The end of free movement at 11 pm on 31 December 2020 will have significant implications for EEA/Swiss cross-border commuters who work in the UK but live abroad. Frontier working, as it is more commonly known, has flourished in recent years thanks to fast transport links and the growth in remote working. Free movement rights have provided the foundation for this phenomenon, as they have enabled EEA/Swiss nationals to work in the UK on an ad hoc basis without having to resort to a sponsored visa.
Frontier workers are protected under the terms of the Withdrawal Agreement and the UK has an obligation to ensure their working pattern can continue after the end of the transition period. After months of uncertainty about what shape this protection would take, the Government announced the creation of the frontier worker permit scheme which launched on 10 December 2020.
Frontier workers will have until 30 June 2021 to make an application for a permit which will confirm their frontier worker status and allow them to continue to work in the UK. This is a very short timeframe, and the lack of publicity surrounding the scheme creates the risk that many EEA nationals will miss out on the opportunity to apply for a permit. Coupled to this is the concern that frontier workers have not fully appreciated that they may have options under the EU Settlement Scheme as well.
Who are frontier workers?
A frontier worker is an EU, EEA or Swiss citizen (‘EEA national’) who is employed or self-employed in the UK but is resident elsewhere. It is not a requirement for the person to be resident in the EEA. Irish nationals can apply for a frontier worker permit but there is no practical benefit in them doing so.
The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 (‘the Regulations’), the legal framework to the frontier worker permit scheme, define a frontier worker as a person who is exempt from immigration control because they meet certain requirements before 11 pm on 31 December 2020 (‘IP completion date’) and meets them continuously from that point.
The requirements are that the individual must be:
- An EEA national; and
- Not primarily resident in the United Kingdom; and
- Either:
- a worker in the UK;
- a self-employed person in the UK; or
- a person treated as a worker or self-employed person in the United Kingdom by virtue of regulation 4.
Regulation 4 relates to retained status as a worker or self-employed person. To retain status under regulation 4, a person must meet one of the following criteria (noting that ‘work’ below includes employment and self-employment):
- Be temporarily unable to work as the result of an illness or accident; or
- Have previously worked in the UK, but is now in involuntarily unemployment and is looking for work in the UK; or
- Be in vocational training following a period of involuntary unemployment; or
- Have voluntarily ceased working and taken up vocational training that is related to their previous occupation; or
- Be temporarily unable to work due to pregnancy or childbirth for up to 12 months, after which period they recommence work or start looking for it.
Those who are involuntarily unemployed or who are seeking work following the 12 months allowed for pregnancy or childbirth must provide evidence that they continue to seek work in the UK. EEA nationals who have worked in the UK for less than a year before they became involuntarily unemployed will only retain their status for a maximum of six months. Those who worked in the UK for a year or more before they became involuntarily unemployed will only retain their status for more than six months if they provide compelling evidence of continuing to seek work in the UK. The Home Office’s caseworker guidance clarifies that the person need only meet the definition of a frontier worker for at least a year, not that they must have worked continuously in the UK for a year or for 365 days in total. Regarding the compelling evidence that is required to retain frontier worker status beyond six months, the guidance also states this could include evidence of increasing the number of jobs applied for, widening their job search to include roles in new locations or sectors and/or registering with further job search websites.
How long can a frontier worker reside in the UK and how often should they return to their home country?
Frontier workers must not be primarily resident in the UK, i.e. their main residence and home must be elsewhere. EEA nationals who fall under one of the following categories come within the definition of being ‘not primarily resident in the UK’:
- They have been in the UK for less than 180 days in the 12-month period before the ‘relevant date’; or
- They have returned to their country of residence at least once in the last six-month period or twice in the 12-month period before the ‘relevant date’, unless there are exceptional reasons for not having done so.
The ‘relevant date’ is defined as being a particular point in time. Taken together with the requirement that a frontier worker must maintain this status immediately before IP completion date and thereafter, the relevant date can be any date from IP completion date.
If an EEA national’s travel to the UK was affected by COVID-19 restrictions, the caseworker guidance confirms this will be accepted (albeit in limited circumstances) as an exceptional reason for not being able to travel. It remains to be seen what other exceptional reasons will be accepted by the Home Office in practice.
The ‘not primarily resident’ definition is on one level generous. Its breadth means that it can include both workers who spend a lot or a little time in the UK. It is important to keep in mind though that once frontier worker status is lost, it can never be resumed.
What extent of work or self-employment must be carried out in the UK?
The Regulations adopt the meaning of ‘worker’ within Article 45 of the Treaty on the Functioning of the European Union.
The caseworker guidance confirms that an EEA national must be engaged in ‘genuine and effective’ work in the UK. This work must not be ‘marginal and ancillary’ to their situation as a whole in the UK, meaning that it ‘involves so little time and money as to be largely irrelevant to the lifestyle of the applicant whilst in the UK.’
Examples of marginal and ancillary work activities are set out in the guidance as follows, and are broadly reflective of activities that are allowed for a visitor:
- Attending an interview or short, individual meetings
- Negotiating or signing a deal or contract (where the work for the contract is not carried out in the UK)
- Taking part in a one-off competition or audition (for artists, entertainers or musicians)
- Being briefed on the requirements of a UK-based customer, if any work for the customer is done outside the UK
The guidance does however flag that activities must be viewed in context and on a case-by-case basis.
There is no requirement for an employed worker to have their employment contract in the UK. When considering employed work, the Home Office will look at whether there is a genuine employer-employee relationship, any contract specifying the employee is required to carry out work in the UK (although the absence of this, or any formal contract at all will not be fatal), the number of hours worked in the UK, the frequency of work in the UK and the level of earnings from activities in the UK.
For people who are self-employed in the UK, the Home Office will look at the nature of the activities, the length of time spent in the UK carrying them out, the regularity and stability of the activities, whether the person is a member of a professional body in the UK (if relevant) and whether the person has infrastructure in the UK such as business premises or an office. There is a risk for applicants seeking to rely on self-employment that the Home Office may deem their activities to be merely those of a service provider (and so not eligible for the permit).
Practically, it may be more difficult (although not impossible) to demonstrate genuine and effective employed work or self-employment if a person travelled to the UK for a very short period immediately before IP completion date.
Further, regulation 20 also applies a genuineness test – ‘the misuse of frontier workers’ rights’, which occurs when a person:
- Observes the requirements of the Regulations in circumstances which do not achieve the purpose of the Withdrawal Agreement; or
- Artificially creates the conditions required to satisfy the criteria set for frontier workers and intend to obtain an advantage; or
- Attempts to remain in the UK for purposes other than exercising frontier workers’ rights.
The publicly available version of the frontier worker guidance is heavily redacted on the topic of misuse of rights, but it does state that ‘(t)his includes where a person is attempting to remain in the UK as a frontier worker for purposes other than economic activity, where they have no other basis for being in the UK.’ One situation where this could be an issue is where an individual is living in the UK due to a personal relationship while not also working.
Notably, the guidance confirms that a frontier worker permit application must not be refused on the grounds of misuse of rights where a person who holds status under the EU Settlement Scheme applies for one. This appears to contemplate a novel situation in which a person can simultaneously hold leave under the Immigration Rules and be exempt from immigration control.
What options do frontier workers have going forward?
Option 1: Application under the EU Settlement Scheme
Most EEA nationals who can be classed as frontier workers may also qualify at the minimum for ‘pre-settled status’ under the EU Settlement Scheme. An exception to this will be where the individual meets the definition of a frontier worker, has broken the continuity of their residence for EU Settlement Scheme purposes and has been unable to commence a new period of residence before IP completion date.
Unlike frontier workers, EEA nationals applying under the EU Settlement Scheme do not necessarily need to demonstrate they have been working in the UK, so in practice an EU Settlement Scheme application is also likely to be less document heavy than one for a frontier worker permit.
Reassuringly, at the ILPA European Working Group meeting on 14 December 2020, Adam Lamont, Lead Adviser of Legacy Free Movement Policy & EU Litigation at the Home Office, has confirmed that a person who is a frontier worker with no expectation of settling in the UK is not prohibited from applying under the EU Settlement Scheme. This ensures that a frontier worker has the possibility of applying for settlement if their working pattern changes and they end up spending more time in the UK.
Option 2: Frontier worker permit
EEA nationals who fall within the definition of frontier worker will be able to continue to travel to the UK during the ‘grace period’ from IP completion date to 30 June 2021 using their current original passport or national ID card only. The caseworker guidance confirms they should not be heavily examined at the border unless the Border Force official has grounds to believe they may be refused admission, e.g. on suitability and conduct grounds, or because the person has stopped being, or never was a frontier worker.
From 1 July 2021, an EEA national must hold a frontier worker permit in order to enter the UK. This means that an application must be made in good time in order to ensure the permit has been processed before it is needed for travel to the UK. In most cases the permit will be digital only, however some applicants who have been unable to apply for a digital permit will be issued with a physical one. A physical permit must be collected in the UK, and individuals granted one of these will be given a frontier worker permit collection letter, which they must show to a Border Force official at the border. Again, examination should be limited to checking the person has a frontier worker permit and passport/national ID card unless the Border Force official has grounds to believe they may be refused admission.
Frontier worker permit holders will be able to continue to use their national ID card when entering the UK until at least 31 December 2025. All other EEA nationals aside from EU Settlement Scheme participants, S2 Healthcare visitors and Swiss service providers will only be able to do this until 1 October 2021.
Application process for a frontier worker permit
The frontier worker permit application process is free of charge. An online form can be submitted in or outside the UK. However, those who wish to apply from inside the UK but are unable to use the ‘UK Immigration: ID Check’ app will only be able to apply from 22 January 2021.
Applicants will need to provide evidence of their identity and frontier worker status. i.e. employment or self-employment documentation (a letter from a UK employer, payslips, etc.) and evidence of their travel to their home country. The evidence that needs to be gathered is extensive when compared with the simplicity of the EU Settlement Scheme, and this carries a risk of refusal. If the application is successful, the permit will be granted with a validity of five years, or two years for those who have ‘retained frontier worker or self-employed person’ status. There is no limit to the amount of times a frontier worker permit can be renewed, provided the individual continues to meet the frontier worker definition. There is also no deadline to make a first application under the scheme. Individuals with pre-settled status will be able to apply for a frontier worker permit at any point before their leave expires if they think they will not qualify for settled status. If the application is refused, then the Regulations provide for an administrative review or appeal to be submitted in certain circumstances.
The Home Office has confirmed via correspondence to an ILPA member that frontier workers can switch to other immigration categories in the UK (as long as they meet eligibility requirements of the category they wish to switch into).
The Home Office has also confirmed in correspondence to our firm that if an EEA national holds frontier working status but wishes to travel to the UK for a purpose other than work (for example, a recreational visit) they will be admitted to the UK as a visitor under the Immigration Rules, and not as a frontier worker. It remains to be seen how this policy will be implemented in practice.
Conclusion
For most frontier workers the first step will be to see if they can qualify for status under the EU Settlement Scheme. The application process is far simpler, less risky and offers the possibility of settlement in the future. For the present time, the frontier worker permit functions as a reassuring safety net for those individuals who do not qualify under the EU Settlement Scheme or who cannot qualify for settled status once they have held pre-settled status. The Home Office may therefore be correct in its assessment that the route will end up being a niche category which will be used predominantly by (non-Irish) EEA nationals who live in Ireland and work in Northern Ireland. The broad definition of a frontier worker contained within the Regulations does leave the possibility open that the permit may have a greater significance in the future.
Joanna Hunt, Kathryn Denyer and Parvin Iman, Lewis Silkin LLP
- Document Date
- Tuesday December 22, 2020