On 10 December 2020 the government plans to launch the new frontier worker permit scheme to give frontier workers a means of retaining their right to work in the UK following the end of the implementation period.
Essentially frontier workers are European nationals who are employed or self-employed in the UK but who live abroad. As they are not UK resident, they may not be eligible for settled or pre-settled status under the EU Settlement Scheme.
Employers of cross-border workers or businesses which rely on self-employed European nationals who are resident overseas but who work in the UK from time to time should therefore consider whether these individuals will require frontier worker permits to enable them to continue to work in the UK.
Why does the UK need a new frontier worker permit?
Once free movement for European nationals and their family members ends at 11pm on 31 December 2020, frontier workers from the EEA and Switzerland will need a to apply for a frontier worker permit to retain their status as a frontier worker.
The frontier worker permit scheme
We understand that thefrontier worker permit scheme will be open for applications from 10 December 2020 from those with frontier worker status. Applications will be free and can be made online from inside or outside the UK. Irish nationals will not need to apply as they will still be able to enter the UK and work here under the existing Common Travel Area arrangements.
Importantly, only individuals who are frontier workers before 1 January 2021 and who continue to work as frontier workers until they submit their application will be able to apply under this scheme.
It is anticipated that the rules will be relatively complex but broadly individuals will be eligible to apply under the frontier worker permit scheme if they:
- Are an EEA national (including Swiss nationals)
- Are not primarily resident in the UK
- Are either a worker in the UK, self-employed in the UK or a person who has retained the status of being self-employed or a worker under the relevant legislation
What does “not primarily resident in the UK mean”?
Our understanding is that someone will be treated as "not primarily resident in the UK" if, at a "particular point in time", they have either:
- Been present in the UK for less than 180 days in the 12-month period immediately before the relevant date.
- Returned to their country of residence at least once in the last six months or twice in the last 12 months before the relevant date, unless there are exceptional reasons for not having done so.
We are awaiting the published guidance as to how much time someone must have spent in the UK and how much work they must have done here in order for them to be regarded as being a worker or self-employed in the UK. Under EU law the work undertaken in the UK must have been genuine and effective but it is not yet clear how this will be interpreted for the purposes of the Frontier Worker Permit scheme.
When do frontier workers need to apply and how long is the permit valid for?
There is no deadline by which workers need to make an application, but we would encourage workers to apply as soon as possible and certainly by 30 June 2021. There is a grace period from 1 January 2021 to 30 June 2021 during which frontier workers may continue to come to the UK without having obtained their frontier worker permit. However, from 1 July 2021 frontier workers will need to hold a valid frontier worker permit under the new scheme in order to enter the UK as a frontier worker.
A frontier worker permit, if granted, will be valid for five years for workers or two years for the self-employed. However, it only provides a right of admission to the UK and cannot be used to obtain settled status or settlement in the future. It can however be renewed if the eligibility requirements are met.
Options for businesses with existing frontier workers
Applying for frontier worker status
Employers of individuals who carry out work in the UK but who are not resident in the UK should consider whether their workers should apply for frontier worker permits under the new scheme.
Applying for pre-settled status under the EU Settlement Scheme
Alternatively, in some cases, it may be more appropriate for frontier workers to apply under the EU Settlement Scheme. The EU Settlement Scheme is generally broad enough to capture frontier workers as applicants only need to show that they have been present in the UK before 11pm on 31 December 2020 to be granted pre-settled status.
A successful application for pre-settled status under the EU Settlement Scheme will entitle the individual to live and work in the UK for five years. However, it is not possible to extend pre-settled status at the end of the five years. The EU Settlement Scheme is aimed at individuals who are resident in the UK and where, after five years’ continuous residence in the UK, the individual is likely to be able to apply for settled status. However, continuous residence means that the individual must spend at least six in every 12 months in the UK. For this reason, frontier workers who spend the majority of their time outside of the UK should consider carefully whether they should rather apply for a frontier worker permit, which is aimed at those who are primarily resident overseas.
Frontier working after 1 January 2021
If businesses wish to transfer European nationals to the UK to work here from 1 January 2021 on an ad hoc or temporary basis (e.g. for a construction project) they should consider whether the person has previously lived or worked in the UK before 1 January 2021 and therefore whether they are eligible to apply under the EU Settlement Scheme or for a frontier worker permit. However, if the individual is not eligible to apply under either route the individual will need to apply for immigration permission under the new points-based immigration system. In most cases, a UK entity will need to employ and sponsor the individual as a Skilled Worker and the UK entity will require a sponsor licence. Further details of this route are availed here.
What does this mean for employers?
Many employers, particularly in industries such as construction and professional and banking services, will welcome the introduction of the frontier worker permit as a means of allowing mobility for some employees to continue to come and work in the UK on an ad hoc basis.
We await the published guidance for further details as to how the scheme will operate in practice.