Home working overseas – employers alerted to immigration hurdles as request numbers rise

Out-Law News | 10 Nov 2020 | 2:40 pm |

Jo Hennessy tells HRNews that employers allowing staff to work overseas may face significant immigration hurdles
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  • Transcript

    Last week, and this week, we have been looking at various issues which arise when employees work from home, when home is outside the UK. As we all know, Covid-19 has resulted in an unprecedented amount of home working but the issue of employees working from a base outside the UK is something that we see a lot  but, perhaps surprisingly, is has not received a lot of press attention. It arises when employees work from abroad either because that country happens to be their home nation or, in some cases, because their family is based there. If that situation does arise then you need to be aware of three potential problem areas before you agree to the request, namely tax, immigration and employment law. Last week we heard from Chris Thomas explaining the tax risks – so the tax liabilities arising under UK law obviously, but also potentially liabilities arising by virtue of the tax laws of the foreign country. Earlier this week Anne Sammon addressed the main employment law implications of working abroad, explaining a number of the points which were raised in the article we highlighted by People Management asking: “How should HR deal with requests to ‘home work’ from overseas? Anne stressed the fundamental point that you really do need to understand fully the employment laws of the country your employees are visiting– she said that was the biggest mistake she is seeing right now. The other potential problem area HR needs to be alive to is immigration, so let us turn to that now. There are a number of complications when someone chooses to travel overseas to work for a period of time, and those problems are amplified if they get stuck there. To understand more about this I phoned immigration specialist Jo Hennessy who is based in Glasgow:

    Jo Hennessy: "This is an issue that we are seeing quite a lot of, primarily triggered by the ongoing Covid-19 pandemic. So a number of people are working remotely from home in any event, and some people are choosing to travel overseas and be located somewhere else for a period of time and some people have gone overseas and then are stuck there and that presents some issues, both in the country that they're moving to, and if they've come from the UK, depending on what their nationality and immigration status is in the UK, it can throw up some considerations on this side as well. The first question to always really consider is, are they a national of the country that they're travelling to, and that they're going to be based from and that will then really dictate what immigration considerations might apply in that particular jurisdiction and the rules as to what immigration permission is required and what activities are permitted and different immigration routes definitely vary from country to country so that is something to bottom out. Obviously, if they're a migrant, and they're returning to their home country and working there for a period of time, then immigration issues will be less of a concern and the focus will be any potential impacts upon their immigration position within the UK whilst they're out of the country. So that should be really considered from the outset. Ideally, if they do need permission for that country, it would be a question of working out what type of visa do they need, if any, what activities are they permitted to undertake to avoid any implications for the individual but also, potentially, for their business in that jurisdiction. It’s also worth considering if they are a migrant with time-limited permission in the UK, what impact a period of absence could have on their longer term options. So if they're in a route in the UK that could eventually lead to indefinite leave to remain, then they'd be wise to keep an eye in their absence levels from the UK. If those start to tot up and become more significant then in conjunction with other absences that they might have previously had from the UK, that could essentially break their continuous residence here and cause problems for a settlement application further down the line, which often as the longer term goal, so it's worth not losing sight of that piece, and just their options in the future and how they may be impacted. Similarly, if they are a migrant that is sponsored by their employer in the UK - so at the moment, that would be non-European migrants that are sponsored - then it's really important for the employer to be mindful of your ongoing sponsor duties, and ensuring that they continue to have sufficient oversight of them to meet their sponsor reporting and record keeping duties and obviously if it becomes a more permanent arrangement then consideration would need to be given to whether it's appropriate for them to remain sponsored in the UK, and whether they would want to have the ongoing responsibility for that. If they're European or Swiss national migrants in the UK, and they're travelling overseas, then there would be an argument for them, if they haven't already, to try and cement their status in the UK by applying under the EU settlement scheme if they're eligible to do so. Which means that they will avoid any potential difficulties and headaches when they come to re-enter the UK in the future, so they already have that status and essentially preserving their free movement rights that they currently have from January 2021 afterwards. A final piece, really, to keep in mind is just we are seeing a lot of people who are potentially travelling what was initially intended to be a shorter term trip or visit and with rolling lock downs coming back with Covid-19 and travel restrictions and quarantine requirements, that's often becoming a more long term arrangement. If somebody is stuck overseas on a much longer term basis, and they're in a time limited immigration route in the UK, they just need to be mindful that their visa could expire while they're outside the UK. So their visa is expiring imminently they need to be quite careful. The normal rule would be that you need to be extending your visa within the UK before it expires. So they don't want to find themselves in a position where their permission has lapsed whilst they are outside the UK and they then have to apply afresh. So that's just another warning point to be careful of as timescales slip going forward.”

    We should say, the other big immigration issue is, of course, the new immigration system which takes effect from 1 January. Jo has written a number of detailed guides on that and you can find all of them on the Outlaw website – all of which are kept up to date of course.