Frontier Work Permits, another reason HR must be careful what they say

Contractors working at corporates in the UK are some of the likeliest Britons to have Frontier Work Permit-holders who are EU citizens join them, shoulder-to-shoulder, in the workplace, most likely as employees, but self-employed workers are eligible too for these new visas, writes business immigration expert Laura Darnley, a director at Brabners LLP.  

We've been advising the self-employed...

In fact, we’ve been providing advice on FWPs to the self-employed and independent consultants who are based outside the UK but undertake an economic activity here (as per the eligibility criteria of FWPs). And by ‘self-employed,’ I’m referring to individuals who might be running their technology or other knowledge services business abroad, but who come to the UK to provide their services.

We’ve also been providing advice – in greater volumes – to corporates, as these larger businesses are investigating FWPs for their employees. And really, the likes of us are the only ones who should be providing such advice! This isn’t a shameless plug. Rather, it’s the case that providing immigration advice in the UK is a regulated activity.

A risk of prison

The upshot is that any person who provides immigration advice and who is not regulated to provide such advice is potentially committing a criminal offence. It’s actually an offence that is serious enough to warrant jail time! In practical terms, this means that while their HR managers are the ones who corporates might initially turn to for help with FWPs, such managers actually need to be very careful about what they say. Specifically -- that what they say does not constitute providing ‘immigration advice.’

Problematically, there is no legal definition of what constitutes ‘immigration advice.’ However, this is normally taken as meaning the ‘applying of it’ to individuals, or the ‘interpreting of it’ in some way.

For example in the context of the EU settlement Scheme, the UK government factsheet states: “You should not interpret information on the EU Settlement Scheme provided by the government and you must be careful not to provide immigration advice for your employees, unless you are qualified to do so.”

No longer niche

Increasingly, in the Brexit age, and with companies looking to plug some quite gapping skills gaps, compliance with immigration requirements is moving away from being a niche activity. Instead, it is something that all HR departments should be getting up to speed with. And quickly. But HR managers should engage with regulated professionals (such as ourselves), who can give the relevant immigration advice when required. Or they risk criminal sanctions.

For the workers themselves (i.e. the actual FWP-holders), EU nationals need to remember they are now subject to the UK’s full visa regime, and the compliant, potentially even hostile-looking environment which that entails. They must have the correct immigration permission to enter the UK based on what they are coming to do, and how long they want to stay here.

The future

In time, our hope is that Home Office guidance matures to give richer examples to help workers understand if they’re eligible for an FWP. For example, a case study given in the FWP guidance is that of a French national who lives in the Republic of Ireland but travels to Norther Ireland -- to cut a client’s hair. While this case study will be helpful to the obviously droves of French nationals living in Limerick but barbering in Belfast, it is in the sports, manufacturing and engineering sectors where we are seeing the most activity around FWPs. At the time of writing however, there is no published information from the Home Office that would shed any light on who is applying for these visas -- something else that should also hopefully emerge in the passage of time.

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Written by Laura Darnley

Laura is Head of the Business Immigration Team at Brabners. She is a very experienced employment and business immigration lawyer who has practised for over 15 years. She advises businesses and individuals on all aspects of immigration law including compliance, work permits and employer sponsorship, the prevention of illegal working and business travellers (including the visitor rules and frontier worker permits). Currently she is helping businesses adapt to the post-Brexit changes.

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