Free movement has come to an end!

By Elaine Mcllroy, Brodies LLP

One of the issues that will be front of mind for employers in the oil and gas sector is how to recruit and retain talent now that free movement has come to an end. The frontier worker permit scheme may provide a solution for those employers who already had EEA cross-border workers coming to the UK for work before the transition period ended.

What is the frontier worker permit scheme?

The new frontier worker permit scheme opened on 10 December 2020. This scheme is designed to implement the commitments made in the EU Withdrawal Agreement to protect the rights of certain cross-border workers to continue to take up employment or self-employment in the UK after the end of the transition period. In order to qualify, the frontier worker must have a primary residence outside the UK - but they do not need to live within an EEA country.

Why might my employees want to apply for a frontier worker permit?

A frontier worker permit is flexible in that it is not tied to a specific job or to a specific employer. It would also allow a contractor to work on a self-employed basis. Once someone has the permit (which will usually be valid for an initial five years) they can continue to work in the UK without any other form of work visa. They will retain that status provided that they continue to be a frontier worker.

The permit is free. This is a significant advantage compared to other applications made through the new points-based immigration system. In addition to there being no visa fees to pay, the employer is not required to pay the immigration skills charge (usually £1,000 per year of the visa) and the individual does not require to pay the immigration health surcharge.

Who is eligible?

In addition to the requirement that the applicant's primary residence is outside the UK, the applicant must be an EEA or Swiss citizen. They must normally have worked or have been self-employed in the UK at least once in the 12-month period before 31 December 2020. There is a requirement that the employment was genuine and effective. In addition, in order to maintain frontier worker status, they must continue to come to the UK for the purpose of work or self-employment at least once in every rolling 12-month period from the date that they first worked, or were self-employed, in the UK in 2020.

There are some exceptions to these rules. For example, frontier workers who temporarily stop working in the UK in certain circumstances (e.g. because of illness or accident, following pregnancy or childbirth, or due to involuntary unemployment) may still have 'retained status' and therefore qualify for a permit. There are also exceptions if someone has not worked in the UK during certain periods when they otherwise would have due to COVID-19. The rules also set out what is meant by not being primarily resident in the UK.

What is the deadline for employees to apply?

Frontier workers will require a valid permit, as well as their passport, to work in the UK from 1 July 2021. Until 30 June 2021, they will still be able to enter the UK using their passport and they will not require any further evidence of their right to work.

How to apply

Those who wish to come to the UK to work from 1 July 2021, should apply as soon as possible. Individuals can apply online from inside or outside the UK. Supporting documents are likely to be required including paperwork from the employer.

Irish citizens working in the UK can continue doing so and will not need to apply for a permit.

Permits can be renewed indefinitely provided that the person continues to meet the definition of a frontier worker.

Comment

Employers should consider whether to encourage their employees to apply for a frontier worker permit. Some individuals may not be aware of the scheme which may provide a very useful form of permission to work.

Read the latest issue of the OGV Energy magazine HERE.