The introduction of the UK’s new points-based immigration system and the end of EU free movement have impacted the immigration status of EU, EEA and Swiss citizens in the UK. Working across borders between the UK and the EU countries has become more complex.
The status of frontier workers in particular has been subject to change, which both existing and future frontier workers, and UK-based employers of frontier workers from the EU, EEA or Switzerland, will need to be aware of.
EU rules for frontier workers
A frontier worker is an individual who lives in one country, or EU member state, but who travels to work regularly in a different country or member state. This includes any EU citizen, or citizen of the EEA or Switzerland, who is employed or self-employed in the UK but lives elsewhere. These individuals are also referred to as cross border workers.
To obtain the legal status as a frontier or cross border worker under EU law, the worker must return to the country in which they reside and of which they are nationals at least once every week.
Under the pre-Brexit free movement rules, this had become a common arrangement for thousands of EU, EEA and Swiss workers, where these individuals commuted to the UK for a few days a week or month for work.
Frontier workers in the UK from 2021
A new frontier worker permit was launched in December 2020 to enable cross border workers to continue with their flexible working and travel arrangements without having to make applications under the new points-based system.
Generally, frontier workers perform a type of work prohibited under UK business visitor visa rules. This means that in order to commute across the UK border, the frontier worker will require immigration status that allows work.
Following the end of the Brexit transition period, and up until 1 July 2021, frontier workers can continue entering the UK using just their travel documents.
From 1 July 2021, most EU, EEA and Swiss citizens who are working in the UK but living elsewhere will need to hold a frontier worker permit to enter the UK as a frontier worker. This will be in addition to a valid passport or national identity card.
For EU, EEA and Swiss citizens who were living in the UK before the end of the Brexit transition period should in most cases apply for either settled or pre-settled status under the EU Settlement Scheme to retain lawful status in the UK.
In contrast, frontier workers will need to apply to retain their status by applying for a frontier worker’s permit.
To be eligible for the frontier worker permit, eligibility criteria will need to be met.
Frontier worker permit requirements
Existing frontier workers who are employed or self-employed in the UK by 31 December 2020 are able to retain their frontier worker status from January 2021 provided they meet certain conditions.
Individuals may be eligible for a Frontier Worker Permit if all of the following apply:
- they are from the EU, Switzerland, Norway, Iceland or Liechtenstein
- they live outside of the UK
- they have worked in the UK by 31 December 2020
- they have kept working in the UK at least once every 12 months since they started working here
The frontier permit scheme is open to nationals of Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden or Switzerland.
Irish citizens do not need to apply for a frontier worker permit but they can choose to do so.
Applicants must be primarily resident outside the EU. This means being present in the UK for fewer than 180 days within the 12 months preceding the relevant day, or having returned to their country of residence at least once in the last six months or twice in the last 12 months before the relevant day unless there are exceptional reasons for not having done so.
An EU, EEA or Swiss worker may also be able to keep their frontier worker status if they have previously been a frontier worker and any of the following apply:
- They are temporarily unable to work due to illness or an accident
- They had been working in the UK but now are unemployed involuntarily and actively looking for work in the UK
- They are undergoing vocational training while involuntarily unemployed
- They are undergoing vocational training while unemployed, and the training is related to the work they carried out in their previous work
- They are temporarily unable to work due to pregnancy or childbirth
- They are on maternity or paternity leave but at the end of this period will either return to their previous employment, or find another job
Any worker that is eligible to keep their frontier worker status, either because they are working in the UK by 31 December 2020, or because they fall into any one of the above, will still need to apply for a ‘frontier worker permit’ to prove their right to enter the UK for work.
Applicants apply for a frontier worker permit using a free-of-charge online application from either inside or outside the UK.
UK work visa routes
Cross border or frontier workers who want to work in the UK from 1 January 2021, but were not working here before 31 December 2020, will need to apply for a visa. The visa they will need depends on the type of work and how long they want to come to the UK for, i.e. they will need sponsorship under the Skilled Worker route of the UK Points Based System (PBS) or obtain a visa via one of the other routes available.
The new points-based system includes a route for skilled workers who have a job offer from an approved employer sponsor. However, there will be strict requirements that must be met, for example, the applicant will need to demonstrate their ability to speak English to a required level. The job will also need to be at a required skill level and pay; either the general salary threshold of £25,600 or the going rate for the job in question, whichever is the higher.
There will not be a general route for UK employers to recruit at or near the minimum wage. Further, employers who are not already a licensed sponsor and intend to sponsor EU, EEA and Swiss migrants through the skilled worker route from January 2021, should apply before the end of the transition period. Existing Tier 2 sponsors will automatically be granted a new licence, with an expiry date consistent with their current licence.
For most work routes, sponsors must undergo checks to demonstrate they are a genuine and solvent business, and senior personnel and key users of the service must undergo criminality and other security checks. Employers must also show that the roles they wish to recruit into are credible and meet the relevant salary and skills requirements. There is a fee to apply for a sponsor licence, in addition to an Immigration Skills Charge where required.
For the individual applying for a new points-based system visa, as with the existing points-based system for migrants from outside the EEA or Switzerland looking to work in the UK, applicants will be able to apply for and pay for their visa online. In most cases, where workers are coming to the UK for more than 6 months, they will also be liable to pay an Immigration Health surcharge to enable them to use the NHS while in the UK, although frontline NHS and health care workers are likely to be exempt from paying this charge.
As with all points-based system applications, there will be a requirement for applicants to enrol their biometric information. However, in contrast to applications made by migrant workers from outside the EU, EEA or Switzerland who must make an appointment at a Visa Application Centre (VAC) to provide a photograph and scan of their fingerprints, most EU, EEA and Swiss visa applicants will not be required to attend a VAC and will instead provide just a facial image using a smartphone self-enrolment application form.
It will only be in a small number of low volume points-based system routes, to be confirmed later this year, that EU, EEA and Swiss applicants will be required to go to an overseas VAC to have their photograph taken for the purposes of obtaining a UK visa.
Are there any exemptions to the new rules on frontier workers in the UK?
The new rules for frontier workers in the UK will apply to all EU, EEA and Swiss citizens, with the exception of Irish nationals. If you are an Irish frontier worker you do not need to do anything to continue working in the UK from 1 January 2021.
Irish citizens will not need a frontier worker permit but may apply for one if they wish. This mirrors the exemption provisions for Irish citizens under the EU Settlement Scheme, where all Irish citizens will continue to be able to enter and live in the UK as they do now, but can apply for settled status under the scheme if they so wish.
This is because Ireland falls within the Common Travel Area (CTA). This is essentially the territories of the Republic of Ireland and the UK combined, including the Isle of Man and the Channel Islands, where citizens of either country enjoy the privileges accorded by the CTA.
Frontier workers travelling to the UK as visitors
Frontier workers hold special status by virtue of qualifying under Part 2 of the Withdrawal Agreement, Part 2 of the EEA EFTA Separation Agreement or Part 2 of the Swiss Citizens’ Rights Agreement.
Travelling to the UK for any other reason besides qualifying work or self-employment, such as tourism, would not come under the exemption from the requirement to hold leave to enter or remain. This means a frontier worker travelling to the UK as a tourist would need leave to enter, for example, as a visitor. From 1 July 2021, a frontier worker can enter the UK with their passport through an eGate to obtain leave as a visitor. Entering the UK through an eGate is the usual route for eligible individuals visiting the UK for a reason listed in Appendix V of the Immigration Rules.
Will right to work checks be required for frontier workers?
Employers should continue to conduct Right to Work checks on all workers, to discharge their duties under the prevention of illegal working regulations and to avoid allegations of discrimination.
The requirements under the Right to Work checks remain unchanged for EU workers until 30 June 2021.
Where an individual is a frontier worker, they must hold status in this capacity and after 1 July 2021, hold a valid frontier worker permit.
As employer solutions lawyers, DavidsonMorris’ immigration specialists advise on all aspects of business immigration and workforce global mobility. 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 the rights and status of frontier workers from 2021, or the rules of hiring EU workers in the UK, contact us.
Frontier workers FAQs
What is a frontier worker?
A frontier worker refers to any EU citizen, or citizen of the EEA or Switzerland, who is employed or self-employed in the UK but lives elsewhere. To obtain the legal status as a frontier worker under EU law these individuals must return to the country in which they reside and of which they are nationals at least once every week.
What is a cross border worker?
A cross border worker is an EU, EEA or Swiss citizen who lives in one country, or member state, but who travels to work in another on a regular basis. These individuals are also commonly referred to as either commuters or frontier workers, where they travel to the UK to work either several times a week or month but live elsewhere.
What will happen to frontier workers' rights in the UK from January 2021?
Frontier workers who are employed or self-employed in the UK by 31 December 2020 will be able to retain their frontier worker status once freedom of movement with the EU comes to an end and a new immigration system come into force on 1 January 2021. However, these individuals will need to obtain what’s known as a frontier worker permit.
What happens to UK frontier workers in the EU after Brexit?
As from 1 January 2021, once freedom of movement with the EU has ended in the UK, any non-British and non-Irish workers who wish to work in the UK while remaining resident elsewhere will need to apply through the UK’s new points-based immigration system. This could include a new skilled worker visa, although this will require the offer of a job at an appropriate skill and salary level from a UK licensed sponsor.
Last updated: 19 April 2021