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Frontier Worker Permit (Employer FAQs)

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Frontier workers are individuals who work in one country while their primary residence is in another.

EU freedom of movement has enabled frontier workers to come and go between the UK and EU member states without being subject to immigration control.

However, under the new rules coming into force in the UK in 2021, non-UK residents will require permission to come to the UK to work, live and study. This includes cross-border workers.

UK immigration options for frontier workers to secure lawful UK status include:

  • Applying under the EU settlement scheme. This scheme is open to EU nationals and their family members who are resident in the UK by 31 December 2020. Individuals must apply to the scheme by 30 June 2021 to retain lawful status. Those with five years of more continuous residence are granted settled status, while those with under five years are granted pre-settled status.
  • Sponsorship as a skilled worker under the intra-company transfer (ICT) route. This visa is for skilled workers to transfer to the UK from an overseas branch of a UK company in order to undertake work on a specific project. The eligibility requirements are strict, and the employer has to hold a sponsor licence and meet various compliance duties for the duration of the licence validity.

 

But not all frontier workers will be eligible under these routes.

Under the terms of the Brexit Withdrawal Agreement, the UK has to guarantee that frontier workers who began working in the UK before the end of the transition period on 11pm on 31st December 2020 are able to continue to work after free movement ends.

For those ineligible for either of these options, the Government is launching the new frontier worker permit.

Frontier workers are legally required to have attained lawful status by 30 June 2021, either under the frontier worker permit, EU settled status, ICT visa or another relevant route.

 

What is the frontier worker permit?

Draft proposals for the permit were released by the Government in September 2020, in a document entitled, ‘Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020’. It provides a structure for the frontier worker permit scheme and an insight into how workers can protect their status.

According to the draft document, the frontier worker permit will grant EU workers permission to remain in the UK following the end of the implementation period on 31st December 2020, providing they were already working in the UK by this date. It should be appropriate for those who do not want to, or are not eligible to, apply for long term status under settled status or an ICT visa.

This means cross-border workers can keep their frontier worker status if they are ‘frontier working’ in the UK by 31 December 2020, but they will need to apply for a frontier worker permit. They will be able to do this from 10 December 2020.

The permit affords the holder an exemption from UK immigration control, but it does not confer leave to enter or remain, nor does it offer a path to UK indefinite leave to remain.

Key points to note:

  • On 10 December, the government will launch a frontier worker permit scheme.
  • Workers can apply if they have frontier worker status.
  • Applications will be free.
  • Applications can be submitted online from inside or outside the UK.
  • Granted applications will be valid for 5 years or 2 years for the self-employed
  • The visa may be renewed indefinitely but will not qualify as a route to indefinite leave
  • to remain or settlement.
  • The visa will be valid whilst the holder continues to be a frontier worker

 

What are the frontier worker permit requirements?

To be eligible for a frontier worker permit, the individual must meet the following criteria, before 31st December 2020:

  • They are an EEA national (this includes Swiss nationals)
  • Their primary residence is NOT in the UK

 

Their frontier work must have began before 31st December 2020 and they are continuing the same working pattern when applying for a frontier worker permit as one of the following:

  • A worker,
  • Self-employed, or
  • A person who has retained the status of being a worker or self-employed under regulation 4.

 

They may also keep their frontier worker status if they have previously been a frontier worker and one of the following applies:

They:

  • Are temporarily unable to work because of an illness or accident were working in the UK but are now involuntarily unemployed, and are looking for work in the UK
  • are in vocational training while involuntarily unemployed
  • are in vocational training while unemployed, and the training is related to the work
  • they carried out in their previous work
  • are temporarily unable to work as a result of pregnancy or childbirth
  • are on maternity or paternity leave, and will return to their previous employment, or find another job, at the end of this period

 

Or, they:

  • are temporarily unable to engage in activities as a self-employed person as the result of an illness or accident;
  • are in duly recorded involuntary unemployment after having worked as a self- employed person in the United Kingdom for at least one year, provided they continue to seek employment or self-employment in the United Kingdom.
  • are in duly recorded involuntary unemployment after having worked as a self- employed person in the United Kingdom for less than one year, provided they continue to seek employment or self-employment in the United Kingdom;
  • are involuntarily no longer in self-employment and have embarked on vocational training;
  • have voluntarily ceased self-employment and have embarked on vocational training that is related to their previous occupation; or
  • are temporarily unable to engage in activities as a self-employed person due to pregnancy or childbirth, provided they continue to seek employment or self- employment in the United Kingdom.

 

What does ‘not primarily resident’ mean?

To be considered as not primarily resident in the UK for the purposes of a frontier worker permit, the applicant will need to show:

  • They have been present in the UK for fewer than 180 days in the immediate twelve months prior to 31st December 2020;
  • They returned to their country of residence on at least one occasion during the last six months or twice in the twelve-month period prior to 31st December 2020 unless there are exceptional reasons for not doing so.

The permit may also be suitable for EEA nationals ineligible for settled status due to the UK residency requirement, to retain lawful status in the UK provided they return home at least every six months.

 

What qualifies as ‘work’ for the permit?

The draft regulations do not give an indication of how many hours or how much time must be spent in the UK ‘working’. Further clarification is needed from the Home Office on how it defines and interprets exactly who is and who is not a ‘worker’ under Article 45 of the ‘Treaty on the Functioning of the European Union’. The Treaty safeguards the right of free movement of workers across the EU and states that ‘work’ must be ‘genuine and effective’, however, the Treaty remains silent on the issue of how this translates into hours worked.

 

How long does a frontier permit last?

The frontier worker permit is valid for five years for workers and for two years for the self-employed and workers who have retained frontier worker status under regulation 4 (see below).

Where an individual ceases to qualify as a frontier worker, the permit can be revoked and immigration status lost.

Frontier workers who have to stop working may be able to retain their permit for up to two years, provided their reason for ceasing work is due to one of a number of specific grounds per the government guidelines, including: illness or an accident, pregnancy or childbirth, paternity leave, unemployment, or vocational training.

Those who become unemployed can only retain the permit for six months where they have been working in the UK for less than twelve months.

The permit can be renewed in advance of its expiration period, but it cannot be used as a route to attain a long residence application due to the strict requirement of absence. Where UK settlement is the aim, individuals should consider alternative immigration routes.

 

Is the frontier permit an alternative to the visitor visa?

The permit requirements are relatively ‘loose’ by UK immigration standards, meaning the permit could potentially be open to a broad range of workers who work in the UK and spend very little time in their country of residence.

This could potentially extend to business visitors, who are subject to strict rules on permissible activities and are not permitted to undertake productive work, provided they were working in the UK by 31st December 2020.

 

How do you apply for a frontier worker permit?

Applications for the permit will open on 1st January 2021. The process will involve an online application form, with supporting evidence of your status and work to be submitted.

The deadline to have secured lawful status is 30th June 2021. This provides a six-month grace period to make the application.

As with the settlement scheme, the frontier worker permit is expected to be digitally accessible, with no physical document or proof of status issued to holders.

 

Key dates for frontier workers 

  • From 10 December 2020, frontier workers can apply for the frontier worker permit.
  • From 1 July 2021, frontier workers will need to hold a valid frontier worker permit, as well as a valid passport or a national identity card, to enter the UK as a frontier worker.
  • Until 1 July 2021, frontier workers can continue entering the UK as a frontier worker using their valid passport or national identity card.

 

How much does a frontier worker permit cost?

The frontier permit will be free to apply for.

 

Can an application for a frontier worker permit be refused?

Applications can be refused for a number of potential reasons. Public policy, public health or security grounds are all areas that can lead to a refusal. If an individual has previously lost their frontier worker status, it can also lead to any future applications being refused.

Applications can also be refused under regulation 20 which relates to a ‘misuse’ of frontier worker rights. There will be a misuse of rights where someone ‘intends to obtain an advantage from these Regulations by engaging in conduct which artificially creates the conditions required to satisfy the criteria set out in these Regulations. Arguably, because of its opacity, this gives the Home Office plenty of scope to refuse an application outright.

 

What are the alternatives to the frontier worker scheme for non-UK resident workers?

Non-UK resident workers coming to the UK from 1st January 2021 will need to apply through the UK ‘points-based immigration system’. If not eligible for the frontier worker scheme, individuals should consider alternative routes under the new system.

 

Skilled workers

There is a route for skilled workers to join the UK workforce who have an offer of employment from an approved employer sponsor. You will need to have reached a level of ‘RFQ3 or above’ which is equivalent to a UK A level, need to be able to speak English, and be paid the relevant threshold salary. The threshold salary has been set by the UK Government at £25,600.

If your salary is less than £25,600 but no less than £20,480 you may still be able to apply by ‘trading’ points on particular characteristics against salary. For example, if you have an offer of employment in an industry or sector where there is a shortage.

 

Global talent scheme

The global talent scheme is already open to non-EU citizens and will be opened up to EU, EEA and Swiss nationals. The scheme allows highly skilled researchers and scientists to enter the UK without the offer of employment.

 

International students and graduates

Visa routes that have previously been open to non-EU nationals will be opened up to include those from the EU, EEA and Switzerland. Students will be able to apply for a visa to study in the UK if:

  • They have been offered a place on a course
  • They understand, read, speak, and write English
  • They are able to support themselves financially and pay for the course

From summer 2021 a graduate immigration route will be available to those international students who completed a degree. A graduate will be able to look for work, or work in the UK at any skill level for up to two years, this is increased to three years for PHD students.

 

Visiting the UK

EU, EEA and Swiss nationals will not require a visa to enter the UK if they are visiting for up to six months. However, if there is an intention to work or study they should apply for entry clearance in advance of entering the UK.

 

EU citizens living in the UK by 31st December 2020

Frontier workers should consider whether they will be eligible to apply under the EU Settlement Scheme for pre-settled or settled status.Â

All EEA nationals who entered the UK before 31 December 2020 will have until 30 June 2021 to register themselves under the EU Settlement Scheme to continue to have the right to live and work in the UK.

 

Practical considerations for employers & workers

In practice, we would generally expect people who are eligible for frontier worker status would also be eligible for pre-settled status for five years. The benefit of the frontier worker permit really is that it should be extendable beyond five years, and as such may be worth considering for EU nationals who know they will still want to be coming to work and/or be self-employed in the UK five years from now, but who will not by that point be eligible for settlement because they are not UK resident and would have spent too much time outside the UK in that period.

Until the Government defines how much and how frequently workers have to have worked or been self employed in the UK before 31 December 2020 – and after – it is not clear if the permit will only apply to a few thousand people, or tens of thousands.

The Home Office say they “will publish guidance in due course” which will set out in detail who will be considered a worker or self-employed person under the frontier worker scheme. As the scheme is going live on 10th December we hope they will publish it soon.

 

Need assistance?

As employer solutions lawyers, DavidsonMorris’ immigration specialists advise employers on all aspects of workforce global mobility including the immigration aspects of the end of EU free movement and its impact on recruitment and onboarding. Working closely with our expert HR consultants, we provide a holistic advisory and support service to enable employers to consider the full people and legal risk concerns of operating across borders after the end of EU free movement. For advice on your organisation’s needs, contact us.

 

Frontier worker permit FAQs

What is a frontier worker?

A frontier worker is someone who works in one country but their primary residence is in another.

Do frontier workers in the UK need a visa?

Frontier workers who are working in the UK prior to 31st December 2020 will not need an additional visa, however, they will need to apply for a frontier worker permit to enable them to continue to work in the UK. For those workers who wish to enter the UK to work on/after 1st January 2021 they will need to apply through the UK points-based immigration system.

How much will a frontier worker permit cost?

The frontier worker permit will be free to apply for

 

Last updated: 22 September 2020

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