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Bringing workers into the UK - European Union law and Vander Elst

Written by
Mark Symes
Date of Publication:
12 February 2011

As entry for migrants becomes increasingly difficult under the Points Based System, it is necessary to consider what other avenues might be available for firms to bring staff into the United Kingdom. For those firms incorporated elsewhere in the European Union there may be an avenue under the Vander Elst principle. In Raymond Vander Elst v Office des Migrations Internationales. (Freedom to provide services) [1994] EUECJ C-43/93 (9 August 1994) the national court asked whether the European Treaty was to be interpreted as precluding a Member State from requiring undertakings which are established elsewhere in Europe and enter its territory to provide services, and which "lawfully and habitually" employed non-EU nationals, to obtain work permits for non-European staff. The ECJ found that Member States could not do so, as this would be contrary to the European Union law requirement to abolish anything which might prohibit, impede or render less advantageous the activities of a provider of services lawfully established in another Member State. However, the foreign staff must belawfully resident in the country in which the undertaking was established: this does not permit workers who have no lawful presence or right to work either in the country of establishment itself, or in the host country, to avoid immigration control: see Low & Ors, R (on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 4.