Business Travel after Brexit – what can I do or not do?
Published on 14th Jun 2021
Now that the European Union and the United Kingdom are gradually lifting their travel restrictions, we see borders beginning to open up. What do international businesses need to be thinking about going forwards with The Trade and Cooperation Agreement (TCA) roll-out to arrange for business travel in a compliant way?
Prior to 1 January 2021, the Freedom of Movement provisions meant that there were no restrictions on movement or activities undertaken between the EU and the UK. On 1 January 2021, the freedom of movement ended. The EU and UK agreed upon a trade deal laying out the terms of their economic relationship after Brexit - now we have the TCA and the activities that can be undertaken as a visitor are less clear.
What is the TCA and what does it do?
The TCA sets out preferential arrangements between the UK and the EU in areas including, for in-stance, trade in goods and services, social security coordination and temporary stays for business purposes.
Under the TCA, UK nationals intending to stay in an EU country for periods exceeding 90 days for any purpose (work, research, study, training) will be subject to the same rules applicable to third country nationals, as set under EU Law and EU countries' national laws. EU citizens intending to move to the UK will need to comply with the new immigration scheme established by the UK government (the settlement scheme).
US businesses with an international workforce working and traveling between the EU and the UK should be aware of what is permitted or not under the TCA.
What activities are permitted as a business visitor under the TCA?
As a matter of principle, the EU and the UK provide for visa-free travel for short-term visits, and allow entry of short-term business visitors without requiring a work permit, an economic needs test or other prior approval procedures of similar intent, provided that short-term business visitors:
- are not engaged in selling their goods or supplying services to the general public;
- do not receive remuneration from the location they are in temporarily (either UK or EU);
- are not engaged in the supply of a service directly to a consumer in the territory where they are staying temporarily, except for permitted activities listed in the TCA
The TCA directly allows for UK or EU national business visitors to do the following activities:
- Attending meetings and engaging in consultations with business associates.
- Independent research by technical, scientific and statistical researchers.
- Research or analysis by market researchers and analysts.
- Business visit for establishment purposes.
- Receiving training in techniques and work practices.
- Attending a trade fair for the purpose of promoting their company or its products or services.
- Receiving orders, negotiating sales, or concluding sales agreements of services or goods as the representative of a supplier of services or goods.
- Purchasing goods or services for an enterprise or, limited to management and supervisory personnel, engaging in a commercial transaction.
- Providing after-sale or after-lease service.
- Engaging in a commercial transaction (limited to management and supervisory personnel and financial services personnel).
- Engaging in tourism services.
- Supplying services as a translator or interpreter.
However, the TCA also contains country specific restrictions based on activities and industry sector as a result of their domestic laws.
Are US nationals traveling for business between the UK and the EU impacted by the TCA?
No. The TCA only affects UK nationals and EU nationals traveling between the UK and the EU, and from the EU to the UK.
What is a Frontier Worker?
A cross-border (Frontier Worker) is someone who lives on one side of the border, but has worked regularly on the other side. Although a Frontier Work Permit allows working, it will not lead to permanent residence.
If someone is already resident in the UK or the EU, do these restrictions apply?
If a UK/EU national has been living or working in a territory before 1 January 2021, they can apply for a residence permit which would serve as evidence of their continued right to live and work there. Beware, as the deadline for applying is 30 June 2021. However, the deadline might be different in some EU countries (for example, 31 December 2021 in Belgium).
Is your UK or European workforce allowed to travel visa-free between the UK and the EU without exceeding 90 days over a rolling 180-day period:
- to attend meetings with business associates under the TCA?
No, if your UK or EU workforce also intends to meet with clients in order to deliver goods to their clients.
- to attend a training seminar?
Yes, provided that the sole purpose of the visit is to receive training in techniques and work practices which are utilised by companies or organisations in the UK or the EU, and provided that the training received is confined to observation, familiarisation and classroom instruction only.
No, if your UK or EU workforce intends to deliver a training to clients or the general public.
- to engage in a commercial transaction on behalf of their employer set up in the UK or the EU?
Yes, provided that the business visitor is a member of the company management or of the supervisory personnel and financial services personnel (for example, insurers, bankers and investment brokers).
No, if your UK or EU workforce is not a member of the company management or of the supervisory personnel and financial services personnel or if their visit in the UK or the EU exceeds 90 days over a rolling 180-day period.
- to attend a trade fair for a week?
Yes, provided that the business visitor is attending a trade fair for marketing purposes, such as to give information to potential customers.
No, if the purpose of their visit is selling goods to the general public.
- to set up a branch or subsidiary in the UK or EU?
Yes, provided that the traveller is a person working in a senior position within a company, who is responsible for setting up an enterprise of such company in the UK or EU, not offering or providing services or engaging in any economic activity, unless required for the purposes of the establishment of that enterprise, not receiving remuneration from a source located within UK or EU.
No, if the purpose of their visit is to offer or provide services or engaging in any economic activity.
- to attend negotiations?
Yes, provided that the business visitor is involved in the acceptance of orders or contract negotia-tions for services or goods.
No, if your UK or EU workforce also intends to deliver services or goods to clients.
- to install and maintain equipment sold to a company client?
Yes, provided that the business visitor has a specialized knowledge and provides after-sale service pursuant to a service contract incidental to the sale of equipment or machinery. In addition, Spain requires that the business visitor has been employed by the employing entity at least three months previous to the business visit and has at least three years of relevant professional experience.
No, if your UK or EU workforce intends to provide after-sale services regarding goods other than commercial or industrial equipment or machinery (including computer software).
- to conduct sales for a supplier?
Yes, provided that the business visitor enters into an agreement to sell services or goods without delivering goods or supplying services themselves, and without making direct sales to the general public.
No, if your UK or EU workforce intends to negotiate the sale, and also supply the service them-selves.
- to conduct market research?
No, if your UK or EU workforce also intends to deliver goods themselves.