A British lorry driver’s ham sandwich confiscated by Dutch border guards. Scottish seafood exporters’ boats tied up because they’re struggling with the paperwork. Following the EU and UK’s trade agreement last month, people are beginning to bump up against the day-to-day consequences.
Most British business travellers have yet to find out what the agreement means, though, because they are stuck at home waiting out the coronavirus pandemic. When they do start travelling to the continent they will find themselves battling with detail unthinkable in the decades when they could roam the EU, doing deals, providing services and staying as long as they liked.
Lodged in the more than 1,200 pages of the trade agreement are a host of restrictions on where UK business travellers can go and what they can do — and none of them are easy to understand. The agreement is “fiendishly complicated”, says Catherine Barnard, professor of EU and labour law at the University of Cambridge.
The first question UK business travellers to the EU need to ask is: “Am I going to be paid?” If you are travelling to attend a meeting, speak at a conference, attend a trade fair or negotiate a deal, the general rule is that you can stay for 90 days in any 180 without a visa or work permit — as long as no money changes hands.
This part looks simple, but it isn’t, because many EU countries have put further limits in the agreement. There’s no uniformity among the EU 27. It’s not just that the UK has left the single market — for the UK business traveller looking at the entry rules, there is no longer a single market.
If you provide a service as part of your unpaid work, for example, Denmark, Cyprus and Croatia insist you apply for a work permit and satisfy an “economic needs test”, which means the authorities will assess the effect of your trip on local providers. The economic needs test crops up frequently in the agreement. Moji Oyediran, a business immigration specialist at law firm Travers Smith, says this will probably mean advertising first to see if anyone local can do what you’re planning to do.
If you want to visit Austria to do unpaid research, you’re fine if you intend to engage in “activities of scientific and statistical researchers”. If not, you will need a work permit and have to satisfy an economic needs test. There are plenty of other EU country-specific restrictions on travelling to do non-paid work.
If you’re a business traveller doing paid work for an EU client, either as a “contractual service supplier”, which means your UK company is providing a service in the EU, or an “independent professional”, you will generally need a work visa but again, it’s more complicated still. For architects and urban planners, for example, Finland demands “special knowledge relevant to the service being supplied” and several countries, including Germany and the Czech Republic, will impose an economic needs test. There’s an economic needs test if you’re a contractual service supplier selling advertising services in a list of countries, including Austria, Finland and Denmark.
If you fulfil the requirements you can stay for as long as you have a contract, although that can’t be longer than 12 months. But to get your work visa as a contract service supplier, you have to have at least three years’ experience in the field, a university degree or equivalent and any professional qualifications the EU country requires. If you’re an independent professional you need six years’ experience.
Nicolas Rollason, a lawyer at Kingsley Napley, says companies will probably have to consult local lawyers in each country about what the entry requirements are. As Sarah Hall, economic geography professor at the University of Nottingham, points out, this will be easier for large employers — she worries about the smaller ones.
Rollason says that until people start travelling again, we won’t know how seriously each country’s immigration officers intend to take these rules. But he says that British travellers will probably have to get used to carrying proof of hotel bookings, evidence they can support themselves, and return tickets. This has long been standard practice for travellers coming into the EU from outside. “It’s ‘welcome to everyone else’s world’ when it comes to travelling,” he says.
Some UK business travellers may say, well, who needs to travel? We’ve been working on Zoom for months now; we can simply carry on. It is not that simple. As Barnard points out, there is a “chilling effect”. If your EU competitors can travel freely, why should companies bother with a UK provider? There are plenty of EU suppliers happy to do the work.
There’s one group that will do well out of this: UK-based EU passport holders, who will be able to advertise themselves, both to British employers and to EU service buyers, as being able to travel unhindered around the bloc. Best-placed of all will be Irish passport holders, who can not only travel in the EU, but live and work freely in the UK too. Cecil Rhodes, the British mining magnate and colonialist, once described being English as “the greatest prize in the lottery of life”. Post-Brexit, it’s the Irish who hold the winning ticket.
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