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Frontier workers left in Brexit limbo

Frontier workers left in Brexit limbo

When the word ‘chaotic’ no longer seems to adequately describe a situation you know things are getting bad.  The government’s announcement and subsequent hasty retraction of its intention to end free movement on 1 November 2019 has served only to amplify levels of anxiety amongst EU nationals and the wider public. Worryingly, the political theatrics act as a distraction from the crucial policy work that still needs to be done to ensure that all EU nationals who reside and work in the UK are protected post Brexit. 

Frontier workers are one such group who are facing a precarious future. They have little certainty they will be able to continue in their jobs, meaning their livelihoods and careers are at risk.

So what is a frontier worker?

Simply put a frontier worker is someone who lives in one country but who travels to work in another on a regular basis. Often referred to as cross border workers or ‘commuters’, they must return to their home country at least once a week to have the legal status of a frontier worker under EU law.

While the term might immediately conjure images of civil war era America, the increase in frontier working in the UK is largely a modern phenomenon. Fast rail links, cheap air travel and the growing acceptance by employers of flexible and remote working patterns mean that individuals who want to work abroad can do so without the hassle and risks attached with relocating their lives to new unknown countries. 

Frontier working is in many ways a win-win for everyone;  workers benefit from a broader range of opportunities, businesses a greater pool of applicants. The UK economy is bolstered by the skills that frontier workers have without any of the perceived ‘drawbacks’ of migration such as overstretched public services or unsettling community cohesion.  

A key issue for a frontier worker is their immigration status in a host country.  A frontier worker is usually involved in some form of productive work which is strictly prohibited under business visitor rules. This means that in order to commute across borders the frontier worker requires immigration status which allows work. 

This was never an issue for EU nationals looking for jobs in the UK as the EEA regulations allow for an initial right of entry and residence in the UK and the ability to freely work. With the UK’s exit from the EU seemingly imminent, frontier workers and the organisations who employ them are growing anxious about what this will mean for them. The question is what are the options for frontier workers wanting to maintain their ability to work in the UK?

First things first: Can a frontier worker apply under the EU Settlement Scheme?

Frontier workers may be able to secure their status under the Home Office’s EU Settlement Scheme. This was set up to register and confirm the status of EU nationals residing in the UK up to exit day (if we leave on a no deal basis) or the end of 2020 (if we do eventually leave with a deal). If the applicant has been in the UK for a five year period they are eligible for ‘settled status’ or indefinite leave to remain. If they have been here for less than five years they are eligible for a period of limited leave to remain called ‘pre-settled status’ which is valid for five years.  

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Appendix EU of the Immigration Rules states at paragraph EU14 that an applicant must demonstrate that they are a relevant EEA citizen and that they are not “eligible for indefinite leave to enter or remain under this Appendix solely because they have completed a continuous qualifying period of less than five years” for a successful application for “pre-settled status”.

What this means is that an EEA national need only show that they are in the UK to obtain pre-settled status (notwithstanding the criminality provisions). The guidance on the documentary evidence for residence that an applicant needs to is surprisingly lenient. The Home Office requires only one piece of evidence to show that someone has been residing in the UK dated over the last six months in order to be granted pre-settled status.  This list includes:

  • Bank statement showing spending in the UK
  • Payslip from UK based job
  • passport stamp confirming entry at the UK border
  • used travel ticket confirming you entered the UK from another country
  • invoice for work you have done in the UK and evidence of payment

Evidence which should be easily available to frontier workers spending a few days per week in the UK. A successful pre-settled status application will give the applicant a five-year permit allowing them to continue to work in the UK beyond exit day and provide some much needed security, at least in the short term.

In the longer term if a frontier worker wants to apply for settled status  they are likely to encounter a problem. To qualify, the applicant needs to have resided in the UK for a continuous period of five years and they must not have spent more than six months out of the UK in total in any given 12 month period. 

A grant of ‘settled status’ will therefore depend on how much time per week a frontier worker is spending in the UK. Since it might come down to a matter of days applicants need to ensure they alter their travel plans now to remain within the limits.  With this in mind, an excel spreadsheet will come in handy to monitor absences and they should keep any evidence of trips in and out of the UK to support any future applications.

But what are the options for frontier workers who spend more than six months a year outside of the UK to continue working in the UK long term?

The new immigration application on the block: what about Euro TLR?

Wednesday’s news that we are welcoming back European Temporary Leave to Remain (now snazzily titled Euro TLR) to the immigration fold after its two week Priti Patal-induced hiatus has implications for frontier workers as well.  Does this offer some form of future security to carry on frontier working in the UK?

The short answer is that we really don’t know. The good news is that at least until the end of 2020 frontier workers will be able to travel in and out of the UK for work largely on the same basis as they do now. This is irrespective of whether the UK leaves the EU with or without a deal. The Home Office’s policy paper has all but created a transition period where free movement will continue, akin to the protection offered by the withdrawal agreement on citizens rights if the UK leaves with a deal.

In the event of a no deal, we cannot yet say with any certainty whether frontier workers will be eligible to apply for the Euro TLR visa until we see the rules. But this will only buy them another three years of lawful residence at which point they will need to look for other options within the post 2021 immigration system.

Brexit mysteries no.3619: just what exactly is a ‘frontier worker permit’?

This is where we arrive at the mysterious ‘frontier worker permit’. The government has said that a frontier worker will be able to apply for a ‘frontier worker permit’ which will enable them to continue working beyond 2020 provided they start by 31st December 2020. They will also benefit from associated rights such as being joined by family members. The promise of a ‘frontier worker permit’ has also been offered to frontier workers in the event of a no deal Brexit, provided the individual started working in the UK before exit day.

The problem is that this is another entirely new visa category and we have next to no information about how it will function. We do not know what the requirements will be for a frontier worker permit will be or if it will offer long term residence so that a frontier worker can plan their future career.  

Recent experience shows the present government is capable of rowing back on any commitment with no regard to the chaos it may cause. So promises on gov.uk offer scant security. Frontier workers were only briefly mentioned in the overview section of the immigration white paper and the no deal policy paper released on Wednesday failed to refer to them at all. They are therefore at risk of them becoming an afterthought. Clear and unequivocal policy details are urgently needed from the government to provide some clarity so frontier workers are not left entirely in the dark.  With the added distraction of a general election looming on the horizon, it is looking increasingly likely that this won’t come anytime soon.

Joanna Hunt

Joanna Hunt is a Managing Associate at Lewis Silkin LLP. She advises individuals and businesses on all aspects of the UK immigration system. To find more out about Lewis Silkin's immigration services visit their website; http://www.lewissilkin.com/EIR/Services/Immigration-And-Global-Mobility

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