Employment and Immigration Law Update – Frontier workers

On 10 December 2020, the Home Office released a new online form for frontier workers to be able to apply for a work permit. Essentially this is intended to cover the situation whereby an EU worker lives abroad (not necessarily within the EU), but works in the UK on a regular basis. This scheme is aimed at people who are not UK resident and so do not qualify for pre-settled or settled status under the EU Settlement Scheme.

The applicant must be:

• an EU, EEA or Swiss national
• not primarily resident in the UK; and

either:

• a worker in the UK; or
• self-employed in the UK; or
• a person who has retained the status of employed or self-employed.

The applicant must meet the above criteria by 31 December 2020 and continue to meet the criteria up to submitting an application. Family members are not covered by the Frontier Worker Work Permit.

There are a couple of key dates; until 30 June 2021, frontier workers (who are employed in the UK by 31 December 2020) can continue to enter the UK using their valid EU national identity card or national passport. From 1 July 2021, frontier workers must hold a valid Frontier Worker Permit, as well as their valid EU passport or National ID card, to enter the UK as a frontier worker.

The route covers those who are employed or self-employed, but the work they are undertaking in the UK must be ‘genuine and effective’. The caseworker guidance provides more detail on this. Employment will be considered genuine and effective if it is not ‘marginal and ancillary’. Examples of marginal and ancillary work include attending meetings or interviews, negotiation and signing a deal or contract where the work in not carried out in the UK, or being briefed on requirements of a UK customer. These are all activities which would usually be covered by a business visit arrangement. In all cases the caseworkers will need to see evidence of the employer-employee relationship, such as a contract of employment, wage slips etc.

Self-employed individuals must be working for themselves and generating an income in an ‘established’ self-employed capacity. Their work must also be deemed to be both genuine and effective and ‘stable and continuous’. The Home Office is essentially looking at how long the individual spends in the UK and whether the activity is regular and if the individual will return to the UK to carry out work after each period of economic activity in the UK. If the individual carries out short-term, temporary, irregular and unstable self-employed activity in the UK, the Home Office deems that they are a service provider rather than a self-employed frontier worker.

To qualify under the scheme, it must be clear that the applicant is not primarily resident in the UK. Therefore, they should be present in the UK for less than 180 days in any 12-month period and unless there are exceptional reasons for not having done so, they have returned to their country of residence at least once in the 6-month period or twice in the 12-month period at any particular point in time (i.e. on a rolling basis).

To qualify as a frontier worker, the individual must continue to be engaged in genuine and effective economic activity in the UK as a worker or self-employed person at least once in every rolling 12-month period (or have been unable to do so due to COVID-19).

Suitability and criminal convictions will be considered in the processing of the application.

The Home Office will inform the applicant of their successful application. The Frontier Worker Work Permit will be valid for five years initially. The Work Permit will be a physical document which is sent to successful applicants within 10 days of a successful application being notified.

We see a number of areas where the Frontier Worker Permit may be useful, but in particular we anticipate it may be used by seasonal agricultural workers or factory production workers who work over specific periods in the UK.

Further information on the scheme is available from the Immigration Team.

This article is from the December 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For more details regarding any of the matters covered in this update, please contact a member of our Immigration Team.