Out-Law Guide | 23 Mar 2021 | 9:20 am | 4 min. read
Following Brexit and the end of the transition period at the end of 2020, there are a plethora of immigration challenges for employers with globally mobile workforces. One of those challenges is around the rules applicable to business visitors.
In this guide we examine some of the main issues UK employers should be exploring before a business visit takes place.The UK business visitor rules now apply to both EU and non-EU nationals. EU, EEA and Swiss national visitors can enter the UK for business purposes, for up to six months at a time, without needing to apply for a visa in advance.
The permitted activities of business visitors in the UK are limited.
Business visitors are not permitted to take employment in the UK and this includes things like carrying out their day-to-day role for their employment overseas or providing short term cover for a role in the UK. They are, however, able to undertake certain permitted activities. These include things like attending pre-arranged business meetings and site visits, or being briefed on the requirements of a UK based customer, provided any work for the customer is done outside of the UK.
Separately there are also various intra-corporate provisions which carve out activities that an employee of an overseas based company can undertake in the UK as a visitor.
As more employees work remotely as a result of Covid-19, it is important for employers to carry out an assessment of the substantive activities an employee will carry out on their trip and that the employee is carrying suitable evidence of the nature of their visit with them when they travel.
Whilst checking emails or taking the odd call could be considered incidental to a person's visit to the UK, an individual undertaking their overseas role remotely from the UK may require a visa under the points based system which allows for work. Where the lines appear blurred, we recommend seeking legal advice in advance of any travel taking place. These activities can also give rise to wider considerations such as in the context of employment law, tax, and data protection which employers may also require guidance on.
The UK government is taking an increasingly hard line in relation to business visitors' eligibility to enter the UK. For example, recent tweaks to the visit visa rules have made it much harder for those with a criminal record to visit the UK. Certain previous convictions, even those of a non-custodial nature, will lead to a mandatory application refusal or refusal of entry. This means it is important to consider such issues in advance of a visit to the UK to explore whether grounds for refusal are likely to arise and a business visitor's entry to the UK denied.
Another core consideration is the location of payment. There are specific provisions governing how business visitors can be paid when visiting the UK in this capacity – in most circumstances payment from a UK source is prohibited, with limited exceptions.
Visitors can usually enter the UK for up to six months per visit. However, advance consideration should be given to the duration of the trip as the longer the intended visit, the increased likelihood there is of the visitor being questioned about whether this is genuinely a trip falling into the business visit category. Obtaining a work visa may be more appropriate for longer or frequent trips to the UK.
Before travel, employers should check the exit requirements for the country the employee is travelling from and the UK entry requirements. Travel restrictions, quarantining and testing requirements are fast evolving. These should be considered in advance to ensure the duration and purpose of the trip remains viable in light of applicable requirements both in the UK and the home country.
The general rule is that business travellers can spend no more than 90 cumulative days in any 180 days undertaking business travel across the EU. However, permissible business activities are not uniform across all of the EU member states and so the precise immigration requirements of the destination country need to be checked in advance.
Where permission to work is required, obtaining a work visa or residency permit can take many months in certain EU countries and so careful forward planning is crucial.
This agreement contains certain welcome provisions around business mobility, particularly in relation to contract service suppliers, business travellers and independent professionals. Employers should be mindful that these provisions do not apply uniformly across each of the member states, with some requiring that economic needs tests are completed and visas granted in advance.
There are a number of alternative options which may assist employers in facilitating travel. The frontier worker permit is one alternative option, as is obtaining a status via the EU Settlement Scheme, for those EEA nationals who are eligible. Similarly, where activities can vary during visits, securing a sponsored work visa – where eligible – can remove any ambiguity or concerns around that.
The rules around business travellers have always been tricky to navigate for employers. From an immigration perspective, the end of free movement between the UK and EU, ensures this remains the case.
Employers should ensure they are conducting a full assessment or seeking legal advice in relation to business travellers in sufficient time in advance of their trip to ensure they are taking the most compliant route for the activity which needs to take place.
Falling foul of the rules can lead to illegal working enforcement action being taken against the business and individual concerned, among other potential repercussions.