International mobility

Trends in international mobility after COVID-19 and Brexit

Stefan Nerinckx, Partner, Employment and Pensions & Gillian McKearney, Senior Associate, Head of UK Immigration, Fieldfisher

The COVID-19 pandemic and Brexit have undoubtedly had an impact on many aspects of business, including international mobility.

Following a recent survey where companies from different sectors were interviewed, Vlerick Business School presented its results on the present and future status of short international assignments after COVID-19.

Short-term international assignments (SIA) are being defined as typically lasting between 30 days and 12 months, so longer than a business trip but shorter than traditional long-term assignments/transfers. The reasons for an SIA are twofold: development-based (part of the talent development strategy, for leadership development purposes and retention) and need-based (consulting/expertise exchange, project-based work or management control). Individuals younger than 35 years old generally take up an SIA for career development reasons, whereas the second category attracts mostly seasoned specialists and experts.

Although most companies interviewed had an SIA policy, their selection and the training and development of the candidates was less organized. The survey also looked at the future of assignments, and more specifically SIAs after COVID-19. Although companies before the COVID-19 crisis were convinced that SIAs were to grow to the detriment of long-term assignments, they now predict a decrease in all forms of international mobility due to the suspension of business travel, cost reduction measures, CSR (environmental considerations) and because employees are less willing to travel due to the associated risk. The survey predicts however that need-based SIAs will be less affected.

Interesting to note is that companies seem to be introducing a new scenario for international mobility: the 'blended assignment', i.e. virtual working from home in combination with regular business trips. Several companies see the combination of home-working with intermittent business trips as a short-term and, in some cases, a long-term solution.

Blended assignments and Brexit: The solution?

With Brexit, blended assignments might also be welcome by companies which will not comply in time with immigration formalities for their employees to enter the UK or the European Economic Area (EEA), or that will not be able to comply at all.

Business trips – which do not include actual work – will not require the person to obtain proper immigration documents other than a valid passport. They can be combined with teleworking in the state of residence of the worker. However, some EEA states have a specific legislation for business trips, while others don't.

Furthermore, the legislation on business trips differs considerably between EEA states, in particular between Belgium and the UK.

Inbound Belgium

As with other third-country nationals, UK nationals are exempt from the work permit and LIMOSA declaration if they only attend meetings in a closed circle in Belgium. To be exempt, they must not spend more than a total of 60 days per year at such meetings in Belgium. Furthermore, no such meeting may last longer than 20 consecutive calendar days. It is important to make the distinction between meetings and the performance of actual work. For example, the General Manager of a UK-based group headquarters is exempt if (s)he comes to Belgium to hold evaluation meetings for eleven days with the European Country Managers at the European headquarters.

British citizens holding a national passport don’t need a visa to enter Belgium. The European Commission indicated that this is dependent on the UK continuing to offer reciprocal visa-free access to European Union citizens. They will be able to travel to countries in the Schengen Area for up to 90 days in any 180-day rolling period without a visa for purposes such as tourism. For longer stays, British citizens will need to meet the entry requirements set out by Belgium. This would mean applying for a visa.

A citizen of a non-EU country who wants to work in Belgium must apply for a work permit (<90 days) or for a Single Permit (>90 days) with the competent Region via their employer.

UK citizens who are already residents of Belgium since before December 31, 2020 and UK frontier workers in Belgium before the end of the transition period (M- and N-card holders) are exempt from visa/work permit requirements or other similar formalities, provided that they apply to be recognized as beneficiaries of the Withdrawal Agreement at the competent municipal administration. In practice, an application for a new type of residence permit will have to be filed by December 31, 2021. Specific documents will have to be provided to the authorities to prove that the UK national qualifies for the Withdrawal Agreement exception and that they should not be subject to the third-country national rules applicable to UK citizens as of January 1, 2021. The current type E (residence) and E+ (permanent residence) permits will remain valid for now, but will expire automatically on March 31, 2022. The new M-card will be valid for five or 10 years, depending on whether the individual has a residence or permanent residence right on the Belgian territory. The N-card will be valid for five years.

Inbound UK

From January 1, 2021, EEA citizens can visit the UK for a business trip provided they can demonstrate that they are entering the UK as a genuine visitor for the purpose of carrying out one or more of the permitted business activities. However, a visa is required prior to entry in order to be able to undertake productive work in the UK, and the category cannot be used to circumvent the work visa requirements. A visitor must not be filling a role or providing short-term temporary cover for a role within a UK-based organization.

The length of a visit is not relevant when determining whether a work visa is required – UK Visas and Immigration (UKVI) will look to the substance of the trip and the type of activity to be carried out during the stay in the UK to determine if the individual is genuinely visiting and is not working. UKVI will also consider previous trips to the UK and refuse an application/entry if the visitor is in fact living in the UK through frequent or successive visits or making the UK their main home. One of the factors considered in assessing this is whether they have spent more time in the UK than their home country in the last 12 months. In practice, applicants coming for longer than two to four weeks are likely to have to provide justification as to the length of the visit if they are questioned by a UK immigration officer, such as an itinerary and description of the activities they will carry out and any reasons as to why a longer visit is necessary. UKVI can refuse an application or entry at the UK border if the applicant's exclusion from the UK is conducive to the public good, such as if the applicant's conduct (including convictions), character, associations, etc., make it undesirable to grant them entry into the country.

The Immigration Rules dictate that any person who visits the UK for business purposes must:

  1. Leave the UK at the end of their visit;
  2. Not live in the UK for extended periods through frequent or successive visits or make the UK their main home;
  3. Be genuinely seeking entry for a purpose that is permitted by the visitor routes;
  4. Have sufficient funds to cover all reasonable costs in relation to their visit without working or accessing public funds. This includes the cost of the return or onward journey (this is usually demonstrated by return flight evidence), any costs relating to dependents and the cost of planned activities such as private medical treatment;
  5. Not intend to work in the UK, which includes: taking employment in the UK; doing work for an organization or business in the UK; establishing or running a business as a self-employed person; doing a work placement or internship; direct selling to the public; and
  6. The person must only undertake "permitted activities", so they cannot take up employment or provide short-term cover for a role in a UK-based organization. In addition, where the applicant is already paid and employed outside of the UK, they must remain so. Payment may only be allowed in specific circumstances.

The business visitor immigration route is complex. If a business visitor steps outside of the list of permitted activities and performs productive work, this could constitute illegal working in the UK. Currently, the fine for employing an illegal worker is up to £20,000 for each person employed illegally. Anyone who knowingly employs an illegal worker is criminally convicted, and they face a custodial sentence and/or a fine for this offence.

If an EEA national is employed and paid in the UK, works remotely in the EEA and travels to the UK as a business visitor, (s)he may be in breach of UK visa rules – as business visitors cannot be paid in the UK for business activity – and they may require a work visa.

Those wanting to work in the UK will need to obtain sponsorship and apply for a visa either in the Skilled Worker or Intra-Company Transfer categories for employees, or via the International Agreement Worker route for EEA workers coming to the UK to service a contract under the UK-EU Trade and Cooperation Agreement. This will mean increased costs and bureaucracy for those sponsoring EEA nationals.

EEA nationals who arrived in the UK before December 31, 2020 must apply to the EU Settlement Scheme by June 30, 2021 for pre-settled or settled status depending on how long they have lived in the UK and will not then require sponsorship to work in the UK. EEA nationals who were in the UK as frontier workers before December 31, 2020 can apply for a frontier worker permit to continue working in the UK.

Teleworking

Blended assignments as determined in the survey conducted by Vlerick Business School also refer to homeworking or teleworking. Also in this respect specific rules have to be taken into account when cross-border teleworking is involved. We will elaborate on teleworking in an international mobility scenario in a future article for AmCham Belgium.

Conclusion

International mobility is surely changing due to the COVID-19 pandemic and Brexit. But mobility for work will always remain an important part of doing business. If well prepared, a lot of hurdles can be easily overcome.

About the authors

Stefan Nerinckx, Partner, Employment and Pensions, Fieldfisher

Stefan Nerinckx is an Attorney and Partner, heading the Employment Law practice in Brussels and is the international practice leader for Employment Lawyers at Fieldfisher. With more than 29 years of experience in (international) employment, social security and business migration matters, he covers the full range of individual and collective Labor and Employment Law. He is a prolific writer (e.g. co-editor of a legal journal), professor of employment law at the University College Brussels (Odisee/EMS-KUL) and a public speaker at conferences. He is for years praised by clients and peers in most legal guides such as Chambers, Legal 500, Best Lawyer's, Leaders League. 

Gillian McKearney, Senior Associate, Head of UK Immigration, Fieldfisher

Gillian is Head of UK Immigration and a Senior Associate in the London EPIC (Employment, Pensions, Immigration, and Compliance) group, specializing in UK inbound immigration. She has extensive experience in all aspects of Business Immigration, including assisting with work visas, business visitors, compliance advice, strategy, European applications, indefinite leave to remain, sponsorship and the right to work checks.  Prior to joining Fieldfisher, she worked at a top tier Chambers-ranked immigration firm.  She has 12 years of immigration experience, which includes assisting with complex cases and appeals.