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New frontier worker route launched in the UK from 10 December 2020

Written by
Lewis Silkin, widely recognised as the UK’s leading specialist employment law practice.
Authors
Joanna Hunt
Lewis Silkin
Parvin Iman
Lewis Silkin
Kathryn Denyer
Associate - United Kingdom
Lewis Silkin
United Kingdom
04.01.21
5
On 10 December 2020, the UK opened up a process for EEA nationals to apply for a frontier worker permit. This will allow some cross-border commuters who work in the UK but live abroad to continue their working pattern after the end of the Brexit transition period.

The frontier worker permit will help EEA nationals who occasionally work in the UK. For instance, non-Irish EEA citizens who live in the Republic of Ireland and occasionally work in Northern Ireland, or a French national who travels to work in London on a frequent basis. However, assessing eligibility for a frontier worker permit may not be straightforward and in many cases a frontier worker may be better placed to apply under the EU Settlement Scheme. It is therefore necessary to assess the best option for frontier workers on a case-by-case basis. If they do apply for a frontier worker permit, they will need to be informed about what the requirements are to maintain and renew their permit.

What is the definition of a frontier worker? 

A frontier worker is an EEA national who starts work in the UK by 23:00 on 31 December 2020 (the end of the Brexit transition period) but who is primarily resident outside the UK. The work in the UK can either be on an employed or self-employed basis. 

An Irish national who is a frontier worker can continue to work in the UK without any restrictions after the end of the Brexit transition period so will not need to apply for a frontier worker permit, however they can choose to if they wish. 

Frontier worker status can be retained where a person has stopped working temporarily. For example: 

  • An EEA national who has been working in the UK for a year or more but is temporarily unable to work as a result of involuntary unemployment will retain their frontier worker status for six months, or longer if they can show compelling evidence of continuing to seek work in the UK.  
  • An EEA national who has become involuntarily unemployed after working in the UK for less than a year will retain their status for six months only. 
  • There are also provisions for an EEA national to retain their worker status in certain circumstances if they have temporarily stopped work due to illness, accident, pregnancy or childbirth, or they have taken up vocational training.  

 

The requirements for retaining frontier worker status are complex and we would recommend seeking specific advice on the provisions as necessary.   

How much time should a frontier worker spend in the UK? 

Frontier workers must not be primarily resident in the UK, i.e. their main residence and home must be elsewhere, but not necessarily in the EEA. Under EU law, frontier workers are expected to return to their home country ‘at least once a week’. The UK has decided to adopt a more liberal definition of being ‘not primarily resident’ under the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020. According to the Regulations, an EEA national who falls under one of the following categories is not ‘primarily resident in the UK’:  

  • an EEA national who has been in the UK for less than 180 days in the last twelve-month period; or  
  • an EEA national who has returned to their country of residence at least once in the last six-month period, or twice in the last twelve-month period.  

 

An EEA national who spends the majority of their time in the UK can still benefit from frontier working provisions, as long as they comply with the second of the two requirements above. However, it is important to note that a frontier worker permit will not lead to settlement, but it can be extended on multiple occasions.  

EEA nationals wishing to settle in the UK permanently should ensure they apply by 30 June 2021 for pre-settled status under the EU Settlement Scheme rather than using this route. 

It may also be possible for a person who spends very little time in the UK working to be classed as a frontier worker. What will be key is whether their activities in the UK amount to ‘work’. The provisions state that an EEA national must carry out work in the UK that is ‘genuine and effective’ rather than ‘marginal and ancillary’. This means that work carried out in the UK must not involve so little time and money that it is not relevant to the lifestyle of the EEA national while they are in the UK. For example, an interview or one-off business meeting will not be considered genuine and effective work. 

An EEA national will need to produce evidence of their work in the UK to prove that they are genuinely a frontier worker. The Home Office has published guidance on this, as well as on the considerations that will apply if an EEA national’s ability to travel to the UK and/or to work in the UK has been affected by the COVID-19 pandemic.   

Frontier workers after 31 December 2020 

An EEA national who meets the criteria above will be able to continue to travel to and work in the UK until 30 June 2021 using their current original passport or national ID card. From 1 July 2021, in addition to their identity document, an EEA national must hold a (digital) frontier worker permit in order to enter the UK on that basis.  

The requirement to obtain a frontier worker permit by 1 July 2021 is a very short timeframe considering that the route has not been widely publicised and the guidance on the application process has not been made available ahead of its launch. Due to lack of publicity, some EEA nationals will not be aware of this route and that it may apply to them or be able to put arrangements in place to bring themselves within scope of the arrangements before the end of the transition period. 

Application process 

The application process https://www.gov.uk/frontier-worker-permit for a frontier worker permit launched on 10 December 2020. There is no deadline for applications, so it will be possible for a person who holds pre-settled status under the EU Settlement Scheme to obtain a frontier worker permit some years from now if they meet the eligibility requirements for it. This could be an option for those who are unable to meet the residence requirements for settled status in due course, but who continue to work in the UK.  

Frontier worker applications are free of charge and can be submitted in or outside the UK. An applicant will need to provide evidence of their identity and frontier worker status, i.e. relevant documentation regarding their employment or self-employment (e.g. a letter from a UK employer, payslips, proof of business in the UK etc.) and evidence of their returns to their home country. It may be tricky for EEA nationals to evidence the latter, considering that they will not have any stamps in their passports. Individuals may need to keep their flight booking confirmations and boarding passes to evidence travel to their home country.  

If the application is successful, a frontier worker will be given a permit valid for five years, or two years if they have applied on the basis of retained frontier worker status. One of the conditions is that the holder must continue at all times to fall within the definition of a frontier worker. Otherwise, their frontier worker permit may be revoked, and they may be refused admission or removed from the UK.  

The Home Office has confirmed that a frontier worker will be allowed to make an application to switch to other immigration categories while they are in the UK, provided they meet eligibility requirements of the category they wish to switch into.  

If an EEA national holds frontier worker status but wishes to travel to the UK for a purpose other than work (for example, a recreational visit) they will be admitted to the UK as a visitor under general immigration rules, and not as a frontier worker. This is something that is different from the rules that apply to other exempt categories, and it remains to be seen how the Home Office will manage this aspect operationally as most EEA nationals will simply be seeking entry to the UK via eGates rather than being asked any questions at the border about their intended activities in the UK.