- What is a frontier worker?
- Who is eligible for a frontier worker permit?
- What does “not primarily resident mean”?
- How regularly does someone need to work in the UK?
- What constitutes “work”?
- How do you “retain” frontier worker status?
- Implications of COVID 19
- What is the application process?
- Can applications be refused?
The end of free movement has, for better or worse, given rise to a number of new visa routes catering for workers looking to establish themselves in the UK. Joining their ranks is the frontier worker permit which opened to new applicants on 10 December 2020. Although only open to people who had previously commuted into the UK for work before Brexit kicked in, the criteria are generous enough that a range of people may be eligible to apply.
What is a frontier worker?
Frontier workers, as I wrote in 2019, are people who work in one country but live primarily in another. Free movement enabled this working pattern to develop and flourish within the EU, helped along by cheap travel and remote working.
Frontier working comes in all different shapes and sizes. A worker could be a French employee of a multinational company sharing their time between offices in Paris and London. Or, more likely in the UK context, a non-Irish EEA national living in the Republic of Ireland, working on a regular basis over the border in Northern Ireland.
Existing frontier workers are protected by provisions of the Brexit Withdrawal Agreement which require the British government to ensure that frontier workers who began working in the UK before 31 December 2020 can continue to do so now that free movement has come to an end. As a result the Home Office has created the frontier worker permit scheme. There is no deadline to apply for a permit but frontier workers will need to secure some form of immigration permission by 30 June 2021 to continue working in the UK.
Who is eligible for a frontier worker permit?
Before rushing to give this application a go, it is important to consider whether there are any better visa options available for a frontier worker. A frontier worker permit does not have some of the same perks as other visas. It will not lead to indefinite leave to remain, for instance, which would be a possibility if the worker applied for a Skilled Worker visa or under the EU Settlement Scheme. The application process is also more involved. Step one is therefore to discount all other options before embarking on a frontier worker permit application.
Once you have decided that the frontier worker permit is the best option, how do you know whether you (or your client) are eligible? The answer in the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020.
Regulation 3 takes us through the key definition. For the purposes of a permit, a frontier worker is someone who, immediately before 11pm on 31 December 2020 was, and continuously since then, has been;
- An EEA or Swiss national
- Not primarily resident in the UK
- And one of the following
- A worker in the UK
- Self employed in the UK
- A person treated as self employed/a worker under regulation 4 as they have retained this status
The key point is that the frontier worker must have begun working in the UK before 31 December 2020 and have continued in this working pattern up to the point of application to be eligible for a permit. Family members of frontier workers can also obtain status in the UK. They should not apply under the scheme but they can apply for an EU Settlement Scheme family permit to join the frontier worker in the UK, or for pre-settled/settled status under that scheme if they are eligible.
What does “not primarily resident mean”?
This is covered in paragraph 3 of regulation 3. Someone qualifies as not primarily resident in the UK if at a “particular point in time”, also known rather ambiguously as the “relevant date”, they can show one of the following:
- They have been present in the UK for less than 180 days in the 12 month period immediately before the relevant day; or
- They have returned to their country of residence at least once in the last six months or twice in the last 12 months before the relevant day unless there are exceptional reasons for not having done so.
Home Office guidance on the permit scheme gives more details. The caseworker deciding the permit application will consider each point in turn.
Stage 1 – spent less than 180 days in the UK
In this assessment, the Home Office is not interested in any time spent in the UK before 1 January 2020. They will check whether the applicant has spent less than 180 days in the UK during any rolling 12-month period from 1 January 2020 until the date of application. If it is an application to renew a permit then the 12 month periods will run from the date the last permit was granted.
If the applicant has been present in the UK for more than 180 days then the caseworker will move on to see if the person instead qualifies under the second stage.
Stage 2 – frequency of travel
If they can’t meet the first stage of the test, the applicant will have to show that they have returned to their country of residence at least either:
- once in every 6 month period immediately before a particular point in time
- twice in every 12-month period immediately before a particular point in time
The language is quite confusing and it is hard to get your head around how this will be calculated. What I think they are getting at is that, at any given date, a frontier worker must be able to show that they have returned to their country of residence at least once in every six months or twice in every 12 months preceding that date.
In terms of evidence, applicants will need to provide an address outside of the UK as their primary residence but the guidance indicates that declaring an address will suffice. This can be anywhere in the world and not necessarily in an EU country. The applicant will have to provide details of their travel outside of the UK over the relevant periods of time. This may be difficult for EEA nationals without stamps in their passports; a trawl through emails for ticket bookings is likely to be needed.
There is also some flexibility to the travel requirements. The Home Office will allow an application which does not meet them in “exceptional circumstances”. These include travel restrictions due to COVID (more on this in a moment), illness or accident or pregnancy and childbirth.
When you consider that other definitions of frontier working require someone to return to their home country “daily or at least once a week”, the definition of residence under the regulations is phenomenally broad. It will, for instance, encompass those who spend the vast majority of their time in the UK.
The frontier worker permit, then, is a sort of get-out-of-jail free card, particularly for people who have pre-settled status and who fail to qualify for settled status before their five-year visa expires due to too much time spent abroad. There is no deadline to apply so, provided they have remained working in the UK and made a couple of trips home a year, a frontier worker permit may offer them an option to remain in the UK.
How regularly does someone need to work in the UK?
On the flipside: how little time could an applicant spend in the UK and still be eligible? Well, in short, very little. The applicant must be able to show a period of work in the UK at least once in the 12 months before 11pm on 31 December 2020, or be able to meet the criteria for retained worker status by this date, to qualify. The guidance then requires the applicant to continue to have worked in the UK at least once in every rolling 12-month period since then to maintain their frontier worker status.
There is also provision for people who have not been able to travel to the UK as they normally would because of coronavirus restrictions, explained below.
What constitutes “work”?
Work has always been a rather gnarly concept to define in immigration law. The regulations just state that the meaning of a “worker” is the same as under Article 45 of the Treaty on the Functioning of the European Union. The Home Office guidance is more helpful, echoing the familiar refrain from EU case law, that the work or self-employment must be “genuine and effective”, and not “marginal and ancillary” to the applicant’s time in the UK.
But what does this actually mean? It’s difficult to be certain, in all honesty. The Home Office does not stipulate a minimum amount of hours a person must work in the UK. The guidance lists a number of classic visitor-type activities, such as attending meetings and negotiating deals, as examples of what would not be “genuine and effective” work, but makes clear that each case must be considered on its merits.
The end result is that the definition of work is pretty vague and ill defined. This approach though has its benefits. A whole host of workers, with differing working patterns, can potentially qualify for a permit provided a solid case can be put forward.
Interestingly, if an employed worker applies, they do not necessarily need an employment contract in the UK. They will need an employer based in the UK and some form of “agreement” that they are to undertake tasks in the UK. The employer must also offer some form of pay or services for the work undertaken. A key piece of evidence for the application will be a contract of employment or a letter from a UK employer setting out the activities in the UK and what pay they receive for it.
This gives some scope for business travellers who work for companies abroad but visit offices in the UK regularly to apply for a frontier worker permit. This will cover them if they are concerned that the work they do in the UK goes beyond the permitted activities for business visitors.
The self employed have a few extra hurdles to get over. They will still have to demonstrate that their activities are genuine and effective but also that their work is “stable and continuous” as well. People who are self employed and providing services on a temporary or irregular basis will not be eligible for a frontier worker permit. This means evidence will need to be submitted of the person’s self employment, such as invoices and contracts for future work, to show that their work has a degree of regularity and permanence to it.
The guidance is again pretty vague on how this will be applied. The examples chosen by the Home Office to illustrate the point raise some concerns. A builder working for the summer in the UK would qualify for a permit but a hairdresser working occasionally in the UK would not. There is a risk the Home Office could exclude forms of self employment that may be ad hoc and service-driven but still carry a significant social value to a local community.
How do you “retain” frontier worker status?
This is set out fully in regulation 4. It allows for a worker to retain their status as a frontier worker, and their permit, if they have had to stop working due to certain circumstances. This includes people who:
- are temporarily unable to work in the UK because of illness or an accident
- are duly recorded involuntarily unemployed
- are involuntarily unemployed and have embarked on vocational training
- voluntarily stopped working to start vocational training related to their previous work
- are temporarily unable to work in the UK following pregnancy or childbirth
For those who qualify, they will be entitled to retain their frontier worker permit, though the length of time they can retain it varies from between two years and six months depending on the reason for them stopping work. Regulation 4 sets out the full details on this and the evidence required to support a retained frontier worker status applicant.
Retained worker status requires an applicant to have had a period of employment or self employment before they become unemployed. This means the applicant must become unemployed for one of the reasons listed above within 12 months of their last period of work in the UK. Proof of previous employment or self employment will need to be provided with the application if relying on retained frontier worker status.
Implications of COVID 19
With the majority of office workers having spent the last year at home, many frontier workers who ordinarily would have been commuting into the UK have been stuck unable to travel either into or out of the UK.
The Home Office guidance makes clear that being unable to travel due to COVID travel restrictions, having to self isolate or being ill will amount to an “exceptional circumstance” for failing to meet the residency requirements detailed above. Circumstances which will be accepted by the Home Office for being unable to travel to the UK to work will also include those who have been instructed to work from home temporarily and not come into their UK office or offices. This means that frontier workers who have sat out most of 2020 working from home may still be eligible to apply for a permit.
What is the application process?
The application is free of charge but must be made online from either inside or outside the UK. An applicant will need to prove their identity as part of the application; they can use the handy UK Immigration: ID check app to do this or attend a visa application centre.
If approved, the frontier worker permit will be valid for five years for workers and the self-employed but only two years (or six months in certain circumstances) for those workers who have ‘retained’ frontier worker status under regulation 4. If an applicant applies via the app the permit will be digital but physical permits are available.
The permit does not confer leave to enter or remain under the Immigration Act 1971 but constitutes a right of admission as a person who is exempt from immigration control. It therefore does not lead to indefinite leave to remain (settlement) in the UK but can be extended indefinitely provided the applicant continues to meet the definition of a frontier worker.
Can applications be refused?
Of course — this is an immigration application! Stopping working and loss of frontier worker status could lead to an application being refused, as can reasons of public policy, public security or public health. A right of appeal and of administration review against refusal decisions is available in certain circumstances.
An application can also be refused under regulation 20 on the ground of “misuse” of frontier workers rights. This provision amounts to a “genuineness test”, familiar to immigration lawyers from other visa routes. “Misuse” will be found if a person intends to “obtain an advantage from these Regulations by engaging in conduct which artificially creates the conditions required to satisfy the criteria set out in these Regulations”. In short this means that anyone who tries to remain in the UK as a frontier worker but does not actually work is likely to have their application refused or their permit revoked.
Whether the frontier worker permit is the panacea for cross border working remains to be seen. There is plenty of flexibility within the regulations and guidance to cover a whole host of working patterns and the benefits of an unlimited renewable permit are extensive when compared to securing status under the Points Based Immigration System. The permit scheme still has not been fully publicised and there is a potentially wide range of people who could benefit from it. As we adapt to the end of free movement, the frontier worker permit may prove to be a useful tool in the armoury to ensure EEA nationals are able to live and work in the UK long term.
This article was originally published on 30 September 2020 and has been updated so that it is correct as of the new date of publication shown.