ILPA Monthly February 2021 – Articles

ILPA documents

The EU/UK Trade and Cooperation Agreement – Interaction with UK immigration laws from 1 January 2021

Produced by Nicolette Bostock, Senior Solicitor and Joshua Hopkins (PSL Team Co-ordinator), Laura Devine Immigration

On 30 December 2020, the UK and EU signed the EU-UK Trade and Cooperation Agreement (‘the EUTCA’). The EUTCA sets out the agreed terms of the UK-EU relationship from 1 January 2021, prescribing bilateral mobility provisions which underpin the ‘level playing field’ principles of the EUTCA, relevant to the following classes of traveller:

  • ‘Intra-corporate transferees’ – Article SERVIN.4.2 EUTCA;
  • Business visitors, split into two sub-categories:
    • ‘Business visitors for establishment purposes’ – SERVIN. 4.2 EUTCA;
    • ‘Short term business visitors’ – Article SERVIN.4.3 EUTCA;
  • ‘Contractual service providers’ – Article SERVIN.4.2 EUTCA; and
  • ‘Independent professionals’ – Article SERVIN.4.2 EUTCA.

All of these categories and the individuals who qualify under these routes are defined in Article SERVIN.4.1 EUTCA.

The Services Mobility Agreement (‘the SMA’) was signed by the UK and Switzerland on 14 December 2020, and this agreement contains similar provisions for contractual service suppliers and independent professionals who are Swiss nationals and third-country nationals who hold permanent residence in Switzerland.

This article sets out an overview of the EUTCA’s (and SMA’s) interaction with the UK’s Immigration Rules.

Intra-corporate transferees

Article SERVIN.4.2 requires the UK to allow the entry, temporary stay and employment of an unlimited number of EU intra-corporate transferees (and their partners and children) for up to three years in the case of senior managers, partners and specialists, and up to one year for graduate trainees. All of these individuals are defined in Article SERVIN.4.1:

  • all categories require employment or partnership in the EU group entity of one year immediately prior to the transfer (six months for trainees);
  • managers require a relevant degree or professional qualification, equivalent experience and knowledge specific to the business on par with UK citizens in the same role;
  • specialists must demonstrate specialised knowledge, essential to the enterprise’s areas of activity, techniques or management taking into account their qualifications and experience;
  • and graduates must hold a university degree, be paid during the transfer, and the purpose of the transfer must be for career development or internal techniques/knowledge.

The UK’s existing Intra-Company Transfer (ICT) route already complied with all of the requirements above; subject to the host UK businesses holding ICT sponsor licences which include the EU group entity and sufficient Certificates of Sponsorship to be able to sponsor the required number of qualifying EU citizens, there is theoretically no cap on the number which can be sponsored under this route. In addition, the current maximum duration of stay of ICT migrants far exceeds that prescribed by SERVIN.4.2, being a cumulative period of five years in any consecutive six-year period or, for employees earning at least £73,000 per year, nine years in any 10-year period. Graduate trainees under the ICT route may reside in the UK for a period of one year. The scope of individual who can be sponsored under ICT is broader than the definitions in Article SERVIN.4.1.

Business visitors

Short-term business visitors

Article SERVIN.4.3 requires the UK to admit EU national short-term business visitors without a work permit or equivalent unless otherwise specified, for the purpose of carrying out the activities in Annex SERVIN-3. The minimum period of admission must be 90 days per six-month period.

Once again, most of the expressly detailed activities in Annex SERVIN-3 were already included in Appendix Visitor: Permitted Activities of the Immigration Rules. The 31 December 2020 Statement of Changes (CP 631) added the following permitted activities to be fully compliant:

  • business visitors will be able to conduct market research or analysis in the UK for their employment overseas;
  • researchers will be able to conduct independent research for their employment overseas; and
  • translators and/or interpreters will be able to translate and/or interpret in the UK as an employee of an enterprise overseas.

Visitors entering the UK to undertake permitted general business and/or intra-corporate activities are usually admitted for six months per visit, and a cumulative period of six months in any 12-month period, twice the duration prescribed by Article SERVIN.4.3.

Business visitors for establishment purposes

Article SERVIN.4.1 defines that a business visitor for establishment purposes is an EU citizen and senior postholder within the EU business seeking to establish a presence in the UK. Business visitors under this route are restricted to employees who will not offer or provide services or engage in any economic activity other than that required for setting up the UK business and cannot be remunerated for their role.

Article SERVIN.4.2 requires the UK to admit these visitors without requiring a work permit or equivalent for at least 90 days in any six-month period, without a cap on the number able to enter the UK under this route.

Employees of overseas businesses who intend to establish a commercial presence in the UK are generally expected to use the Representative of an Overseas Business route. However, this route requires applicants to apply and obtain ‘a work permit’ and to be remunerated for their role, and therefore fails to meet the relevant criteria.

Whilst establishing an enterprise is not one of the expressly permitted activities under the visitor provisions of the Immigration Rules, Appendix V only states that the applicant must not intend to establish a business as a self-employed person. Arguably EU national business visitors may be admitted to the UK to establish a presence in the UK subject to meeting the other requirements and it should follow that the absence of any new provisions being introduced in CP 631 indicate that the existing business visitor route provides for this narrowly-defined class of business visitor.

As with all categories of visit visa, an EU citizen applicant can elect to apply for prior entry clearance (and examination under the criteria above) to facilitate admission under any of the visitor criteria above, notwithstanding that they continue to be able to travel to the UK without requiring prior entry clearance.

Contractual service suppliers and independent professionals

For brevity, references in this section to EU nationals include Swiss nationals and permanent residence holders except in relation to the period of leave to be granted under the Immigration Rules.

Article SERVIN.4.1 states that a contractual service supplier is an EU citizen employee of an EU company (agency workers are specifically excluded) which has a contract of up to 12 months to supply services to a final consumer in the UK which requires the temporary presence of the employee in the UK to fulfil. To qualify, the EU citizen must have been employed by and supplied similar types of services for the EU company for at least one year, must be degree-qualified and have three years’ relevant experience, with limited exceptions for chefs, fashion models, entertainment service providers, translators and some other technical occupations, and must not be remunerated by a UK source.

Independent professionals are defined as EU citizens who are self-employed, who have a contract of up to 12 months to supply services to a final consumer in the UK which requires their temporary presence in the UK to fulfil. They must be degree-qualified and have a minimum of six years’ relevant experience.

Article SERVIN.4.4 requires the UK to allow the entry and temporary stay of EU national contractual service suppliers and independent professionals. Article SERVIN.4.4 only applies in the sectors and subsectors expressly detailed in paragraphs 10 (contractual service providers) and 11 (independent professionals) of Annex SERVIN-4 which includes legal advisory, engineering, agriculture, post/courier, computer, management consulting, transport advisory, higher education and various other services. There must not be a cap on the permitted number of these individuals, although the number of persons covered by a service contract must not be greater than necessary to fulfil the contract. The permitted length of temporary stay must be for the shorter of a cumulative period of 12 months or for the duration of the contract.

The UK’s Immigration Rules provide for contractual service suppliers and independent professions under EUTCA and SMA in Annex T5 (Temporary Worker) International Agreement Worker, at IA9.1 and IA10.1. In order to fully comply with EUTCA and SMA, CP 631 expanded Appendix T5 (Temporary Worker) International Agreement Worker to include EUTCA and SMA as agreements under which the relevant citizens could apply, added permanent residents of Switzerland as eligible applicants where the relevant category SMA criteria are met, and to amend the rules on duration of leave for successful applicants from the standard six months to the shorter of the duration of the contract or 12 months for EU nationals, limited to 12 months in any 24 month period for Swiss nationals.