Frontier Worker Permit – an alternative to EUSS status?

Frontier Worker Permits - Overview

A frontier worker is an EU, EEA or Swiss citizen who is employed (or self-employed) in the UK but lives primarily in another country. An individual will be able to keep their current Frontier Worker status if they are frontier working in the UK by 31 December 2020. However, they will need to apply for a Frontier Worker Permit when the route launches on 10 December 2020.

Frontier workers will not need a permit to enter the UK until 1 July 2021. Like with the EU Settlement Scheme (EUSS), EU frontier workers employed in the UK by 31 December 2020 will have a six-month grace period between January 2021 and June 2021 to apply for a Frontier Worker Permit.

Frontier Worker Permits - Policy Background 

Under EU free movement laws, frontier workers from EU countries are allowed to enter the UK and work without needing specific immigration permission. 

The end of free movement means the immigration status of frontier workers in the EU becomes a key issue. However, under the Brexit Withdrawal Agreement, the UK Government committed to offering protection to frontier workers who began working in the UK before 31 December 2020. 

Many frontier workers currently working in the UK may be eligible to secure pre settled or settled status under the EUSS. The EUSS was established to register and confirm the status of EU nationals residing in the UK up to 31 December 2020.

For those not eligible for the EUSS, however, the UK Government’s solution is the new Frontier Worker Permit. Although no legislation on the Frontier Work Permit has yet come into effect, the draft Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 (‘Regulations’) were released recently. The Regulations provide a framework for the Frontier Work Permit, although we are still awaiting Home Office Guidance on the Frontier Work Permit scheme to flesh out the detail which should become available when the route launches on 10 December 2020.

Who is eligible for a Frontier Worker Permit? 

To be eligible for the Frontier Work Permit, a frontier worker is someone who meets the following criteria before 31 December 2020 and continues to meet the criteria since:

• They are an EEA national (including Swiss nationals)
• They are not primarily resident in the UK and
• They are one of the following:
  • A worker in the UK
  • Self-employed in the UK
  • A person who has retained the status of being employed or self employed

This means the Frontier Work Permit will only be available to those who begin working in the UK before 31 December 2020 and who continue in this working pattern until they apply for a Frontier Work Permit.

What does ‘not primarily resident’ mean?

According to the draft Regulations, someone will be treated as ‘not primarily resident in the UK’ if at a ‘particular point in time’, 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 date 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 date, unless there are exceptional reasons for not having done so

This definition of residence is significantly broader than under EU law (which requires someone to return to their home country at least once a week to have the legal status of frontier worker). This definition of being ‘not primarily resident’ can therefore encompass individuals who spend the majority of their time in the UK and only make the odd trip home every 6 months.

Conversely, we are awaiting further Home Office Guidance on how infrequently an individual can come to the UK to work and still qualify for a Frontier Work Permit. How little time an individual can spend in the UK will likely depend on how the Home Office interpret who is a ‘worker’. 

Under EU free movement provisions (which the Frontier Work Permit is designed to protect), work must be ‘genuine and effective’, but it is unclear how many hours/days physically working in the UK this means. 

A frontier worker comes to the UK to undertake productive and paid work, which is not allowed under the UK’s business visitor ‘permitted activities’ rules. Accordingly, as EU workers who travel regularly to the UK on business need a viable visa option, it is hoped that the Frontier Work Permit may provide the necessary solution.

Applying for a Frontier Worker Permit 

We know so far:

• The Frontier Worker Permit Scheme will formally launch on 10 December 2020
• It will be an online application process, with applicants able to apply from inside or outside the UK
• Applications will be free
• Applicants will need to submit evidence of their identity and frontier worker status
• Applicants will receive an electronic status rather than a physical ID card, similar to EUSS applicants

Frontier Worker Permit: Rights and Immigration Status

If successful, the Frontier Work Permit will be valid for 5 years and constitutes a right of admission to the UK.

An Frontier Worker Permit does not lead to settlement (indefinite leave to remain) in the UK. However, the Frontier Worker Permit can be renewed.

If an EU national working in the UK by 31 December 2020 wishes to secure long term settled status in the UK, they should therefore apply under the EUSS.  

Frontier Workers and Key Dates 

• Until 30 June 2021, frontier workers (who are employed in the UK by 31 December 2020) can continue to enter the UK using their valid EU national identity card or national passport 
• From 1 July 2021, frontier workers must hold a valid Frontier Worker Permit, as well as their valid EU passport or National ID card, to enter the UK as a frontier worker
• The Frontier Worker Permit will only be available to those who begin working in the UK before 31 December 2020 
• From 1 January 2021, non-UK nationals (including EU Citizens) who wish to begin employment in the UK while remaining resident outside the UK will need to apply for a visa through the new points-based immigration system 

Frontier Worker Permits and your EU employees

In order to consider how relevant the Frontier Worker Permit option may be to your business, we recommend you undertake an audit of: 

• How many of your EU employees are currently working overseas 
• Whether working remotely is likely to continue for the foreseeable future
• How often they need to physically work in the UK

and that you encourage EU employees to keep an Excel spreadsheet to monitor their UK absences.

We recommend that any existing EU employees first try and secure their status under the EUSS if eligible to apply. A successful pre settled status application will give an EU employee a five year ‘permit’ to continue to work in the UK. Employees who are granted pre settled status, however, who spend more than 6 months a year outside of the UK are unlikely to qualify for settled status due to the ‘absence’ rules.

However, the Frontier Worker Permit can be considered a useful ‘back up’ option for EU employees who may need to apply for a Frontier Worker Permit if they are unable to qualify under EUSS, or under the Intra-Company Transfer route if you do not hold a valid UK sponsor licence.