Moving employees to and within the European Union

* Switzerland is not part of the EEA except by special agreement. A work permit may still be required in certain circumstances.

The non-EEA national, if applicable, will need to apply for a Schengen visa at the embassy of a Schengen member state in their main destination. Where the business would like the employee to visit several member states, it is important that the main destination be treated as the country in which the non-EEA national employee intends to spend the majority of their time. If an equal amount of time is spent in different Schengen member states during a single visit to the Schengen Area, then the visa must be obtained from the Embassy of the member state that will be entered first.

Schengen visas can offer flexibility to non-EEA nationals travelling to parts of the EU though keeping abreast of which non-EEA national requires a Schengen visa to enter a Schengen member state can prove tricky. And it is crucial to note that the United Kingdom (UK) and Ireland are not part of the Schengen territory so Schengen visa holders will need to apply for the appropriate visas.

Work Permits

A Non-EEA national travelling to the EU for work purposes may require a business visitor visa or work permit depending on the length of the assignment.

The criteria and procedure for applying for a business visitor visa or work permit will depend on each EU member state, an often time consuming and less than straightforward process to navigate as each member state may have a different interpretation of what constitutes ‘work’ or ‘business activities’.

For the UK, the short term business visitor visa allows the non-EEA national to:

• Go on secondment to a company office in the UK that isn’t part of the same group of companies as the employer

• Act as a business advisor or trainer

• Conduct research as an academic on sabbatical or accompany students on a study abroad programme

• As a doctor or dentist undertake clinical attachments or clinical observer posts, or taking the Professional and Linguistic Assessment Board (PLAB) test

• Take the Objective Structured Clinical Examination (OSCE) as an overseas qualified nurse

• As a member of an overseas film crew come in for a location shoot

• Act as a representative of a news media organisation not based in the UK

• Act as a religious worker

• Act as a guide accompanying a tour group, but only if the company is based outside the UK

• Act as a driver delivering goods or carrying passengers

• Act as a visiting professor

• Enter as an adviser, consultant, trainer, internal auditor or trouble shooter coming to a UK branch or a member of the same group of companies as the overseas employer

• Act as an employee of an international law firm which has offices in the UK, advise UK clients on litigation or international transactions

• Act as an overseas scientist or researcher, advise or share knowledge on an international project that’s being led from the UK

A company may also secure a business visitor visa for their non-EEA national to:

• Attend a pre-arranged meeting or interview, a conference or a trade fair (but not selling products or services)

• Negotiate a business deal or trade agreement

• Carry out a fact-finding mission to explore potential markets or suppliers

• Make a site visit

• Provide certain services on behalf of a foreign manufacturer (see part 2 of the Immigration Rules )

• Speak at a single conference that is not for profit

• Receive training for techniques and practices used in the UK

However, if the tasks fall outside of this, the company may instead wish to apply for a Tier 2 visa for their non-EEA migrant providing they are based in the UK and subject to other requirements within the UK immigration laws.

In France, the tasks that may constitute ‘business activities’ and ‘work’ differ from that of the UK. For instance, the non-EEA national may attend business meetings and discussions and attend negotiations, seminars or fact-finding meetings.

Nevertheless, a non-EEA representative of a company entering France to service, repair or install products will be, in most cases expected to obtain a work authorisation. The same applies to Germany. There, non-EEA nationals travelling to Germany to establish, audit, or control a subsidiary in Germany on behalf of their employers may do so under a business visitor visa.

A Dutch (Netherlands) business visitor visa is similar to a Schengen visa and can be used for short business trips for a maximum period of 3 months. Once the Dutch business visa has been granted, it cannot be requested again within the period of 6 months. After 6 months the non-EEA employee may obtain another visa. Where the non-EEA national is travelling to the Netherlands to attend short business meetings and/ or software installation then a business visa will not be required.

For longer term assignments where non-EEA nationals may wish their family members to travel with them, securing the appropriate work permit or Tier 2 visa in the UK can be beneficial to HR managers looking to incentive the employee to travel long term and provide the employee with much needed security for themselves and their family.

Van der Elst

The Van der Elst process comes from a 1994 ruling by the European Court of Justice which looked at the right of an EU business to provide services within the EU.

The ruling generally allows an established or ‘habitually employed’ non-EEA employee who is legally employed by a company in one EU member state to provide services, on behalf of their employer, to another company or customer in a different EU member state. Much may depend on whether the non-EEA national is a visa national or not but they may provide such services without the need to obtain a work permit on the proviso that:

• They do so on a temporary basis only

• They leave the UK once the services have been provided

• They do not take up any other form of employment during their time in the UK.

So how may this apply in practice? A company employing an established non-EEA national who is lawfully resident in say Germany, may travel to the UK, for a temporary period and without requiring a work permit to work, in order to provide IT services on behalf of their employer.

Such services would normally fall under the UK’s business visitor visa criteria highlighted above. What is unclear is what exactly determines ‘habitually employed’. The UK has provided its own interpretation, setting out that the employee in such circumstances is unlikely to be seen as ‘posted’ unless they have been employed for at least 12 months in a member state in which the employer is established.

It is worth highlighting however, that if the details in the above example were to be reversed, the outcome may differ. This is because Van der Elst visas are no longer required of visa-exempt non-EEA nationals working in an EU country and seeking to enter Germany to provide services to another company on behalf of their employer for less than three months per year. The visa requirements still apply to non-EEA visa nationals requiring a visa to enter Germany.

Conclusion

In an ever competitive global arena, businesses are required to move their employees to different locations. Within the European Union, EEA nationals have the benefit of freedom of movement. For non-EEA nationals navigating the immigration requirements for non-EEA employee may prove time-consuming and difficult. In most cases, if the non-EEA employee’s activity is regarded as conducting business, a work permit will not be required and a short-term business visa may suffice. Given the variations that can be seen as to how business activities and work is viewed within just a few EU countries highlighted above, it is prudent to carefully determine the tasks that the non-EEA employee will be expected to conduct in the member state to assess if a business or Schengen visa is appropriate or whether the non-EEA employee will be required to apply for work authorisation such as a work permit.

The above information is a snapshot of the options that may be available to HR managers seeking to move non-EEA employee to the European Economic area to work.

If you would like to know how we can help you assess your needs, contact us at info@davidsonmorris.com or on 020 7494 0118.