With remote working now advised by the UK Government wherever possible, and the end of the Brexit transition period imminent, we are receiving queries from employers who have been asked by non-UK national employees about relocating to their home country and working remotely from overseas.
In cases where an employee is a migrant worker from outside the European Economic Area (EEA) or Switzerland, and their permanent home address is located overseas, this can give rise to certain legal and practical considerations for employers and HR personnel to consider.
At the end of the Brexit implementation period on 31 December 2020, and the introduction of a new UK points-based immigration system on 1 January 2021, consideration will also need to be given to the immigration status of EU, EEA and Swiss migrant workers living or working in the UK. This includes employees who have been working from their overseas home address during the course of the pandemic and/or are wanting to relocate and work from home moving forward.
The following article examines the potential immigration issues and options that will need to be taken into account when considering a request from a migrant worker for remote working from overseas, as well as the visa options available to those who have already been working from home in another country but will be looking to return to the UK.
The immigration issues and options for non-EEA/Swiss citizens
To lawfully employ non-EEA or non-Swiss migrant workers in your UK based company or organisation, you should already have in place permission as a UK licensed sponsor. Each employee must also be in possession of a valid points-based system visa. In many cases this will be a skilled worker visa or a Tier 2 (Intra-Company Transfer) visa for employees who have been transferred to the UK from an overseas branch.
Under their conditions of leave, a Tier 2 visa holder is permitted to the travel outside the country while they are still employed in the UK. This could be, for example, for a holiday, business trip or a secondment overseas. It could also include where a home-working arrangement has been put in place, allowing the individual to return to their overseas home address to undertake their existing job role on a remote basis.
In these circumstances, the non-EEA/Swiss migrant worker will not usually be required to make a new application to subsequently return to the UK, not unless their existing leave passes its expiry date or they stay outside the UK for a period of more than 2 years.
Essentially, where an individual has been granted entry clearance or leave to remain in the UK for a period of more than 6 months, this will not lapse when they leave the UK, so long as they continue to be employed by and have not ceased working for you as their sponsor for a period of one calendar month or more.
This means that, subject to being satisfied that an employee’s job role can be performed and monitored effectively from home, with adequate technology and security in place to support remote working and any overseas data processing, you can agree to a home-working request on a temporary basis without any additional permission needed from the UK Home Office.
However, if you do agree to a migrant employee travelling overseas to work, it is important to ensure that the implications of their leave lapsing or expiring while they are outside the UK is fully understood. In some cases, an individual may need to wait 12 months until they can apply to return to the UK under Tier 2 if their existing leave expires.
Further, as the employer of a valued skilled migrant worker that you may be hoping to employ in the long-term, or even on a permanent basis, too many or prolonged absences from the UK can affect an individual’s entitlement to qualify for indefinite leave to remain (ILR).
The general rule of thumb is that an applicant cannot have had more than 180 days’ absence from the UK during any consecutive 12 month period within the 5 year period usually required to qualify for ILR. This includes any absences for work reasons, or serious and compelling reasons, including working from home due to the risk of contracting coronavirus.
If a migrant employee is looking to settle in the UK at a future date, and the offer of a permanent position in your company or organisation is an option you would like to keep open, any absences from the UK must be kept to a minimum so as not to affect any ILR application.
The immigration issues and options for non-EEA/Swiss citizens
For a short while yet, both working in the UK and working remotely from home overseas is generally more straightforward for EU, EEA and Swiss citizens than for non-EEA/Swiss citizens. However, this will change after 31st December when the Brexit implementation period comes to an end and the new UK points-based immigration system comes into effect.
Below we look at the immigration issues and options for migrant workers from the EU, EEA or Switzerland if remote working from overseas, both in the context of those who are currently living and working in the UK, or wanting to do so, as well as for those who are looking to remain resident in their home country but regularly travel to the UK for work.
Employees living in the UK
On 1 January 2021 the UK’s new immigration system will come into effect for EU, EEA and Swiss citizens. This means that those wanting to live and work in the UK will need to apply for settled or pre-settled status under the EU Settlement Scheme.
To be eligible to apply under the scheme the applicant must be living in the UK as of 31 December 2020, although applications can be submitted up until the deadline of 30 June 2021.
This means that for any migrant workers from the EU, EEA or Switzerland who are currently living and working in the UK but wanting to work remotely from home overseas, they should consider whether to secure settled or pre-settled status in the UK before they travel.
In most cases, only Irish nationals or those with British citizenship, including dual citizenship, or indefinite leave to enter or remain in the UK, are exempt.
For EU, EEA or Swiss nationals who are not exempt, or have not secured valid immigration status under the EU Settlement Scheme prior to leaving the UK, may instead need to apply under the new points-based system to be able to return to work in the UK post 1 July 2021. In many cases, this will be for a skilled worker visa or an intra-company transfer visa, each with similar requirements as with their counterpart routes for non-EEA/Swiss migrants.
It may be possible, in limited circumstances, for EU, EEA or Swiss employees to return to the UK under a visitor visa. Visitors can, in most cases, come to the UK for up to 6 months, entering the UK multiple times during that period. However, the visa-holder will be limited as to what work-related activity they can undertake on this type of visa, where anything beyond, for example, meetings and conferences, will be precluded.
Employees living overseas
An EU, EEA or Swiss employee will not need to apply to the EU Settlement Scheme if they are a frontier worker. A frontier worker refers to someone who lives in one member state but who travels to work in the UK on a regular basis, typically at least once a week.
Existing frontier workers who are 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. This is even if they are temporarily unable to work, for example, due to illness, pregnancy, or maternity and paternity leave. They will, however, need to obtain a frontier worker permit.
Under the permit scheme, those with frontier worker status by 31 December 2020 will be eligible to apply, although eligible employees will be able to submit their application up until 30 June 2021. They can also continue to enter the UK using just their valid passport or national identity card until 1 July 2021.
For those who are not eligible, or have failed to apply for a permit by the deadline date, as with all other EU, EEA and Swiss nationals, an application will instead need to be made for an appropriate work visa under the new UK’s points-based immigration system.
Applying for permission to return to the UK
The nature of the application process for EU, EEA and Swiss migrant workers seeking the relevant immigration status to enable them return to the UK after working remotely from overseas will depend on the type of status being sought.
An application for settled or pre-settled status under the EU Settlement Scheme involves a relatively simple online application and is, by far, the better option for any employees who are currently living in the UK or wanting to live in the UK after 30 June 2021. It is free to apply under the scheme, with limited documentation required in support.
For frontier workers, although the permit scheme has not yet been launched, it is anticipated that this will also involve a straightforward free-of-charge online application.
In contrast, where a visa is required under the new points-based system, the application will require the applicant to satisfy a number of strict eligibility requirements, providing documentation in support of each. This could include, for example, evidence that they can speak English and maintain themselves while in the UK.
As their employer, you will also need to obtain a sponsor licence, unless you are an existing licence holder. UK sponsors must undergo stringent checks to demonstrate that they are a genuine and solvent business. Employers must also show that the job roles they wish to recruit into are credible, and meet the relevant salary and skills requirements.
How should HR deal with requests for remote working from overseas?
Given the ongoing risk to the health, safety and wellbeing of your workers, both domestic and migrant, in the context of the coronavirus pandemic, no doubt you will want to be as flexible as possible when it comes to accommodating requests to work from home overseas.
However, in addition to the usual considerations that must be taken into account when agreeing to a home-working arrangement – especially ensuring that an employee’s job role can be performed and monitored effectively from home – you must also factor in any legal or practical issues that may arise by overseas remote working.
Depending on how many migrant workers you currently employ, and how many requests you are now likely to receive, you may want to consider developing a short overseas home-working policy to ensure that these situations are dealt with consistently and fairly.
Checking the current immigration status of any non-EEA or non-Swiss migrant workers, and whether or not their leave is due to expire during any absence from the UK, should form the starting point for any policy. You must also be fully informed of any previous periods of absence and whether these, taken cumulatively with any further period of working overseas, may impact any future settlement application that may be made by your employee(s).
For EU, EEA and Swiss workers, careful consideration must be given to the cut-off dates for submitting an application under either the EU Settlement or Frontier Worker Permit Schemes.
Further, in addition to any immigration considerations, there may be important tax, social security and employment obligations to take into account. An employee’s ability to participate in company benefits such as pensions, private health care, income protection and life assurance may also be adversely impacted by a long-term stay abroad.
As such, it is always best to seek expert advice when considering a request for remote working from overseas, especially requests to work abroad for extended periods, so as to assess all practical and legal issues that could arise in consequence. Both you and the employee must be fully informed of any risks before a final decision is reached.
*If you are dealing with a home-working request from a UK employee looking to work remotely overseas in, for example, a holiday home, you will need to be satisfied that they are able to do so without any form of special permission such as a visa or work permit within that particular jurisdiction. Additional tax, social security and employment obligations may also come into play.
As employer solutions lawyers, DavidsonMorris’ immigration specialists advise employers on all aspects of workforce global mobility including the immigration aspects of relocating and remote working from overseas. 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 for your organisation, contact us.
Last updated: 20 September 2020