The Home Office has changed its policy on the use of UK residence cards (also called EEA biometric residence cards or BRCs) after 30 June 2021. The updated policy confirms the cards can be used by individuals who have status under the EU Settlement Scheme (EUSS), and for one entry by those who intend to apply under the scheme.

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EEA BRCs are held by the non-EEA/Swiss family members of EEA/Swiss citizens. They were issued in accordance with EU law to those who applied for them by 31 December 2020.

The UK residence cards webpage was updated on 4 or 5 May 2021 without a separate announcement. Previously, the policy stated that EEA BRCs would no longer be valid after 30 June 2021. Although EUSS status is electronic, physical evidence of that status is still needed for some purposes, in particular for visa nationals to be able to prove to airlines and other international carriers, prior to boarding, that they have permission to enter the UK.

In response to the previous policy, the Home Office received a high level of applications from non-EEA/Swiss national EUSS status holders to replace EEA BRCs with EUSS BRCs. This created a bottleneck in application processing which the Home Office is seeking to partially address through the updated policy position.

Using an EEA BRC if status under the EUSS is held

Under the updated policy, a person who holds status under the EUSS can use an EEA BRC until it expires. At that point, they can apply for a replacement EUSS BRC.

This will enable the Home Office to replace EEA BRCs over a much longer time-horizon and free up biometric appointment availability case-working resources in the lead up to 30 June 2021.

Although EEA BRCs will remain to be valid for travel purposes, we are still awaiting updated guidance from the Home Office on whether these can be used for right to work or right to rent checks after 30 June 2021. It would seem likely that they will not be, and that an online check will be required instead.

Using an EEA BRC if status under the EUSS is not yet held

Those who do not have status under the EUSS can only use their EEA BRC after 30 June 2021 on one occasion to travel to and enter the UK. They must then apply under the EUSS within 28 days.

Despite the seeming simplicity of this policy, as such an application will be made after the main in-country EUSS application deadline on 30 June 2021. It appears that using it would mean the person would not have residence rights under the ‘grace period regulations’, and therefore would not have the right to work, rent private accommodation or have access to benefits or public services until such time as status under the EUSS is approved.

It is not explicit under the policy what the position will be for those who have applied under the EUSS but have not yet received a decision. Subject to any further clarification being forthcoming from the Home Office, it would appear the policy intention is for such a person not to be able to enter the UK until their EUSS application has been approved. So if they departed the UK during processing, they would not be able to return using their BRC, nor would they be able to enter the UK if they applied while physically abroad.

The most appropriate course of action will depend on the individual circumstances of the specific case, however other options may be preferable, for example making a late EUSS application from abroad, or applying for an EUSS family permit if eligible.

EEA family permits

The Home Office’s policy on EEA family permits has not been updated. Unless it is revised, EEA family permits will not be valid after 30 June 2021. Anyone holding an EEA family permit will therefore be expected to apply for an EUSS family permit if they need to enter the UK after this date.

If you have any queries about the issues raised in this article, please contact a member of our Immigration Team.

Related Item(s): Immigration & Global Mobility, Immigration

Author(s)/Speaker(s): Andrew Osborne, Kathryn Denyer,

The increase in homeworking due to the Covid-19 pandemic is causing many employees to ask if they can work from “home” from an overseas country – be that on a temporary basis, or in some cases indefinitely. This Inbrief explains the potential legal issues and how to avoid the traps. Employers should consider a variety of issues, including tax, social security, immigration and employment law implications, before agreeing to an employee’s request to work from home when “home” is not in the UK. We consider each of these areas before explaining what practical steps you can take to minimise the risks.

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If an employee is only working overseas temporarily, from a UK perspective, the UK employer should continue to deduct income tax under the PAYE system in accordance with the employee’s PAYE code. Matters start to become more complicated where a stay becomes extended, or even indefinite Employers should always bear in mind the figure of 183 days in a country in a 12 -month period – this is generally the tipping point for tax residency, often together with employer obligations to operate withholding (see further below). Even before this threshold is reached, there are traps for the unwary.

If it is anticipated that the employee will be working overseas for at least a complete UK tax year, they may apply to HMRC for a No Tax PAYE code which, if issued, will authorise the employer to pay the employee without PAYE deductions. In addition, the employer should continue to deduct employee national insurance contributions (NICs) and pay employer NICs.

It is important to consider whether the employee’s stay in the host country – regardless of duration – creates risks of income tax or social security liability in that country, or even the risk that you (as the employer) are regarded as having created a “permanent establishment” there for corporation tax purposes. In order to understand the position, it will be necessary to establish the rules in place in the relevant host country. We briefly outline the issues below.

Income tax may be payable in host country 

The starting point is that the host country has primary taxing rights over the employment income that the employee earns while physically working in that country. However, if there is a double tax treaty (DTT) between the UK and the host country, the employee may be exempt from income tax there if certain conditions are satisfied including: 

• The employee is not a tax resident in the host country under the DTT. If the employee is tax resident in the UK and in the host country under each country’s domestic law, their residence status is determined in accordance with the DTT by reference to their personal circumstances.

• The number of days the employee is present in the host country over a 12-month period (however briefly and irrespective of the reason) must not exceed 183 days. 

The UK has a DTT with most countries, including all 27 EU countries and most other major world economies. In practice, this means that a short stay abroad in many locations is not going to result in the employee becoming liable for host country income tax.

Social security position depends on agreements in place 

The social security position is complex. The general rule is that employee and employer social security obligations arise in the country in which the employee is physically carrying out their duties. There are, however, exceptions.

Where employees are working in the EU (other than Ireland), there are exceptions for both multi-state workers (employees who are working in two or more countries) and “detached workers” (UK employees who are temporarily seconded to work in the EU or vice versa). There had been some uncertainty about the EU social security position after the end of the Brexit implementation period but, early in 2021, the EU confirmed that all member states would apply the “detached workers” exception.

Broadly speaking, if a UK employee is sent to work in an EU country after 31 January 2021, UK employee and employer NICs can continue to be paid, and no social security will arise in the EU country, provided that:  

• the stay will not exceed two years; and   
• the employee has not been sent to replace 
  another detached worker.

Risk of creating a permanent establishment 

In some situations, there will be a risk that the employee’s activities or presence in the host country will create a permanent establishment for the employer in that country. This would be the case if, for example, the employee has a sales or business development role and is habitually exercising an authority to conclude contracts in the name of the employer while in the host country. Local rules may also provide for a more expansive definition of a permanent establishment.

Careful consideration should be given to this issue. If a permanent establishment is created, the profits attributable to that establishment would be subject to corporate tax in that country. It would also mean that the income tax exemption in the DTT would not apply. While this may be less of a problem if you already have established operations in the host country, it could be a real headache if you do not.

Assuming the working-from-home arrangement is only short term, it would be difficult for the tax authorities to argue that a permanent establishment had been created. The longer the arrangement continues, however, the greater the risk – particularly if the employee routinely negotiates the principal terms of contracts with customers which are simply “rubber-stamped” without amendment by employees working in the UK. 

Immigration implications 

Intellectual property implications

The location of an employee should not impact the ownership of any intellectual property (IP) that they create, provided their employment contract has appropriate provisions covering this. So if they are, for example, developing a patentable product or registerable design, provided their employment contract stipulates that all IP rights in any material developed in the normal course of their role are owned by the employer, the place from which they develop the product or material should not have an impact.

The UK legislation generally provides that any IP created by an employee, in the usual course of their employment, belongs to the employer. So, if the employment contract states that the employment contract is governed by English law and is subject to the jurisdiction of the English and Welsh courts, the employer can rely on the UK legislation if the IP provisions are not so explicit in the contract.

The situation becomes trickier when there is no employment contract in place, or if the contract does not state the jurisdiction and local law that will apply. In these circumstances, the employer may have difficulty if there is a dispute over the ownership of the IP in material the employee has created while working abroad. The employer may be able to argue that the dispute should be governed by English law and determined in England and Wales, enabling it to rely on the employer-friendly legislation mentioned above. This may be the case if the employer is a UK company and the product/ material was for the UK market. The employee, or even a third party looking to claim ownership of the IP, may however argue that it should be governed by the legislation and jurisdiction of the host country. 

It all depends on the circumstances, such as the role of the employee, the material they have created and how they have developed the IP in issue. For certainty and protection against problems arising, it is advisable for employers to clearly set out in employment contracts that all IP in any material created during the course of the employee’s employment is owned by the employer, regardless of from where the employee is working. 

Confidential information 

One aspect of intellectual property that often gets overlooked is confidential information. Wherever an employee is working from, the importance of protecting information important to a company remains (e.g. customer data or trade secrets). In fact, greater practical measures are often needed when an employee is working from somewhere other than their private home or the company’s office.

For instance, if the employee is working abroad from a second home, or from a hotel poolside or other public place, they should continuously ensure that their laptop and work are fully password-protected and secured. Employers should consider security measures such as laptop privacy screens, minimising (or totally preventing) working in public locations and requiring loose papers to be kept locked away when not in use. This is important not just for the protection of confidential information but practically. If the employee has their phone/ laptop stolen, it will not be as easy for the employer to get replacement items to them if they are working in a jurisdiction where the employer has no office or base. 

Employment law and data privacy implications

Mandatory employment protections may apply

Be careful about transferring data 

If an employee’s role involves processing personal data, this could give rise to data protection issues. The employer needs to be comfortable that it is not breaching any data protection laws by transferring the data to the employee and that they have technical and organisational measures in place to protect the data and keep it secure. This may involve, for example, reviewing the electronic equipment being used by the employee to ensure that it meets the required standards.

Local health and safety protections may apply

UK employers have a duty to protect the health, safety and welfare of their employees, which includes providing a safe working environment when they are working from home. If an employee works from home abroad, you should also ensure that it is compliant with any local health and safety requirements. For example, in the Netherlands, employers must provide employees with the equipment needed to ensure a safe working environment, which in some cases might involve purchasing or contributing to the cost of relevant equipment.

Employees will also need to comply with applicable public health guidance (e.g. quarantine periods), both in the host country and on their return to the UK. 

Regulatory implications  

• monitor, supervise and oversee the relevant 
  employee; 
• comply with its internal policies and 
  procedures; and
• continue to satisfy its regulatory obligations.

Further, as part of their conditions for authorisation, financial services firms are 
required to:  

• be capable of being effectively supervised by their regulator(s), which includes consideration of the way in which the firm’s business is organised (e.g. structure and geographical spread);
• have appropriate non-financial resources (including sufficient human resources in terms of quantity, quality and availability); and
• be managed in such a way as to ensure that their affairs will be conducted in a sound and prudent manner.

• Market trading and reporting: the need for all relevant communications, including voice calls, to be recorded when working outside the office and that all steps should continue to be taken to prevent market abuse.
• Information security: the need to ensure that adequate controls are in place to manage cyber threats.

Against this backdrop it is perhaps unsurprising that financial services firms tend to be particularly resistant to requests related to overseas remote working arrangements.

UK solicitors working overseas can raise similar issues. For example, law firms must ensure that they can demonstrate how their professional and regulatory obligations are being met, particularly as regards supervision. Following the end of the Brexit implementation period, under the UK-EU Trade and Cooperation Agreement, UK solicitors may be entitled to provide services in certain EU member states on a temporary basis using their home country qualification but individual solicitors and those employing them will always need to check the position in the relevant EU member state to ensure they are complying with applicable national law. In addition, law firms should ensure they have appropriate professional indemnity insurance in place to cover advice being given from outside of the UK. 

How to minimise the risks  

• Only accept requests if the employee’s role can be effectively performed remotely and carried out lawfully from the country in question. 
• The shorter the period the employee is working abroad, the smaller the risks are likely to be. Consider only approving requests for a short, time-limited duration where the employee’s expected return date is clearly documented.
• Always take expert local advice on any tax, social security, immigration and employment obligations you may have in the host country. The employee may also need their own advice.
• Be aware that the employee’s ability to participate in company benefits such as pensions, private healthcare, income protection and life assurance may be adversely impacted by a move abroad. You should address this upfront with them.
• Much will depend on the identity of the host country and the employee’s nationality.
• Check what data processing the employee will be doing and that this can be carried out lawfully in line with your usual policies.
• Check relevant insurance policies, such as those covering employees if they have a work-related accident or any company property that is provided to employees (e.g. laptops and phones). Determine whether these are adequate or if you need to take out more extensive cover.
• Agree the terms of any overseas working arrangement and record them in writing. Ideally, these should clarify that:

• The employee will be liable for any additional income taxes or employee social security which may be charged because of their decision to work for a period in an overseas location (with the employer being authorised to make additional deductions or seek reimbursements, if necessary, for this purpose). 
• The employee will be responsible for any personal tax declarations that may need to be made.
• The employment contract remains subject to UK law and jurisdiction (subject to a possible review date for longer-term arrangements at which you might consider transitioning them to a local contract). 
• The employee is continuing to work solely for the UK business.
• Any IP created by the employee will be owned by the employer.
• The employee does not have the authority to enter into contracts with local customers while in the host country and should not hold themselves out as having such authority.
• The employee takes responsibility for ensuring they have the necessary technology and arrangements in place to enable them to work effectively.
• The employee accepts that they are working from home at their own risk and that the employer will not be liable for any loss they suffer due to their request being approved. 
• The employee must comply with all applicable public health guidance, both in the country to which they travel and the UK.

Employers considering this option should, however, carefully scrutinise the proposed engagement terms to understand exactly what protection is being offered and assess what gaps might still exist in the event of a dispute. For example, an employee might still be able to sue you in a local labour court or tribunal in the event of a breach. Employers will also need to consider whether the arrangement allows them enough control over someone they regard as “their” employee: the absence of such control may make the arrangement less attractive for some organisations.

Type: Inbrief

Related Item(s): Employment, Resourcing for 2021 and beyond

Author(s)/Speaker(s): Colin Leckey, Rosie Moore,

Attachment: Lewis Silkin inbrief – Home and away (2021)

In the first of our new three-part series of articles looking at resourcing over the holiday season, we consider the position of employees seeking to extend their summer holiday by working remotely from their overseas holiday destination.

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The ongoing Covid-19 pandemic has resulted in continuing uncertainty for employees wanting to travel abroad from the UK this summer. Many of us will be keeping our fingers crossed that the restrictions will lift sufficiently to allow us to visit family overseas or warmer holiday destinations. Those with accommodation already available in other countries are beginning to think about extended trips, possibly combining work and holiday. Even those of us who don’t have overseas family or second homes may soon be eyeing up the option of booking a longer stay abroad, hoping to work remotely for a while in the sun.
This article summarises the potential legal issues associated with this, and some practical steps employers can take to limit the possible risks.

A more flexible future

Employers are now facing increasing numbers of requests from employees who want to work remotely abroad, both in the long and short term. The Covid-19 pandemic has brought both the possibilities and benefits associated with remote working into sharper focus and has encouraged many employees to request arrangements that they might not have thought possible little more than a year ago. Several countries (including Barbados, Dominica, Dubai and the Cayman Islands) have introduced new visa schemes to make it easier for employees to live and work there for extended periods.

Employers are generally sympathetic to these requests and keen to facilitate them where possible, although sometimes the practical risks and costs can be prohibitive. Very often, the reason is a wish to spend more time with overseas-based family who the employee hasn’t seen for a long time. In the war for talent, allowing employees to work remotely from another country can help to give employers a competitive edge as well as reducing staff turnover and improving morale. It can therefore be frustrating when it seems as though the law has not yet caught up with the demands of resourcing in a post-pandemic world.

For the reasons outlined below, the safest approach is always to take expert UK and local advice before approving any remote working arrangement. However, in our experience, a significant number of employers are comfortable taking a view that this is not required where the arrangement is only expected to last for a few weeks, the employee clearly has the legal right to work in the host country and the overall arrangement is likely to be relatively low risk. Those operating in sectors where the concept of flexible and remote working was already more commonplace prior to Covid-19, such as technology, seem to be particularly keen to embrace the possibilities.

At the same time, permitting such requests can be a divisive issue, particularly in companies where some employees have jobs that can be done remotely, while others don’t. Do you allow requests from the former but not the latter, at the risk of stoking resentment? Or, to avoid this, do you say no to requests from everyone – risking disillusionment from those who could work from abroad but are turned down? The shifting position with quarantine requirements is a further complication. If you expect the employee to attend the workplace immediately on their return, does that mean you permit working trips to “green” countries, but not “amber” or “red” ones? Or do you permit trips everywhere, as long as the employee is able to work effectively from quarantine on their return (and pay for it, if they have gone to a “red” destination)? Or is the quarantine status of the destination country irrelevant, given ever-shifting categorisations?

Assuming you are willing to accept at least some requests, we recommend that you consider putting in place a policy to ensure that requests are treated in a consistent fashion and dealt with by the right people. It is also highly advisable to enter into a short written agreement with the employee, setting out the basis on which the request has been agreed. Before you get to that point, however, we have set out below some of the issues you should think about.

Immigration

The first and most critical point to consider will usually be whether the employee can legally work in the host country, even if the employee will only be working in that country on a remote basis for a couple of weeks.

Following the end of the Brexit implementation period, British citizens no longer have an automatic right to work in the EEA and Switzerland, unless they are also a citizen of one of these countries. In order to work in these countries, therefore, these individuals may need to obtain the relevant immigration permissions from the host country before they start working there.

Many of the early requests to work abroad have come from employees who already have the right to work in the host country, for example because they are a citizen of that country. It is tempting for employers to adopt policies that only allow employees to work remotely from countries if they already have a legal right to work there. In theory, however, this approach could be indirectly discriminatory against UK nationals who are less likely to have the legal right to work remotely overseas. It may be possible for the employer to objectively justify this position, but this could still raise difficult questions; for example, how far should employers be obliged to explore the possibility of obtaining visas for employees so that they can work abroad?

Mandatory employment protections

If an employee works from another country, even for a short period, they can become subject to the jurisdiction of that country and start to benefit from local mandatory employment protections (e.g. greater dismissal rights, paid annual holidays and minimum rates of pay). This will depend on the rules in the country that the employee is working from but, generally speaking, the implications associated with short trips will be limited. 

It is also important for employers to consider local health and safety requirements. These can be more onerous than the equivalent UK rules; for example, in some countries, employers must pay for certain equipment. Even if an employee is working from another country, you will continue to be responsible for providing them with a safe working environment under UK law. Again, however, the practical risk from a short trip will be low (but perhaps consider reminding the employee to adjust their sun lounger to an ergonomically safe position for using a laptop…..).

Tax and social security

The tax and social security position will always depend on the situation; for example, the rules in the country that the employee will be working from and how long they intend to stay. While the safe approach will always be to seek local advice on whether contributions could be payable, or reporting obligations triggered, many employers are likely to take judgment calls where short holiday extensions are concerned, but will seek to pass any risk on to the employee.

From a UK perspective, the UK employer should continue to deduct income tax under the PAYE system in accordance with the employee’s PAYE code notwithstanding that the employee is temporarily working overseas. You should also continue to deduct employee’s National Insurance contributions (NICs) and pay employer’s NICs as though the employee was continuing to work in the UK.

The written agreement with the employee governing their time in the host country should confirm that the employee will be liable for any additional tax or social security that becomes payable as a result of their decision to work abroad. The agreement should entitle the employer to deduct this from the employee’s pay or seek reimbursements if necessary.

Permanent establishment

In our experience, employers without an existing presence in the host country are often highly concerned about the risk that the employee’s presence in the host country could create a “permanent establishment” in that country (i.e. a taxable presence of the employer entity). If a permanent establishment is created, the profits attributable to that establishment would be subject to corporate taxes in that country.

Whether a permanent establishment is deemed to be created will depend on the local rules in the host country, but if the employee’s role involves negotiating and concluding contracts on behalf of the employer, the risk will usually be higher.

Ultimately, if the remote working arrangement only continues for a few weeks, the permanent establishment risk is likely to be relatively low. However, the risk will increase the longer that the arrangement continues and should be kept under review.

Data privacy

The employee’s presence in the host country could give rise to data protection considerations, particularly if their role involves processing personal data. Before agreeing for the employee to work remotely from the host country, the employer should be comfortable that it will not be in breach of data protection law (both in the UK and the host country) by transferring data to the employee, and consider what measures it has in place to keep the data secure; for example, does the IT equipment the employee will be using while abroad meet the appropriate security standards?

Implementing a policy

Given the number and complexity of these legal issues, it is sensible to consider a formal policy, especially if you anticipate more than just the odd isolated request. A policy can be a helpful way of ensuring that a proper process is followed and that all requests are dealt with promptly, appropriately and consistently and are channelled to the right people in your organisation. 

Understandably, given the potential risks and costs involved, some employers have opted to implement blanket policies prohibiting working remotely from overseas. This is particularly prevalent in regulated sectors such as financial services where there are concerns that allowing employees to work outside of the UK could cause regulatory issues.

Blanket bans could potentially be challenged, however, as indirectly discriminatory on the basis of nationality. Non-UK nationals are arguably more likely to want to spend time working outside of the UK. It is important to consider, therefore, whether such a policy could be objectively justified, especially in situations where the employer has significant resources and where, on closer analysis, it turns out that facilitating a particular employee’s request would actually be relatively inexpensive and low risk. For employers in most sectors, especially those who are looking to reap the rewards associated with greater flexibility, the most appropriate solution is often to consider every request on its individual merits.

Practical considerations – reaching agreement

We recommend that you enter into a short written agreement with the employee, before they travel. This should cover, for example:

• When the employee will be required to return to work in the UK (it is important to document this clearly as a low risk situation can turn into a higher risk situation if the employee ends up prolonging their stay).

• Whether any of the employee’s benefits (e.g. private health insurance) will be affected while they are working remotely from overseas. If so, the employee should acknowledge in writing that these will not apply while they are travelling and that they are responsible for sourcing their own equivalent cover.

• What core hours the employee will be expected to work while they are in the host country (assuming that there is a significant time difference) and who will be supervising them.

• Whether the employee will be required to cooperate with any additional mandatory immigration or right to work checks.

• Whether any additional costs associated with the temporary arrangement should be passed on to the employee, and if so how.

• Any other measures you need to take to secure confidential information and intellectual property, and to ensure that the employee complies with data privacy and health and safety laws.

• Any additional insurance required (e.g. covering employees having a work-related accident or loss/damage to company property).

• The arrangements for quarantine, if this might be required on the employee’s return to the UK.

For a more indepth discussion of the possible risks of an employee working remotely from abroad and how to mitigate these, see our Inbrief guide: Home and away: when working from home means working abroad.

Related Item(s): Employment, Resourcing for 2021 and beyond

Author(s)/Speaker(s): Colin Leckey, Rosie Moore,

The increase in homeworking due to the Covid-19 pandemic is causing many employees to ask if they can work from “home” from an overseas country – be that on a temporary basis, or in some cases indefinitely. This Inbrief explains the potential legal issues and how to avoid the traps. Employers should consider a variety of issues, including tax, social security, immigration and employment law implications, before agreeing to an employee’s request to work from home when “home” is not in the UK. We consider each of these areas before explaining what practical steps you can take to minimise the risks.

Text:

If an employee is only working overseas temporarily, from a UK perspective, the UK employer should continue to deduct income tax under the PAYE system in accordance with the employee’s PAYE code. Matters start to become more complicated where a stay becomes extended, or even indefinite Employers should always bear in mind the figure of 183 days in a country in a 12 -month period – this is generally the tipping point for tax residency, often together with employer obligations to operate withholding (see further below). Even before this threshold is reached, there are traps for the unwary.

If it is anticipated that the employee will be working overseas for at least a complete UK tax year, they may apply to HMRC for a No Tax PAYE code which, if issued, will authorise the employer to pay the employee without PAYE deductions. In addition, the employer should continue to deduct employee national insurance contributions (NICs) and pay employer NICs.

It is important to consider whether the employee’s stay in the host country – regardless of duration – creates risks of income tax or social security liability in that country, or even the risk that you (as the employer) are regarded as having created a “permanent establishment” there for corporation tax purposes. In order to understand the position, it will be necessary to establish the rules in place in the relevant host country. We briefly outline the issues below.

Income tax may be payable in host country 

The starting point is that the host country has primary taxing rights over the employment income that the employee earns while physically working in that country. However, if there is a double tax treaty (DTT) between the UK and the host country, the employee may be exempt from income tax there if certain conditions are satisfied including: 

• The employee is not a tax resident in the host country under the DTT. If the employee is tax resident in the UK and in the host country under each country’s domestic law, their residence status is determined in accordance with the DTT by reference to their personal circumstances.

• The number of days the employee is present in the host country over a 12-month period (however briefly and irrespective of the reason) must not exceed 183 days. 

The UK has a DTT with most countries, including all 27 EU countries and most other major world economies. In practice, this means that a short stay abroad in many locations is not going to result in the employee becoming liable for host country income tax.

Social security position depends on agreements in place 

The social security position is complex. The general rule is that employee and employer social security obligations arise in the country in which the employee is physically carrying out their duties. There are, however, exceptions.

Where employees are working in the EU (other than Ireland), there are exceptions for both multi-state workers (employees who are working in two or more countries) and “detached workers” (UK employees who are temporarily seconded to work in the EU or vice versa). There had been some uncertainty about the EU social security position after the end of the Brexit implementation period but, early in 2021, the EU confirmed that all member states would apply the “detached workers” exception.

Broadly speaking, if a UK employee is sent to work in an EU country after 31 January 2021, UK employee and employer NICs can continue to be paid, and no social security will arise in the EU country, provided that:  

• the stay will not exceed two years; and   
• the employee has not been sent to replace 
  another detached worker.

Risk of creating a permanent establishment 

In some situations, there will be a risk that the employee’s activities or presence in the host country will create a permanent establishment for the employer in that country. This would be the case if, for example, the employee has a sales or business development role and is habitually exercising an authority to conclude contracts in the name of the employer while in the host country. Local rules may also provide for a more expansive definition of a permanent establishment.

Careful consideration should be given to this issue. If a permanent establishment is created, the profits attributable to that establishment would be subject to corporate tax in that country. It would also mean that the income tax exemption in the DTT would not apply. While this may be less of a problem if you already have established operations in the host country, it could be a real headache if you do not.

Assuming the working-from-home arrangement is only short term, it would be difficult for the tax authorities to argue that a permanent establishment had been created. The longer the arrangement continues, however, the greater the risk – particularly if the employee routinely negotiates the principal terms of contracts with customers which are simply “rubber-stamped” without amendment by employees working in the UK. 

Immigration implications 

Intellectual property implications

The location of an employee should not impact the ownership of any intellectual property (IP) that they create, provided their employment contract has appropriate provisions covering this. So if they are, for example, developing a patentable product or registerable design, provided their employment contract stipulates that all IP rights in any material developed in the normal course of their role are owned by the employer, the place from which they develop the product or material should not have an impact.

The UK legislation generally provides that any IP created by an employee, in the usual course of their employment, belongs to the employer. So, if the employment contract states that the employment contract is governed by English law and is subject to the jurisdiction of the English and Welsh courts, the employer can rely on the UK legislation if the IP provisions are not so explicit in the contract.

The situation becomes trickier when there is no employment contract in place, or if the contract does not state the jurisdiction and local law that will apply. In these circumstances, the employer may have difficulty if there is a dispute over the ownership of the IP in material the employee has created while working abroad. The employer may be able to argue that the dispute should be governed by English law and determined in England and Wales, enabling it to rely on the employer-friendly legislation mentioned above. This may be the case if the employer is a UK company and the product/ material was for the UK market. The employee, or even a third party looking to claim ownership of the IP, may however argue that it should be governed by the legislation and jurisdiction of the host country. 

It all depends on the circumstances, such as the role of the employee, the material they have created and how they have developed the IP in issue. For certainty and protection against problems arising, it is advisable for employers to clearly set out in employment contracts that all IP in any material created during the course of the employee’s employment is owned by the employer, regardless of from where the employee is working. 

Confidential information 

One aspect of intellectual property that often gets overlooked is confidential information. Wherever an employee is working from, the importance of protecting information important to a company remains (e.g. customer data or trade secrets). In fact, greater practical measures are often needed when an employee is working from somewhere other than their private home or the company’s office.

For instance, if the employee is working abroad from a second home, or from a hotel poolside or other public place, they should continuously ensure that their laptop and work are fully password-protected and secured. Employers should consider security measures such as laptop privacy screens, minimising (or totally preventing) working in public locations and requiring loose papers to be kept locked away when not in use. This is important not just for the protection of confidential information but practically. If the employee has their phone/ laptop stolen, it will not be as easy for the employer to get replacement items to them if they are working in a jurisdiction where the employer has no office or base. 

Employment law and data privacy implications

Mandatory employment protections may apply

Be careful about transferring data 

If an employee’s role involves processing personal data, this could give rise to data protection issues. The employer needs to be comfortable that it is not breaching any data protection laws by transferring the data to the employee and that they have technical and organisational measures in place to protect the data and keep it secure. This may involve, for example, reviewing the electronic equipment being used by the employee to ensure that it meets the required standards.

Local health and safety protections may apply

UK employers have a duty to protect the health, safety and welfare of their employees, which includes providing a safe working environment when they are working from home. If an employee works from home abroad, you should also ensure that it is compliant with any local health and safety requirements. For example, in the Netherlands, employers must provide employees with the equipment needed to ensure a safe working environment, which in some cases might involve purchasing or contributing to the cost of relevant equipment.

Employees will also need to comply with applicable public health guidance (e.g. quarantine periods), both in the host country and on their return to the UK. 

Regulatory implications  

• monitor, supervise and oversee the relevant 
  employee; 
• comply with its internal policies and 
  procedures; and
• continue to satisfy its regulatory obligations.

Further, as part of their conditions for authorisation, financial services firms are 
required to:  

• be capable of being effectively supervised by their regulator(s), which includes consideration of the way in which the firm’s business is organised (e.g. structure and geographical spread);
• have appropriate non-financial resources (including sufficient human resources in terms of quantity, quality and availability); and
• be managed in such a way as to ensure that their affairs will be conducted in a sound and prudent manner.

• Market trading and reporting: the need for all relevant communications, including voice calls, to be recorded when working outside the office and that all steps should continue to be taken to prevent market abuse.
• Information security: the need to ensure that adequate controls are in place to manage cyber threats.

Against this backdrop it is perhaps unsurprising that financial services firms tend to be particularly resistant to requests related to overseas remote working arrangements.

UK solicitors working overseas can raise similar issues. For example, law firms must ensure that they can demonstrate how their professional and regulatory obligations are being met, particularly as regards supervision. Following the end of the Brexit implementation period, under the UK-EU Trade and Cooperation Agreement, UK solicitors may be entitled to provide services in certain EU member states on a temporary basis using their home country qualification but individual solicitors and those employing them will always need to check the position in the relevant EU member state to ensure they are complying with applicable national law. In addition, law firms should ensure they have appropriate professional indemnity insurance in place to cover advice being given from outside of the UK. 

How to minimise the risks  

• Only accept requests if the employee’s role can be effectively performed remotely and carried out lawfully from the country in question. 
• The shorter the period the employee is working abroad, the smaller the risks are likely to be. Consider only approving requests for a short, time-limited duration where the employee’s expected return date is clearly documented.
• Always take expert local advice on any tax, social security, immigration and employment obligations you may have in the host country. The employee may also need their own advice.
• Be aware that the employee’s ability to participate in company benefits such as pensions, private healthcare, income protection and life assurance may be adversely impacted by a move abroad. You should address this upfront with them.
• Much will depend on the identity of the host country and the employee’s nationality.
• Check what data processing the employee will be doing and that this can be carried out lawfully in line with your usual policies.
• Check relevant insurance policies, such as those covering employees if they have a work-related accident or any company property that is provided to employees (e.g. laptops and phones). Determine whether these are adequate or if you need to take out more extensive cover.
• Agree the terms of any overseas working arrangement and record them in writing. Ideally, these should clarify that:

• The employee will be liable for any additional income taxes or employee social security which may be charged because of their decision to work for a period in an overseas location (with the employer being authorised to make additional deductions or seek reimbursements, if necessary, for this purpose). 
• The employee will be responsible for any personal tax declarations that may need to be made.
• The employment contract remains subject to UK law and jurisdiction (subject to a possible review date for longer-term arrangements at which you might consider transitioning them to a local contract). 
• The employee is continuing to work solely for the UK business.
• Any IP created by the employee will be owned by the employer.
• The employee does not have the authority to enter into contracts with local customers while in the host country and should not hold themselves out as having such authority.
• The employee takes responsibility for ensuring they have the necessary technology and arrangements in place to enable them to work effectively.
• The employee accepts that they are working from home at their own risk and that the employer will not be liable for any loss they suffer due to their request being approved. 
• The employee must comply with all applicable public health guidance, both in the country to which they travel and the UK.

Employers considering this option should, however, carefully scrutinise the proposed engagement terms to understand exactly what protection is being offered and assess what gaps might still exist in the event of a dispute. For example, an employee might still be able to sue you in a local labour court or tribunal in the event of a breach. Employers will also need to consider whether the arrangement allows them enough control over someone they regard as “their” employee: the absence of such control may make the arrangement less attractive for some organisations.

Type: Inbrief

Related Item(s): Employment, Resourcing for 2021 and beyond

Author(s)/Speaker(s): Colin Leckey, Rosie Moore,

Attachment: Lewis Silkin inbrief – Home and away (2021)

In the first of our new three-part series of articles looking at resourcing over the holiday season, we consider the position of employees seeking to extend their summer holiday by working remotely from their overseas holiday destination.

Text:

The ongoing Covid-19 pandemic has resulted in continuing uncertainty for employees wanting to travel abroad from the UK this summer. Many of us will be keeping our fingers crossed that the restrictions will lift sufficiently to allow us to visit family overseas or warmer holiday destinations. Those with accommodation already available in other countries are beginning to think about extended trips, possibly combining work and holiday. Even those of us who don’t have overseas family or second homes may soon be eyeing up the option of booking a longer stay abroad, hoping to work remotely for a while in the sun.
This article summarises the potential legal issues associated with this, and some practical steps employers can take to limit the possible risks.

A more flexible future

Employers are now facing increasing numbers of requests from employees who want to work remotely abroad, both in the long and short term. The Covid-19 pandemic has brought both the possibilities and benefits associated with remote working into sharper focus and has encouraged many employees to request arrangements that they might not have thought possible little more than a year ago. Several countries (including Barbados, Dominica, Dubai and the Cayman Islands) have introduced new visa schemes to make it easier for employees to live and work there for extended periods.

Employers are generally sympathetic to these requests and keen to facilitate them where possible, although sometimes the practical risks and costs can be prohibitive. Very often, the reason is a wish to spend more time with overseas-based family who the employee hasn’t seen for a long time. In the war for talent, allowing employees to work remotely from another country can help to give employers a competitive edge as well as reducing staff turnover and improving morale. It can therefore be frustrating when it seems as though the law has not yet caught up with the demands of resourcing in a post-pandemic world.

For the reasons outlined below, the safest approach is always to take expert UK and local advice before approving any remote working arrangement. However, in our experience, a significant number of employers are comfortable taking a view that this is not required where the arrangement is only expected to last for a few weeks, the employee clearly has the legal right to work in the host country and the overall arrangement is likely to be relatively low risk. Those operating in sectors where the concept of flexible and remote working was already more commonplace prior to Covid-19, such as technology, seem to be particularly keen to embrace the possibilities.

At the same time, permitting such requests can be a divisive issue, particularly in companies where some employees have jobs that can be done remotely, while others don’t. Do you allow requests from the former but not the latter, at the risk of stoking resentment? Or, to avoid this, do you say no to requests from everyone – risking disillusionment from those who could work from abroad but are turned down? The shifting position with quarantine requirements is a further complication. If you expect the employee to attend the workplace immediately on their return, does that mean you permit working trips to “green” countries, but not “amber” or “red” ones? Or do you permit trips everywhere, as long as the employee is able to work effectively from quarantine on their return (and pay for it, if they have gone to a “red” destination)? Or is the quarantine status of the destination country irrelevant, given ever-shifting categorisations?

Assuming you are willing to accept at least some requests, we recommend that you consider putting in place a policy to ensure that requests are treated in a consistent fashion and dealt with by the right people. It is also highly advisable to enter into a short written agreement with the employee, setting out the basis on which the request has been agreed. Before you get to that point, however, we have set out below some of the issues you should think about.

Immigration

The first and most critical point to consider will usually be whether the employee can legally work in the host country, even if the employee will only be working in that country on a remote basis for a couple of weeks.

Following the end of the Brexit implementation period, British citizens no longer have an automatic right to work in the EEA and Switzerland, unless they are also a citizen of one of these countries. In order to work in these countries, therefore, these individuals may need to obtain the relevant immigration permissions from the host country before they start working there.

Many of the early requests to work abroad have come from employees who already have the right to work in the host country, for example because they are a citizen of that country. It is tempting for employers to adopt policies that only allow employees to work remotely from countries if they already have a legal right to work there. In theory, however, this approach could be indirectly discriminatory against UK nationals who are less likely to have the legal right to work remotely overseas. It may be possible for the employer to objectively justify this position, but this could still raise difficult questions; for example, how far should employers be obliged to explore the possibility of obtaining visas for employees so that they can work abroad?

Mandatory employment protections

If an employee works from another country, even for a short period, they can become subject to the jurisdiction of that country and start to benefit from local mandatory employment protections (e.g. greater dismissal rights, paid annual holidays and minimum rates of pay). This will depend on the rules in the country that the employee is working from but, generally speaking, the implications associated with short trips will be limited. 

It is also important for employers to consider local health and safety requirements. These can be more onerous than the equivalent UK rules; for example, in some countries, employers must pay for certain equipment. Even if an employee is working from another country, you will continue to be responsible for providing them with a safe working environment under UK law. Again, however, the practical risk from a short trip will be low (but perhaps consider reminding the employee to adjust their sun lounger to an ergonomically safe position for using a laptop…..).

Tax and social security

The tax and social security position will always depend on the situation; for example, the rules in the country that the employee will be working from and how long they intend to stay. While the safe approach will always be to seek local advice on whether contributions could be payable, or reporting obligations triggered, many employers are likely to take judgment calls where short holiday extensions are concerned, but will seek to pass any risk on to the employee.

From a UK perspective, the UK employer should continue to deduct income tax under the PAYE system in accordance with the employee’s PAYE code notwithstanding that the employee is temporarily working overseas. You should also continue to deduct employee’s National Insurance contributions (NICs) and pay employer’s NICs as though the employee was continuing to work in the UK.

The written agreement with the employee governing their time in the host country should confirm that the employee will be liable for any additional tax or social security that becomes payable as a result of their decision to work abroad. The agreement should entitle the employer to deduct this from the employee’s pay or seek reimbursements if necessary.

Permanent establishment

In our experience, employers without an existing presence in the host country are often highly concerned about the risk that the employee’s presence in the host country could create a “permanent establishment” in that country (i.e. a taxable presence of the employer entity). If a permanent establishment is created, the profits attributable to that establishment would be subject to corporate taxes in that country.

Whether a permanent establishment is deemed to be created will depend on the local rules in the host country, but if the employee’s role involves negotiating and concluding contracts on behalf of the employer, the risk will usually be higher.

Ultimately, if the remote working arrangement only continues for a few weeks, the permanent establishment risk is likely to be relatively low. However, the risk will increase the longer that the arrangement continues and should be kept under review.

Data privacy

The employee’s presence in the host country could give rise to data protection considerations, particularly if their role involves processing personal data. Before agreeing for the employee to work remotely from the host country, the employer should be comfortable that it will not be in breach of data protection law (both in the UK and the host country) by transferring data to the employee, and consider what measures it has in place to keep the data secure; for example, does the IT equipment the employee will be using while abroad meet the appropriate security standards?

Implementing a policy

Given the number and complexity of these legal issues, it is sensible to consider a formal policy, especially if you anticipate more than just the odd isolated request. A policy can be a helpful way of ensuring that a proper process is followed and that all requests are dealt with promptly, appropriately and consistently and are channelled to the right people in your organisation. 

Understandably, given the potential risks and costs involved, some employers have opted to implement blanket policies prohibiting working remotely from overseas. This is particularly prevalent in regulated sectors such as financial services where there are concerns that allowing employees to work outside of the UK could cause regulatory issues.

Blanket bans could potentially be challenged, however, as indirectly discriminatory on the basis of nationality. Non-UK nationals are arguably more likely to want to spend time working outside of the UK. It is important to consider, therefore, whether such a policy could be objectively justified, especially in situations where the employer has significant resources and where, on closer analysis, it turns out that facilitating a particular employee’s request would actually be relatively inexpensive and low risk. For employers in most sectors, especially those who are looking to reap the rewards associated with greater flexibility, the most appropriate solution is often to consider every request on its individual merits.

Practical considerations – reaching agreement

We recommend that you enter into a short written agreement with the employee, before they travel. This should cover, for example:

• When the employee will be required to return to work in the UK (it is important to document this clearly as a low risk situation can turn into a higher risk situation if the employee ends up prolonging their stay).

• Whether any of the employee’s benefits (e.g. private health insurance) will be affected while they are working remotely from overseas. If so, the employee should acknowledge in writing that these will not apply while they are travelling and that they are responsible for sourcing their own equivalent cover.

• What core hours the employee will be expected to work while they are in the host country (assuming that there is a significant time difference) and who will be supervising them.

• Whether the employee will be required to cooperate with any additional mandatory immigration or right to work checks.

• Whether any additional costs associated with the temporary arrangement should be passed on to the employee, and if so how.

• Any other measures you need to take to secure confidential information and intellectual property, and to ensure that the employee complies with data privacy and health and safety laws.

• Any additional insurance required (e.g. covering employees having a work-related accident or loss/damage to company property).

• The arrangements for quarantine, if this might be required on the employee’s return to the UK.

For a more indepth discussion of the possible risks of an employee working remotely from abroad and how to mitigate these, see our Inbrief guide: Home and away: when working from home means working abroad.

Related Item(s): Employment, Resourcing for 2021 and beyond

Author(s)/Speaker(s): Colin Leckey, Rosie Moore,

On 17 May 2021 a set of traffic light ratings was put in place for determining pre-and post-arrival COVID-19 measures for travelling to England.

Text:

This policy ends the ‘stay at home’ rule, under which travel from England was prohibited without a reasonable excuse, and opens up the possibility of entry to the UK without a quarantine period being required.

General issues that intending travellers need to be aware of

The COVID-19 testing and quarantine requirements for entering England are outlined below, however travellers should also check the requirements in place in the country they intend to travel to. Although quarantine is not required when arriving in England from green list countries, those countries may still have quarantine or other pre-or post-entry requirements that may affect the feasibility of a short holiday or business trip.

The countries included on each list may change with little or no notice, which means that travellers should be prepared either to return early, or to comply with more stringent requirements if the country they intend to enter England from is moved from one list to another.

The Department for Transport has issued a Passenger COVID-19 Charter highlighting key points travellers should bear in mind. Travellers should ensure they carefully monitor and comply with documentation and procedural requirements for travelling (both pre- and post-arrival) and be prepared for delays at travel terminals while compliance is checked. They should also ensure they understand their booking terms, as well as the terms of any travel insurance policy they have in place or are considering taking out.

Common Travel Area

There are no COVID-19 testing or isolation requirements for people arriving in England from elsewhere in the UK, or from the Republic of Ireland, the Channel Islands and the Isle of Man, provided they have not been outside these places within the 10 days before arrival.

Occupational and medical exemptions

There are certain occupation and medical/compassionate grounds exemptions from COVID-19 testing and/or quarantine requirements. These exist outside of the traffic light system.

Green list countries

Before arrival, travellers who have only been in or travelled through green list countries within the 10 days before arrival in England must:

• Fill out a passenger locator form

• Take an approved COVID-19 test within three days of boarding the service that will arrive in the UK

• Book and pay for a day 2 approved COVID-19 test

After arrival, these travellers must:

• Take the booked COVID-19 test on or before day 2 after arrival

Self-isolation is not required unless the test is positive, or NHS Test and Trace directs this because the person travelled to England with another person who tests positive.

The Government has committed to reviewing the green list every three weeks.

Amber list countries

Although the official guidance states not to travel to amber list countries, doing so is not unlawful.

In addition to the pre-arrival requirements for those arriving in England from green list countries, a day 8 approved COVID-19 test must be booked and paid for when arriving from an amber list country.

After arrival, passengers from amber list countries must also:

• Self-quarantine in their home or the place they are staying in England for 10 days

• Take the booked COVID-19 tests on or before day 2, and on or after day 8 (unless they are able to end their quarantine early under the Test to Release scheme)

Red list countries

Travel to red list countries is also against government guidance, and there will be practical obstacles to returning to England from these countries as direct arrivals (subject to limited exceptions) are currently unlawful.

Only British or Irish nationals, and who have residence rights in the UK are permitted to enter England within 10 days of presence in a red list country.

Those who arrive in England within 10 days of having been in a red list country must do the following before arrival:

• Fill out a passenger locator form

• Take an approved COVID-19 test within three days of boarding the service that will arrive in the UK

• Book and pay for a quarantine hotel package, including a day 2 and day 8 approved COVID-19 test

After arrival, these travellers must:

• Quarantine in an approved hotel for at least 10 days (the period will be extended in the case of receiving a positive COVID-19 test result)

• Take the booked COVID-19 test on or before day 2 after arrival, and on or after day 8 (noting that the Test to Release scheme does not apply)

If you have any queries about the current requirements, please contact a member of our Immigration Team.

Related Item(s): Immigration & Global Mobility, Covid 19 – Coronavirus, Immigration

Author(s)/Speaker(s): Andrew Osborne, Kathryn Denyer,

On 17 May 2021 a set of traffic light ratings was put in place for determining pre-and post-arrival COVID-19 measures for travelling to England.

Text:

This policy ends the ‘stay at home’ rule, under which travel from England was prohibited without a reasonable excuse, and opens up the possibility of entry to the UK without a quarantine period being required.

General issues that intending travellers need to be aware of

The COVID-19 testing and quarantine requirements for entering England are outlined below, however travellers should also check the requirements in place in the country they intend to travel to. Although quarantine is not required when arriving in England from green list countries, those countries may still have quarantine or other pre-or post-entry requirements that may affect the feasibility of a short holiday or business trip.

The countries included on each list may change with little or no notice, which means that travellers should be prepared either to return early, or to comply with more stringent requirements if the country they intend to enter England from is moved from one list to another.

The Department for Transport has issued a Passenger COVID-19 Charter highlighting key points travellers should bear in mind. Travellers should ensure they carefully monitor and comply with documentation and procedural requirements for travelling (both pre- and post-arrival) and be prepared for delays at travel terminals while compliance is checked. They should also ensure they understand their booking terms, as well as the terms of any travel insurance policy they have in place or are considering taking out.

Common Travel Area

There are no COVID-19 testing or isolation requirements for people arriving in England from elsewhere in the UK, or from the Republic of Ireland, the Channel Islands and the Isle of Man, provided they have not been outside these places within the 10 days before arrival.

Occupational and medical exemptions

There are certain occupation and medical/compassionate grounds exemptions from COVID-19 testing and/or quarantine requirements. These exist outside of the traffic light system.

Green list countries

Before arrival, travellers who have only been in or travelled through green list countries within the 10 days before arrival in England must:

• Fill out a passenger locator form

• Take an approved COVID-19 test within three days of boarding the service that will arrive in the UK

• Book and pay for a day 2 approved COVID-19 test

After arrival, these travellers must:

• Take the booked COVID-19 test on or before day 2 after arrival

Self-isolation is not required unless the test is positive, or NHS Test and Trace directs this because the person travelled to England with another person who tests positive.

The Government has committed to reviewing the green list every three weeks.

Amber list countries

Although the official guidance states not to travel to amber list countries, doing so is not unlawful.

In addition to the pre-arrival requirements for those arriving in England from green list countries, a day 8 approved COVID-19 test must be booked and paid for when arriving from an amber list country.

After arrival, passengers from amber list countries must also:

• Self-quarantine in their home or the place they are staying in England for 10 days

• Take the booked COVID-19 tests on or before day 2, and on or after day 8 (unless they are able to end their quarantine early under the Test to Release scheme)

Red list countries

Travel to red list countries is also against government guidance, and there will be practical obstacles to returning to England from these countries as direct arrivals (subject to limited exceptions) are currently unlawful.

Only British or Irish nationals, and who have residence rights in the UK are permitted to enter England within 10 days of presence in a red list country.

Those who arrive in England within 10 days of having been in a red list country must do the following before arrival:

• Fill out a passenger locator form

• Take an approved COVID-19 test within three days of boarding the service that will arrive in the UK

• Book and pay for a quarantine hotel package, including a day 2 and day 8 approved COVID-19 test

After arrival, these travellers must:

• Quarantine in an approved hotel for at least 10 days (the period will be extended in the case of receiving a positive COVID-19 test result)

• Take the booked COVID-19 test on or before day 2 after arrival, and on or after day 8 (noting that the Test to Release scheme does not apply)

If you have any queries about the current requirements, please contact a member of our Immigration Team.

Related Item(s): Immigration & Global Mobility, Covid 19 – Coronavirus, Immigration

Author(s)/Speaker(s): Andrew Osborne, Kathryn Denyer,

The Home Office has today confirmed that the COVID-19 adjusted right to work check process will remain in place until 20 June 2021, instead of 16 May 2021 as previously announced.

Text:

The updated Home Office guidance can be found here and our commentary on the previous announcement can be found here.

The extended end date of the adjusted right to work process now coincides with the planned implementation of step four of the Government’s roadmap for easing lockdown restrictions in England, rather than step three.

Although many UK employers are not intending to properly reopen their offices until September at the earliest, at least the timing of this announcement means that there is more time to think about what structures to put in place for manual right to work checks where required, and to raise any further concerns with the Home Office if appropriate.

If you require assistance with returning to conventional right to work checks or you have any concerns about how a return to fully compliant checks from 21 June may affect your business, please contact a member of our Immigration Team.

We will be discussing right to work issues, including any further developments regarding COVID-19 adjusted checks in our webinar, ‘Right to work checks from 1 July 2021’. This is taking place on 24 June 2021 and you can register for the session here.

Related Item(s): Immigration & Global Mobility, Covid 19 – Coronavirus, Immigration

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt, Naomi Hanrahan-Soar, Stephen OFlaherty,

The Home Office has today confirmed that the COVID-19 adjusted right to work check process will remain in place until 20 June 2021, instead of 16 May 2021 as previously announced.

Text:

The updated Home Office guidance can be found here and our commentary on the previous announcement can be found here.

The extended end date of the adjusted right to work process now coincides with the planned implementation of step four of the Government’s roadmap for easing lockdown restrictions in England, rather than step three.

Although many UK employers are not intending to properly reopen their offices until September at the earliest, at least the timing of this announcement means that there is more time to think about what structures to put in place for manual right to work checks where required, and to raise any further concerns with the Home Office if appropriate.

If you require assistance with returning to conventional right to work checks or you have any concerns about how a return to fully compliant checks from 21 June may affect your business, please contact a member of our Immigration Team.

We will be discussing right to work issues, including any further developments regarding COVID-19 adjusted checks in our webinar, ‘Right to work checks from 1 July 2021’. This is taking place on 24 June 2021 and you can register for the session here.

Related Item(s): Immigration & Global Mobility, Covid 19 – Coronavirus, Immigration

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt, Naomi Hanrahan-Soar, Stephen OFlaherty,

Free movement between the UK and the EEA/Switzerland came to an end at 11pm on 31 December 2020. Free movement has been replaced in the UK by the domestic immigration system, including the new Points-Based Immigration System (PBIS).

Text:

EEA/Swiss nationals, excluding Irish nationals (‘EEA nationals’) who want to work in the UK now need some form of visa permission, depending on when they arrived in the country. This change has massive implications for UK employers. Employers will need to ensure they understand how the rules affect their business, how their recruitment plans and budgets are impacted, and whether their staff have the correct status to allow them to continue working both in the UK and abroad.

With this in mind, we recommend the following key action points for the first half of 2021.

Current EEA employees and their family members who are in the UK must apply under the EU Settlement Scheme by 30 June 2021. If they fail to do this, they risk losing their right to live and work in the UK. This would cause disruption to their lives and your business and result in significant added cost to resolve the situation. We recommend ensuring your employees are aware of their eligibility for Pre-Settled or Settled Status particularly in the run up to the deadline and offering support for those who need it.

• Our webinar and Q&A on Brexit and the EU Settlement Scheme has further general information.

• Our article highlights some potential pitfalls to avoid with the EU Settlement Scheme, particularly when the circumstances of the COVID-19 pandemic are factored in.

• We also look at the EU Settlement Scheme deadlines and some of their implications here.

• Finally, we have prepared a simple scenario infographic of what employers need to consider if they are looking to hire an EEA national or family member of an EEA national following the end of the transition period on 31 December 2020. Download it here.

Need more detailed assistance?

Under the Brexit strand of our Immigration Solutions for HR, you can pick and mix from a range of options to help you navigate the EU Settlement Scheme including our handy FAQ guide, specific training sessions and advice surgeries for your EEA staff.

We are also able to assist individuals with EU Settlement Scheme and British citizenship applications.

Get in touch with a member of our Immigration Team to discuss putting together the right tools for your business.

It is important that you understand how the new visa rules under the Points-Based Immigration System affect your business, particularly if you want to continue to recruit EEA nationals.

The previous routes for sponsoring workers have been significantly reformed. For skilled workers, some requirements such as formal resident labour market testing have been removed, and the skill and salary thresholds have been lowered. See our overview article for further information about the main changes.

There are also new visa options such as the frontier worker permit which will assist European cross-border workers who travel to the UK regularly for work to continue to do so now free movement has ended.

In terms of new immigration options for employees, a new Graduate route is being launched from 1 July 2021. Read our article here for more details. We also cover amendments introduced in April 2021 to the Skilled Worker route.

The Home Office has been consulting sponsors about the design of an improved sponsorship system for workers, and it is expected that further engagement will take place later in 2021. For information on the Home Office’s initial sponsorship survey, see here.

Finally, the Migration Advisory Committee is currently seeking stakeholders’ views on the operation and effectiveness of the Intra-Company Transfer (ICT) immigration route, as well as a potential expansion of the immigration options for overseas businesses setting up a presence in the UK. The deadline for submitting responses to the MAC’s call for evidence is 15 June 2021. The MAC is due to report back to the government in October 2021. Find out more in our article here. 

Need more detailed assistance?

Our Immigration Law Academies are a one-stop-shop for learning about the new system. The course has been specially designed to give HR and in-house professionals a full overview of the business immigration areas, including the Points-Based Immigration System. Our next Academy is being held on 30 June and 1 July 2021. Find out more here.

We also offer bespoke training for businesses who want to train a larger team or just would prefer to tailor a course to their own specific needs. Please get in touch with one of our Immigration Team members to discuss further or to have a chat about what the rules could mean for your business.  

If you have not used the sponsorship system before, you may find you will now need to use it as employing nationals from the EEA and beyond will require a sponsor licence in some cases. It is important to consider applying for one now so that you are ready to use it when you need to recruit. Sponsor licence applications can take up to eight weeks to process so it pays to act in advance.

If you currently have a sponsor licence, you will need to ensure that it is up-to-date and accurately reflects your organisation’s current structure. You may need to make updates to the Home Office or ensure your HR processes are in good shape to meet your growing sponsor licence duties. In March 2021, the Home Office made important clarifications to the documentation that sponsors of workers must keep regarding their recruitment activity. We cover these in our article here.

Need more detailed assistance?

Our Immigration Team has a wealth of experience in advising on and assisting with sponsor licence applications and can help you with any queries if you are new to the process.

As part of our Immigration Solutions for HR, our Immigration Team can offer training, compliance guides and mock audits of your systems to identify any areas of risk, suggest improvements and prepare you for a real Home Office audit.

All UK employers have a responsibility to ensure that their employees have the right to work in the UK before they start work and throughout their employment. The end of free movement will necessitate changes to the right to work check system, however the Home Office has indicated that right to work checks will remain the same until 30 June 2021, due to the six month grace period that EEA nationals have to secure their status under the EU Settlement Scheme. The continuation of existing checks leaves employers open to unwittingly employing someone who does not or who may soon not have status which allows them to work in the UK.

In addition, on 30 April 2020 the Home Office introduced adjusted right to work checks to address the logistical problems created by the COVID-19 pandemic. These will only remain in place for a limited period of time, and employers need to know what to do when they end.  

• Our webinar and Q&A on right to work checks beyond 2020 (held in December 2020) outlines some of the main issues and how to address them.
• Current guidance on right to work checks for EEA nationals during the post-transition grace period from 1 January 2021 to 30 June 2021 is covered in our article here.
• The Home Office’s plans for ending adjusted right to work checks are discussed in our article here.
• Register for our webinar on Right to Work checks from 1 July 2021 (which will also cover adjusted checks) here.

Need more detailed assistance?

Our Immigration Solutions for HR provide a full overview of the requirements for right to work compliance. We offer training and e-learning courses on right to work checks to help upskill your team and a handbook which can be used as a learning tool.

In response to the specific issues raised by the grace period, we have developed a best practice guide and template advice to ensure you can manage the period to 30 June 2021 compliantly and in line with your employment law obligations. Our Immigration Team are on hand to share these with you.

We can also help to update your internal policies and recruitment documents to ensure they are ready for when the right to work system will change from 1 July 2021 onwards.

EEA nationals visiting the UK are now required to do so on the same basis as all other visitors. The allowed activities for visitors have been expanded, however the position is significantly restricted in comparison to free movement. EEA nationals and their employers will need to adjust to the new restrictions and ensure they are complied with.

Need more detailed assistance?

• See our Brexit Guide for International Employers, which covers business travel, frontier worker rights, employment permission and residence across 25 jurisdictions.

• Listen to our Post-Brexit immigration rules podcast where we discuss changes in immigration rules from both side of the channel.

Our Immigration Team can assess whether planned activities fall within those allowed for visitors, or whether work permission is required. We can also assist with making visa applications as appropriate.

The end of free movement not only affects EEA nationals who work in the UK. It has implications UK nationals who live in, commute to or may want to work on the continent.

If you have a workforce which spans Europe, it is important to factor in the new rules on visiting and working in Europe. UK nationals may now need a visa to work in Europe, which requires local visa support and additional time and financial input.

At Lewis Silkin we can call upon an extensive network of local immigration lawyers via our Ius Laboris network to ensure you can obtain timely, clear and cost effective advice and support for your global moves.

Need more detailed assistance?

• See our podcast on post-Brexit immigration rules on both sides of the channel
• See this Ius Laboris webinar on seconding workers to EU member states

Please contact a member of our Immigration Team to obtain further details on how we can support you.

Related Item(s): Immigration & Global Mobility, BREXIT

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt, Naomi Hanrahan-Soar, Stephen OFlaherty,

Attachment: Key Immigration action points for HR in 2021