Member Article

Led by legal director of immigration, Rachel Harvey and employment associate, Amy Leech, this webinar provided guidance on options available for frontier workers following the end of free movement between the EU and the UK.

Free movement of individuals between EU countries and the UK ended on 31 December 2020, following the UK’s withdrawal from the European Union. The Withdrawal Agreement assured existing frontier workers could continue to work in the UK after this date, and as a result, the UK Government created the Frontier Worker Permit Scheme.

This webinar considered who frontier workers are, how the permit scheme works in practice, potential alternatives and key considerations that employers should be aware of.

Who is a frontier worker?

Frontier workers are individuals who regularly commute into the UK for work but mainly live outside of the UK. They can be employed or self-employed and they are likely to be EEA or Swiss nationals. UK nationals who travel regularly to the continent for work may also be protected by the Withdrawal Agreement. The rules that govern UK nationals depend on the country they are travelling to in Europe, as each country will likely have their own frontier worker scheme in place.

How does the frontier worker permit scheme work in practice?

To obtain or renew a frontier worker permit, the applicant needs to make an application online and demonstrate to the Home Office that they:

• carried out work in the UK in the year preceding 31 December 2020 - in reality, there may be some flexibility with this requirement due to the pandemic. If the applicant has had any periods of unemployment in the UK and/or gaps of 12 months or more where they did not travel to the UK to carry out economic activity, this may affect their eligibility. The Home Office will assess each case on its own merits
• are an EEA/Swiss national
• are not primarily resident in the UK - the applicant needs to have spent less than a total of 180 days in the UK during any 12 month period. If they have spent more than 180 days in the UK, the Home Office will look at whether the applicant returned to their country of residence at least either once in every six month period or twice in every 12 month period. If an individual fails to meet this requirement then in exceptional circumstances, the Home Office may still accept their application.
• Meet the definition of a ‘worker’ or ‘self-employed person’ under the Regulations – in order to be a worker under the Regulations a person must have been, immediately before the end of the transition period (11pm on 31 December 2020), and have been continuously since the end of the transition period, any of the following:
  • a worker in the UK
  • a self-employed person in the UK; or
  • a person treated as a worker or self-employed person in the UK

  The guidance requires the applicant to have been economically active in the UK at least once in every rolling 12-month period from their first period of economic activity to be considered a frontier worker. There is no minimum hours of work in UK required but activities must be genuine and effective and not marginal and ancillary.

• meet certain other suitability-related requirements – an initial application can be refused on the grounds of public policy, public security or public health. It can also be refused on conducive grounds or on the grounds of misuse of frontier workers’ rights

There is no age limit for applicants but those under the age of 18 must comply with rules on child employment.

Retained frontier worker status

A frontier worker will retain their status as a frontier worker if they have previously carried out genuine and effective work but are temporarily unable to work as a result of an illness or accident, pregnancy, involuntary unemployment or COVID-19 within 12 months of their last period of genuine and effective work in the UK. Individuals will also retain their frontier worker status if they voluntary ceased working to start vocational training related to their previous employment.

Making the application

Applications for a Frontier Worker Permit can be made online, either inside or outside of the UK, and are free of charge. There is also no deadline to apply for a Frontier Worker permit. The applicant can use the UK Immigration: ID Check app to confirm their identity or they can attend a visa application centre. For anyone who has retained frontier worker status, the permit will be valid for two years and for all other individuals, the permit will be valid for five years. There is no limit on the amount of times the permit can be renewed and there is no option to apply for settlement, unless the applicant qualifies under the long residence rules.

Considerations for employers

Employers must ensure they carry out the correct checks to ascertain whether frontier workers have the right to enter and work in the UK. To obtain a statutory excuse against liability for a civil penalty, employers must request a right to work check from the Employer Checking Service (ECS), using the online form ‘request a Home Office right to work check’ on GOV.UK. An employer must have obtained copies of the employee’s documents which evidence that they were exercising rights as a frontier worker on or before 31 Dec 2020, as these will form part of the employer’s statutory excuse. Employers are also required to carry out a further ECS check six months later to maintain their statutory excuse.

Are there alternative routes available for frontier workers?

Some frontier workers will not qualify for the scheme if their work does not meet criteria. The business activities under the ‘Visitor: Permitted Activities’ appendix to the Immigration Rules could enable people to enter the UK as a visitor and remain for a business reason for up to six months. Individuals must prove on arrival to border force that they are only going to undertake permitted activities. Sponsorship through the ‘Skilled Worker’ or ‘Intra-company Transfer’ routes could also be an option, as well as via the ‘International Agreement’ route.

Outro

We highly recommended that you join our ongoing webinar sessions which cover wide ranging topics within immigration and employment law.

We work closely with organisations to understand their requirements and provide advice on the best route to bringing individuals into the UK to suit their needs and those of their overseas workers as well as supporting them with their ongoing immigration needs. Please do get in contact if you would like assistance with your business or personal immigration matters.