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Business travel between the UK and EU: immigration and visa rules

Business travel between the UK and EU: immigration and visa rules

Before 1 January 2021, British and EU citizens did not require a visa to travel across the Channel on a business trip. This is largely still the case post-Brexit, so we’ve been left with the appearance that nothing has really changed from a legal perspective. But with the end of free movement, immigration rules between the UK and EU have fundamentally changed, and business travel is no exception. While the pandemic has hidden some of the impacts of Brexit — we haven’t been travelling to/from the EU nearly as much — the fact remains that the legal landscape has changed considerably, with increased complexity and compliance risks for both UK and EU nationals.

UK to EU

In 22 of the 27 EU member states, plus Iceland, Lichtenstein, Norway and Switzerland, British business travellers are now at the mercy of two sets of regulations: the Schengen rules and country-by-country immigration laws.

The Schengen Area, established in 1995, removed internal border controls between signatory nations. Third-country (non-Schengen Area) nationals are allowed to enter the bloc for a total period of 90 days in any rolling 180-day period. The UK and Ireland were never part of the Schengen Area but the right of free movement meant that the Schengen rules did not apply before Brexit – now they do. British citizens have been made exempt from the need to apply in advance for a Schengen visa, but not from the limit on time spent in the area.

This 90-day rule applies simultaneously to trips for tourism and business purposes, meaning that a five-day business trip with a ten-day holiday counts as 15 days in the region. Calculating your Schengen allowance requires some mental gymnastics and an up-to-date calendar because the 180-day period is constantly rolling. The European Commission has a handy calculator but remembering to account for these days on an ongoing basis is an adjustment for many frequent business travellers.

Overstaying the 90-day rule carries the potential for a bar on entry to any Schengen Area country in the future. Frontex, the EU body responsible for policing the external borders, is updating the Schengen Information System to share overstayer and deportation information with all participant countries. The intention is that previous overstayers will be recorded and can be refused entry when arriving at any Schengen country.

Assuming the Schengen rules on entry are complied with, the next hurdle is the individual country’s internal immigration rules. Previously, UK nationals could do anything across the EU, including starting work the same day you arrived. Now, UK nationals are usually limited to visa-free entry for tourism and business activities.

What counts as “business activities” rather than full-on work is left up to each member state to decide. For example, a UK national can visit Italy to conduct an internal audit but requires a work permit to carry out audit activities in Spain. The fact that the rules on what counts as work can and do vary across the EU has been the source of acute controversy for touring musicians.

The UK government has published helpful country-by-country guides to assist business travellers. There are also several industry- and country-specific exemptions, but the point is they are just that – exemptions to the general legal position.

British business travellers must therefore be aware of both their travel history across the Schengen Area, and whether or not their activities can be conducted as a business visitor in the country they are visiting.

Additional complexity comes from the fact that EU members Bulgaria, Croatia, Cyprus, and Romania are not members of the Schengen Area. For these four countries, only the local immigration rules apply. The good news is that until these countries fully join the Schengen Area, days on the beach in Ayia Napa do not count towards your 90-day Schengen allowance.

There are no Schengen or national immigration rules to worry about for trips to Ireland. The Common Travel Area ensures free movement for British and Irish citizens moving between the two countries.

EU to the UK

By the same token, post-Brexit the UK is free to set short-term entry rules for each of the EU countries individually should it so choose. As things currently stand, all EU countries are treated the same, so EU citizen business travellers can enter the UK without needing a visa.

The UK has a more permissive policy than the Schengen rules, theoretically allowing entry for up to six months at a time. But a business traveller claiming to be attending meetings for the full six months is going to be viewed with considerable suspicion at the border.

The UK rules for business travellers are, mercifully, spelled out more clearly than those across the continent. For example, delivering training in a classroom setting is a permissible activity, while delivering on-the-job training is not. The details are in Appendix Visitor: Permitted Activities to the Immigration Rules.

In the first few weeks of 2021, reports emerged in the news of EU travellers being denied entry, held in removal centres or airport detention rooms, and ultimately removed from the UK. Home Office statistics have shown these anecdotal reports to be a trend that has continued through 2021. In the fourth quarter of 2019, around 600 EU travellers were “initially stopped” at the UK border. In Q4 2021, this was up almost 600% to 4,300.

This is perhaps not surprising given the fact that EU arrivals are now being assessed similarly to non-EU nationals. But with travel to the UK in Q4 2021 still significantly lower than in Q4 2019, it is fair to say that the proportion of EU arrivals facing questioning and possible removal at the border has increased even more sharply than the absolute number.

Port refusal or removal from the UK (or any country) carries several risks for a frequent business traveller. Not only will it have an impact on any attempts to re-enter the country of removal, but it is something that may have to be declared in applications for visas to other countries in the future. This can lead to delays or even visa refusals from other countries, impacting the flexibility of a traveller across the world. People refused entry to the UK are ineligible for the visa waiver next time and would instead have to apply for a standard visitor visa. This can add a significant lead-time to an otherwise routine trip.

EU business travellers arriving in the UK for the first time post-pandemic should prepare for additional scrutiny and be ready to precisely explain the nature of their visit, as well as having evidence of return travel arrangements and accommodation during their stay in the UK.

What’s coming?

The UK plans to introduce an Electronic Travel Authorization (ETA) scheme “by the end of 2024”. This will operate in a similar way to the United States ESTA that many readers will be familiar with. People who do not currently need a short-term visa to enter the UK for business or tourism, including EU citizens, will be required to complete an online form (details are yet to be released) and pay a fee before travelling to the UK. This is not, strictly speaking, a visa but a registration allowing the government to (they claim) check your information against national and international criminal databases.

Like a visa, the ETA must be approved before travel, meaning that first-time travellers to the UK will need a lead time of several days to get one. When travelling to the US, airlines check for an ESTA at the airport, and we expect the ETA will operate in the same way.

Across the channel, the European Union has developed the European Travel Information and Authorisation System (ETIAS), a pre-travel authorisation system similar to the ESTA and ETA. The ETIAS will be operational by the end of 2022 but will not be mandatory until some point in 2023, as a six-month grace period has been announced to allow travellers to become familiar with the new system. An ETIAS will be required for all travellers currently enjoying visa-free travel into the EU and the Schengen Area, such as US, Canadian, Japanese, Australian and British nationals.

Conclusion        

Business travellers have enjoyed the benefits of free movement in the EU for decades, and the idea of immigration risks for business travellers between the UK and EU had left our collective consciousness. As we come out of the pandemic, be ready to look specifically at the business activities you are undertaking in your destination country. This will be the key determining factor on whether you require an ETA/ETIAS or a more substantial work permit.

Jack Stokes is Director of Nomadic, a tech start-up dedicated to providing the next generation in business visa and short-term immigration compliance services.