Immigration Law Partner Spencer West LLP
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Frontier workers: do you need a permit?

11th Jan 2021
Immigration Law Partner Spencer West LLP
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The frontier worker permit scheme comprises a good option authorising work in the UK for many employees and self-employed individuals whose recent and planned future activities in the UK do not fit under the activities that visitors are able to undertake in the UK, but who equally do not meet the requirements for a UK work visa.

Frontier worker permits are available to European Economic Area and Swiss nationals who worked in the UK by 31 December 2020 but are not primarily resident in the UK. Employees and self-employed workers are eligible.

From 1 July 2021, frontier workers will require permits to enter the UK to work.

Eligibility

‘Not primarily resident in the UK’

In order to be considered not primarily resident in the UK, an applicant must have spent less than 180 days total in the UK in any 12-month period since 1 January 2020.

Alternatively, an applicant will be considered not primarily resident in the UK if either:

  1. In any 6-month period since 1 July 2020, they have returned to their country of residence at least once; or
  2. In any 12-month period since 1 January 2020, they have returned to their country of residence at least twice.

Another way of phrasing the requirement would be that the required travel to the country of origin has to be undertaken in each 6 or 12-month period since 1 July 2020 or 1 January 2020, respectively and that the 6 and 12-months periods are assessed on a continually rolling basis. The requirement does not relate to any single 6 or 12-month period, but any 6 or 12-month period at all since 1 July 2020 or 1 January 2020, respectively.

If an applicant can demonstrate that there are exceptional reasons for them not having returned to their country of origin within the 6 or 12-month timeframes, they might still be eligible to apply. Examples of exceptional reasons are pregnancy and childbirth. Being ill with COVID-19, mandatory self-isolating or international travel restrictions might also be accepted as exceptional reasons for being unable to travel to one’s country of origin in line with the eligibility requirements.

Working in the UK

The eligibility requirements relating to work are as follows:

  • The applicant started working in the UK whilst living elsewhere on or before 31 December 2020, either as an employed or self-employed person;
  • They have come to the UK to work at least once every 12 months since then; and
  • The work is ‘genuine and effective’ and not ‘marginal and ancillary’.

The terms ‘genuine and effective’ and ‘marginal and ancillary’ are derived from caselaw. There is no minimum hours requirement to be met. Rather, consider whether so little time and money is involved that the work is largely irrelevant to the applicant’s lifestyle.

Examples of marginal and ancillary work include the following:

  • Being briefed on the requirements of a UK based customer, if any work is done outside of the UK;
  • Attending short, individual meetings; or
  • Negotiating or signing a deal or contract, where the work is not carried out in the UK.

Caseworkers will consider a number of factors when assessing whether an applicant meets the eligibility requirements relating to work.

Documentation of the employment or self-employment will be required, e.g. a letter from an employer, contracts to provide services, copies of invoices or income tax documentation. We recommend getting in touch for advice on the factors and documentation relevant for a particular application.

Application process and fees

The application process involves the following steps:

  • Proving your identity to the Home Office, either through an app that scans your passport or national ID, or by attending an appointment to submit biometric data;
  • Completing and submitting an online application form; and
  • Submitting supporting documentation evidencing the relevant work in the UK.

Applications can be submitting from within the UK or from overseas.

There is no permit application fee but applicants who submit biometric data at an appointment might have to pay for this service.

Status, documents and renewals

A successful applicant will receive a frontier worker permit, valid for 5 years. Those who prove their identity to the Home Office via the app as part of the application process will receive a digital version of the permit. Those who submit biometric data at an appointment will receive a physical frontier worker permit.

The permit authorises work without tying an individual to a particular job, or to one form of work i.e. employment or self-employment.

Frontier worker permit holders are required to inform the Home Office if they stop working in the UK, though retaining a form of status in allowed in some circumstances.

Frontier worker permits are renewable for those who continue to meet the eligibility requirements.

 

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