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‘Twas the Night Before Christmas, and Santa was filling in UK border forms
Credit: Norman Tsui on Unsplash

‘Twas the Night Before Christmas, and Santa was filling in UK border forms

In the run-up to Christmas, Santa must be getting ready for his round-the-world trip on the night of 24 December. But this is the first year he will be trying to get in and out of the UK without free movement measures applying. The post-Brexit transition period, extending the application of EU law in the UK, ended on 31 December 2020.    

Having previously moved seamlessly between the UK and EU countries, he might like to consider how things have changed.

What is Santa’s nationality?

Historically this has been a bit of a thorny issue, with a number of countries claiming him as their own. There does however seem to be something of a consensus around his being an EU national. The main theories suggest he is Finnish, coming from Lapland; or Danish, from Greenland, close(ish) to the North Pole; or perhaps Greek – Saint Nicholas was a fourth century bishop from either Greece or Turkey. We’ll leave Turkey aside for now, and treat Santa as an EU national.

As an EU national, we should consider whether he has pre-settled or settled status in the UK, which would give him a (legally, if not administratively) straightforward right to enter the UK. But there is no evidence that he has been resident in the UK at any time, and it is now too late: 31 December 2020 was the cut-off point for the EU Settlement Scheme.

That means that Santa is subject to the Immigration Rules.

Does he need a visa?

This is where Santa’s rather unique occupation makes things tricky. EU citizens can enter the UK visa-free if they are just visiting, but not if they are planning to work.

Some “business activity” is allowed as a visitor, but none of the exemptions seem to apply. He is not here to negotiate deals, attend a trade fair or do any of the other “general business activities“. Nor is he conducting the “intra-corporate activities” of advising, trouble-shooting, sharing skills or training. The closest of the permitted business activities is “manufacture and supply of goods to the UK”, but this requires a “contract of purchase, supply or lease with a UK company”. 

What about volunteering – since Santa does not actually get paid? Here he would need to show the volunteering “provided it lasts no more than 30 days in total”, which should not be difficult with a one-night operation. But it also needs to be for a registered charity (which it is not). 

Another possibility is “transiting without a visa”. This scheme would require him to arrive and depart “by air” (tick – thank you, reindeer); not to access public funds or medical treatment (seems fine); or work or study in the UK. If we treat his unpaid activities as not work, he should meet this last criterion too. But there is still potentially a problem. Santa would have to show that he was “genuinely in transit to another country, meaning the purpose of [his] visit is to transit the UK”. The problem here is the Home Office would likely find that transit was not the main purpose of entering the UK – rather, it was to undertake his present distribution services.

So there is a distinct possibility that the Home Office would require Santa to show a visa in order to enter the UK. The bad news there is, he had better get a move on. The Home Office website suggests applications from outside the UK should be decided within three weeks, although it is possible to apply for expedition. 

Would Santa qualify for a work visa?

The UK does offer visas for people working in the UK for short periods, including one that seems highly appropriate at first glance: Seasonal Worker. Counter-intuitively, though, this is a no-go unless Santa wishes to expand his operations to include pork butchery, poultry work, fruit/veg picking or driving a HGV.

The best temporary work visa options for Santa would seem to be the Charity Worker visa (as he is not getting paid) or perhaps the International Agreement visa. Both cost £244, reduced by £55 for people from eligible countries – including Santa’s likely countries of origin. However, both require a certificate of sponsorship from an employer, whereas it would be closer to the truth to describe Santa as self-employed.

In which case, how about an Innovator visa? The Home Office says that this is for people with a business idea that is “different from anything else on the market”. This seems likely to be met – no-one else does, or could do, what Santa does. The business must be “viable” with potential for growth. So long as people keep having children, that again looks like another tick. But it must also be “new” – not a business that is already trading. Short of rebranding/setting up a phoenix company (The Christmas Courier?), it is unlikely he’d meet this condition.

Ultimately, the best immigration advice for Santa might be to rely on the “transiting without a visa” rules, arguing that transiting is the primary purpose, with some additional gift distribution a secondary purpose; or else to get himself on the books with a registered children’s charity in the UK in order to fall under the volunteering exemption for visitors.

What about the sleigh?

OK, the sleigh poses a number of issues. If it counts as a vehicle, then Santa might rely on the Vienna Convention on Road Traffic. The UK is a signatory and so recognises national driving licences and international driving permits issued by other contracting states. Any motor vehicle registered in another Vienna Convention state must either show its state of registration in the number plate or separately at the rear of the vehicle.  

However, let’s not forget that the sleigh is also an aircraft. There is no longer mutual recognition of pilots’ licences post-Brexit. Private pilots have to make sure they have a licence from the state in which their aircraft is registered. Assuming the sleigh is registered in its state of origin, and Santa has a licence from the EU Aviation Safety Agency, he would probably be OK (though may need to check permissions re UK airspace).

And the reindeer?

Still more post-Brexit rules deal with transit of live animals. If moving between Great Britain and the EU/NI, then no physical inspections are required at the border, but there are quite a few documentary hoops through which the reindeer must be able to leap. They must be pre-registered on a specific system and have an Animal Health Certificate. Santa must also get transporter authorisation from the British Animal and Plant Health Agency – EU authorisation documents are no longer valid in Great Britain. 

As the journey is over eight hours, Santa may be asked to provide a travel log (though this is usually a condition for horses, cattle, pigs, sheep or goats) which should demonstrate that he is providing appropriate rest breaks for the reindeer. That should at least be familiar: if the rule does apply to reindeer as well as other ungulates, he will have had to do this before Brexit, along with equipping his sleigh with satellite tracking so that the authorities could verify his travel log was truthful. This is good news for the reindeer, but possibly bad news for his tight Christmas Eve schedule. 

Will there be customs checks?

To count as goods for personal use, so avoiding tax and duty liability, Santa would have to show that he was transporting the presents himself (tick), and that he intended to use them himself or give them away as gifts (tick). But unless the goods in question are alcohol and tobacco (what child gets those in their stocking?), they should only be worth up to £390, or £270 if arriving by private plane – which the sleigh likely counts as.

With approximately 12.7 million children in the UK (2019 data), that would come to 0.0021 pence worth of gifts per child. That’s not going to fund a whole lot of presents. Santa would likely need to declare the goods/gifts. This means declaring each item. So he is going to need to factor in quite a long potential delay. He should, however, be able to avoid paying duties on items which are of EU origin.

In short – it’s all still doable. But there’s a whole lot more paperwork and a labyrinth of procedures to navigate, leading to potential for delay, confusion and administrative rabbit holes. If Santa falls at any of those potential hurdles and fails to get through, we’ll know what’s to blame. Happy BreXmas!

Charlotte O'Brien is a Professor at York Law School, Principal Investigator at the EU Rights and Brexit Hub and the author of Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the UK (Hart, 2017).

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