Doing business after Brexit: Does the International Agreement route save cross-border arrangements?
What is the problem?
Pre-Brexit, free movement meant that EU nationals could travel to the UK to provide services, fulfil contracts, and generally carry out economic activity without needing prior approval. The same was true for UK nationals travelling to mainland Europe. The duration of this arrangement led to entrenched business practices, both in terms of individual organisations and whole sectors. Put simply, everyone was used to an absence of specific requirements to carry out their usual business dealings.
Post-Brexit and the end the free movement, some organisations and individuals have found themselves in a difficult situation. The once frictionless system has been replaced with sometimes onerous requirements under the UK’s Immigration Rules, with Brits facing similar restrictions in EU member states. A handful of business activities can still be carried out by EU nationals visa-free. This includes any expressly permitted activities under the business visitor rules. Examples can be very specific – such as permission for a person to enter the UK for the installation/maintenance/repair of machinery or software – which is both helpful and a hindrance in equal measure. Where a planned activity is permitted, the traveller can be safe in the knowledge that their activities will be acceptable. Where a planned activity is not expressly included in the rules, travellers can find themselves uncertain as to their permissions, or simply without the ability to act as needed.
What is the International Agreement route?
The International Agreement route addresses some – but certainly not all – of these issues. In broad terms, the route allows a qualifying individual to carry out cross-border activities if sponsored in the UK by the end user. This differs to the traditional Skilled Worker visa because the UK sponsor is not becoming the employer of the individual, and is not directly responsible for paying their wages. Instead, individual and sponsor demonstrate that there is a UK trade agreement (or perhaps international law) applicable to their planned activities.
The sponsored individual will be either a contractual services supplier or an independent individual (eg a self-employed expert). They travel to the UK to fulfil a contract with the UK business which receives the benefit of the contract. This route existed pre-Brexit, and the most common trade agreement on which people relied was the World Trade Organisation General Agreement on Trade in Services (GATS). As a result of Brexit, we now have the UK-European Union Trade and Cooperation Agreement (TCA; and a comparable agreement with Switzerland), in theory widening the scope of the International Agreement route when doing business with our European neighbours.
How could it help?
The process is more streamlined than the Skilled Worker sponsorship option, with no need for the UK entity to be concerned about paying the individual’s salary, for example. Travellers do not face English language requirements (so no English test before the visa application). The activities permitted under the International Agreement route are wider than those under the business visitor rules, allowing for more scope to continue pre-existing business relationships.
What are the limitations?
The first is time. Under the post-Brexit trade agreements, a worker is usually restricted to 12 months in the UK. Under GATS or some other agreements, only 6 months are allowed in any 12-month period. Another limitation is the nationality of the intended traveller, which often needs to match that of the business or party contracting with the UK sponsor. (Some exemptions apply where the individual has permanent permission to live in the country of the contracting party.) In addition, all parties must be sure that the relevant trade agreement covers the intended UK activities. Not all sectors or specialisms are provided for, and the traveller often needs specific qualifications and/or experience.
For the UK business, the downside of this route is the need to provide sponsorship. Applying for a sponsor licence incurs cost, both monetary and in terms of people’s time. Sponsorship is a continuing commitment for any business, and many are understandably reluctant to follow this route unless necessary.
What are the alternatives?
For most organisations, alternatives are sought to avoid the need for formal sponsorship and associated visa applications. The simplest alternative is travel as a visitor, but to satisfy the restrictions of this route, individuals must be mindful of their UK activities, UK payment, and the duration of their travel. Other workers may find that the frontier worker permit scheme is a fit for them if they have already established a work history in the UK pre-2021 but remain living in the EU. Beyond these short-term options, other routes are often no less complicated than the International Agreement path.
Where does trade go from here?
The key is gaining understanding of the options available and the constraints of each. An individual who travels as a visitor but goes on to carry out activity not permitted under that route can find themselves in serious difficulty. Their status can be cancelled, future travel to the UK denied. UK businesses who unwittingly employ an individual without the correct work permission are liable for a civil penalty. Business and individuals alike need to plan how UK activities can be performed appropriately.
If sponsorship is required, it is important to seek advice about the process. Business agreements are usually time sensitive, and mistakes in the licence application can lead to delays, even a ‘cooling off’ period of 6 months if an application is refused.
If you would like to speak to one of our experts about International Agreement visas, business visitors, or business migration in general, call us on 0300 131 6767 or complete our website enquiry form.
