrong, many businesses are revisiting something that is often misunderstood: the Common Travel Area. For employees who are not British or Irish citizens, permission to live and work in one country does not automatically give them permission to work in the other. We’ll speak to a Dublin based immigration lawyer about where the risks arise and what employers need to understand.

The Common Travel Area is a long standing arrangement covering the UK, Ireland, the Channel Islands, and the Isle of Man. It gives British and Irish citizens broad rights to live and work across the area and makes travel between the UK and Ireland much more straightforward. But it does not create a single immigration system. The UK and Ireland continue to operate separate immigration regimes, with their own rules on visas, work permissions, and compliance.

That distinction can create problems for employers. An individual may be able to travel easily between the two jurisdictions and, in some cases, may encounter little or no visible border process at all. But that does not mean they automatically have permission to work on both sides of the border. The position becomes particularly important where employees travel regularly between the UK and Ireland, or where employers rely on business visitor arrangements without fully considering their limits.

So where are the limits of the Common Travel Area, and what should employers understand before moving staff across the UK Ireland border? Earlier I spoke to immigration layer Louise Shaw who joined me by video link from Dublin. I started by asking her what the Common Travel Area does, and just as importantly, what it does not do.

Louise Shaw: “The Common Travel Area is a really useful area but it does have limits. 
Geographically the Common Travel Area covers the UK, Ireland, the Channel Islands, and the Isle of Man, and it allows for freedom of movement and residence and work for British and Irish citizens within that geographical area. It also allows for much more relaxed travel for everyone within that geographical area but it doesn't permit the right to work for other individuals who might be living in Ireland or living in the UK. If they're not British, not Irish, they don't automatically have the right to work in the other country and that can be a point of confusion just because of the ease of travel within the different countries. So, for example, somebody who has a UK Skilled Worker visa living and working in the UK can fairly easily travel to Ireland and they may not even get their passport or their visa checked, depending on which route of travel they take, but that doesn't automatically mean that they have the right to work in Ireland – that will depend on the Irish immigration rules. So in some situations that person would have the right to work in Ireland. For example, somebody on the UK Skilled Worker visa who is from a European country, is a EU citizen, would have the right to work in Ireland but that is by virtue of Ireland being part of the EU and that's to do with the Irish immigration system, it’s nothing to do with that person's UK Skilled Worker visa. Likewise, somebody on an employment permit in Ireland would not automatically have the right to live and work in the UK even though it's very easy to travel there, and even for temporary work that person would need to make sure, and their employer would need to make sure, that they have the correct permission to work in the UK if they need it.”

Joe Glavina: “Why do those problems arise for employers moving staff across the UK-Ireland border?”

Louise Shaw: “The problems arise because a lot of the time there is no border, no physical border, and certainly between Ireland and Northern Ireland it's very, very, easy to travel between the two countries. Belfast and Dublin are only two hours apart and there are no border checks so it would be very easy for an employee living and working in Dublin, for example, to pop up to Belfast and start working there but they are then subject to the UK immigration rules in Belfast and if the person is a permit holder in Ireland, and is not a British or Irish citizen, then then they may well require some sort of work permission for working in the UK. So it's a real pitfall just because travel is so easy within the Common Travel Area, but that doesn't mean that the person has the right to work, necessarily. Another common pitfall would be the rules around the business visitor rules. So both the UK and Ireland have separate immigration systems but they both have business visitor rules that allow for visits for business purposes such as attending meetings, or site visits, that sort of thing, but what they don't permit is work, essentially, filling a space in the local workforce, even temporarily, providing services, those sorts of things in both countries require work permission. Another issue is that some nationalities in both countries would require a visa that you have to apply for in advance to allow that person to work, even to visit as a business visitor, For certain nationalities we don't need to apply in advance, which actually can perhaps cause more confusion because the employee themselves wouldn't realize that they are still subject to the business visitor rules. So this all creates the risk of an employee working in either country without permission. In the UK, there are very strict rules on exactly the type of check that an employer needs to do, where the person is working, not just attending meetings and complying with the business visitor rules. If they are actually working in the UK, the employer needs to do a very specific check of their right to work before that person commences any work in the UK and the fine for getting that wrong and not doing that exact specific check could be up to £45,000 even for a single mistake so it's very hefty for employers, particularly if processes aren't in place and a number of mistakes are made. In Ireland, there is also the requirement to do checks. The checks aren't quite as specific but an employer is required to take reasonable steps to check that somebody has the right to work. If they don't, then there are fines as well in Ireland and in a worst-case scenario in Ireland it is actually a 250,000 euro fine, but that would be for criminal liability where an employer was employing someone knowingly. More likely, perhaps, is mistakes happen, or checks just aren't routinely being done, and the Workplace Relations Commission can conduct an audit and issue fixed penalties of up to 3,000 euros, but that would be per issue, and there can also be fines for issues such as failing to keep records. So that could add up if it's a systemic issue across the workforce.”

Joe Glavina: “Are there situations where employers can legitimately use CTA arrangements to facilitate travel between the two jurisdictions?”

Louise Shaw: “Yes, absolutely. The Common Travel Area is extremely useful. It is obviously very, very useful for British and Irish citizens. As you might be able to tell, I'm British, but I'm sat here in Dublin and I'm working here and I don't need any work permission to do that, so that's great, the economies are very intertwined and it creates that ease of travel for British and Irish citizens. It’s also very useful for those employees who do perhaps require either a work permit in Ireland, or a Skilled Worker visa in the UK. It's still relatively easy to travel between the two countries and conduct business visitor activities, attend meetings, etcetera, of course with the reminder that for certain nationalities you would still need to apply for a business visitor visa in advance, but the actual logistics of travel and the speed that you can move between the two countries is quicker due to the Common Travel Area. There is also the British-Irish Visa scheme for Chinese and Indian nationals which is one of the only examples of a single visa that can be used across the Common Travel Area and that can be used for business visits. So for those individuals from India and China it reduces the need to apply for two visas if they're traveling across the Common Travel Area. So it is really useful as long as you understand its limits and don't just assume that it permits work across the two countries.”

So the key takeaway for employers is that the Common Travel Area makes travel between the UK and Ireland easier, but it does not create a single immigration system. Employers still need to ensure that employees have the correct permission for the activities they are carrying out in each jurisdiction. If you would like help navigating those issues, please do contact Louise – her details are on the screen for you.