IMPACT – HIGH

While the end of free movement will make travel, migration and work authorization more complex for U.K. nationals in the EU and EU nationals in the U.K., the recently approved Trade and Cooperation Agreement does provide some clarity for business travelers, intra-corporate transferees, contractual service suppliers and independent professionals.

Key Points:

  • Short-Term Business Visitors. Under the agreement, U.K. business travelers will be able to visit the EU and the Schengen Area visa-free for up to ninety days in a six-month period. The U.K. will be bound by this provision as well; although, under its current law, the U.K. already allows EU nationals to visit on business for stays of up to six months without needing to obtain a visa.

The deal ensures that a list of permitted activities can be performed without the need to obtain a work permit or submit any form of economic needs test or other pre-travel approval. The agreement overrides the current national immigration legislation in member states for third countries, which differs so in practice, there may be some adjustment required and administrative disruption while the rules are transposed and implemented.

The permitted activities included in the agreement include but are not limited to:

  • Meetings and consultations: attending meetings or conferences, or engaged in consultations with business associates.
  • Research and design: technical, scientific and statistical researchers conducting research.
  • Commercial transactions: management and supervisory personnel and financial services personnel (including insurers, bankers and investment brokers) engaging in a commercial transaction.
  • Participating in training seminars.
  • Participating in trade fairs and exhibitions.
  • Sales: representatives of a supplier of services or goods taking orders or negotiating the sale of services or goods or entering into agreements to sell services or goods for that supplier, but not delivering goods or supplying services themselves. Short-term business visitors shall not engage in making direct sales to the general public.
  • Purchasing: buyers purchasing goods or services for an enterprise, or management and supervisory personnel, engaging in a commercial transaction.
  • After-sales or after-lease service.
  • Tourism personnel: tour and travel agents, tour guides or tour operators attending or participating in conventions or accompanying a tour.
  • Conducting translation and interpretation.

The agreement also provides some protection for senior level U.K. national and EU national business travelers, visiting the EU and U.K. respectively, and performing company establishment activities.

  • Intra-corporate Transferees (ICTs). This route allows managers, specialists or graduate trainees to be temporarily transferred from one group company to a representative office, subsidiary, branch or head company belonging to the same group entity in the U.K. or EU.

U.K. ICTs will be permitted to work in the EU for up to three years for managers and specialists and up to one year for graduate trainees, which is consistent with the EU’s ICT framework.

The U.K. will be bound by this provision as well; however, currently U.K. law is more generous and permits ICTs to remain in the country for up to five years in a six-year period or nine years in any ten-year period if the ICT will be earning £73,900 or more per year. We expect the rules for ICTs coming to the U.K. to remain as they are.

An assessment will need to be undertaken by the Deloitte immigration team each time a secondment/transfer is contemplated to determine what type of work authorization process would be applicable to each particular set of circumstances, on a country-by-country basis.

  • Contractual Service Suppliers. This route allows for employees of a company which is established in either the U.K. or EU, and where that company does not have a presence in the EU or U.K. respectively, to travel to provide their services in the other country. The employing company must have an agreed and signed contract for services, and the length of stay is limited to 12 months. While these contractual services are permitted, we expect a work permit will need to be obtained prior to travelling. In addition, there was no automatic recognition of professional services in the agreement, and under this section of the agreement a member state can require particular qualification requirements or licensing requirements in accordance with their national legislation. Some countries also have specific reservations requiring an “economic means test” to be met taking into account their local market conditions and capacity to perform the services.We have included below some of the permitted services for Contractual Service Suppliers, however, this list is not exhaustive:
    • Legal advisory services in respect of public international law and home jurisdiction law.
    • Accounting and bookkeeping services.
    • Taxation advisory services.
    • Architectural services and urban planning and landscape architectural services.
    • Engineering services and integrated engineering services.
    • Computer and related services.
    • Research and development services.
    • Advertising services.
    • Market research and opinion polling.
    • Management consulting services.
    • Services related to management consulting.
    • Technical testing and analysis services.
    • Related scientific and technical consulting services.
    • Translation and interpretation services.
    • Telecommunication services.
    • Environmental services.
    • Insurance and insurance related services advisory and consulting services.
    • Other financial services advisory and consulting services.
    • Transport advisory and consulting services.
    • Manufacturing advisory and consulting services.

This route may provide an alternative option where the ICT and/or Business Visitor Routes do not apply.

The expectation is that this route will be implemented differently in different EU countries owing to the reservations described above. An assessment will therefore need to be undertaken on a case-by-case basis to determine the permissibility and applicable work authorization process depending on the destination country.

  • Independent Professionals. This route allows for self-employed individuals who are engaged in supplying a service in the U.K. or EU for a contracted period not exceeding 12 months. The individual must have at least six years professional experience in the relevant activity, a university degree or equivalent and, where applicable, hold professional qualifications if they are legally required to undertake that activity. As for ICTs, there was no automatic recognition of professional services in the agreement so a Member State can require particular qualification requirements or licensing requirements in accordance with their national legislation.Such employees will be permitted to work in the U.K. and/or EU for the duration of their contract or up to 12 months, whichever period is shorter and they will be required to obtain a work permit prior to travelling.We have included all of the permitted services in the list below:
    • Legal advisory services in respect of public international law and home jurisdiction law.
    • Architectural services and urban planning and landscape architectural services.
    • Engineering services and integrated engineering services.
    • Computer and related services.
    • Research and development services.
    • Market research and opinion polling.
    • Management consulting services.
    • Services related to management consulting.
    • Translation and interpretation services.
    • Telecommunication services.
    • Postal and courier services.
    • Higher education services.
    • Insurance related services advisory and consulting services.
    • Other financial services advisory and consulting services.
    • Transport advisory and consulting services.
    • Manufacturing advisory and consulting services.

The expectation is that this route will be implemented differently in different EU countries owing to reservations on certain services by some EU countries. An assessment will need to be undertaken by the Deloitte immigration team each time to determine what type of work authorization process would be applicable to each particular set of circumstances, on a country-by-country basis.

In relation to working in the U.K., although limited in scope, this route does provide self-employed people the opportunity to provide their services in the U.K., which is not available under the current U.K. immigration rules. Currently there is only a formal provision in the Rules for Service Providers from Switzerland. Again, an assessment will need to be undertaken by the Deloitte immigration team in each case to determine how best to approach the work authorization process.

U.K. nationals travelling to the EU will require a minimum of six months on their passports in order to be allowed entry to an EU country.

Analysis & Comments: While the end of free movement will make travel, migration and work authorization more complicated for U.K. nationals in the EU and EU nationals in the U.K., the Trade and Cooperation Agreement does provide some clarity for business travelers, ICTs, contractual service suppliers and independent professionals. Deloitte will continue following developments related to Brexit and will provide additional information as it becomes available.

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