Among the changes ushered in at the start of 2021 is the introduction of a new Frontier Worker Permit, designed for people who before Brexit benefited from free movement within the EU. In this post, Latitude Law's Victoria Waller outlines everything you need to know about the new route.
What is the Frontier Worker Permit?
On 1 January 2021, a new permit became available for frontier workers. Frontier workers are classified as cross-border workers; mainly EU citizens who work in the UK but who are not primarily resident here. These individuals previously benefited from the free movement provisions within the EU, but these regulations are no longer applicable after the Brexit transition period ended on 31 December 2020.
The frontier worker permit will therefore attempt to bridge the gap that Brexit will create by allowing for the continuation of a cross-border mobile workforce.
As with all applications that are linked to Brexit, there are some key dates to consider for anyone intending to apply for a frontier worker permit.
As defined in The Citizen's Rights (Frontier Workers) (EU Exit) Regulations 2020 a frontier worker is someone who is able to meet the criteria before 31 December 2020 and who will continue to meet the criteria when they apply for the permit. It's clear therefore that an applicant will need to have worked in the UK by 31 December 2020 to be eligible. Whilst a permit will not need to be shown to enter the UK until 1 July 2021 (EU frontier workers employed in the UK by 31 December 2020 will have a six-month grace period between January 2021 and June 2021 to apply for a Frontier Worker Permit), anyone who hasn't worked in the UK before 31 December 2020 won't be able to apply.
The new regulations set out the eligibility requirements are as follows:
• They are an EU, EEA or Swiss national
• They are not primarily resident in the UK
• And they are one of the following:
• A worker in the UK
• Self-employed in the UK
• A person who has retained the status of being self-employed/a worker under EU law
In assessing the requirements in more detail, it's clear that there are some generous provisions. For instance, the very broad definition of 'not normally resident' allows for increased freedom to pursue economic activity without the interruption of the need for the worker to return to their country of origin frequently.
The regulations state that frontier workers need to have returned to their country of residence at least once in the last six months or twice in the last 12 months before the relevant day unless there are exceptional reasons for not having done so.
The guidance further emphasises that Irish nationals do not need to apply for a frontier worker permit as they have the right to enter, live and work in the UK under Common Travel Area arrangements.
Additionally, there are COVID-19 concessions within the guidance to steer caseworkers considering applicants who have been impacted by the virus. For instance, if an applicant was unable to carry out economic activity in the UK as a result of COVID-19, they may still be able to meet the employment requirements if relevant proof is provided.
How to Apply
In a similar manner to EUSS applications, frontier worker applicants will be able to use a smartphone app to apply. Applicants applying via the app will be issued a digital version of the permit. For any applicants not using the app, who instead complete the online form, a physical version of the permit will be provided. If approved, the frontier worker permit will be valid for five years for workers, or two years for the self-employed.
Some of the key benefits of frontier worker permits are as follows:
• Allows for transition from free movement to continued access to the UK for workers who are not resident
• The application is free and the Immigration Health Surcharge IHS is not applicable
• Workers are able to retain their frontier worker status if their work is stopped (for instance due to illness, accident, childbirth)
• The permit can be renewed indefinitely
• Frontier worker permit holders are able to rent and access benefits and services including NHS healthcare in the UK if eligibility requirements are met
Potentially, the most crucial caveat to the permit is that it does not lead to settlement. For applicants whose circumstances and aims involve settling in the UK permanently, alternative applications under the EUSS where possible would be preferable. For instance, pre-settled status will provide an EU worker with a five-year permit to continue to work in the UK.
Note also that family members are not able to apply as dependents of a frontier worker.
It is crucial therefore to recognise that the permit does not confer leave to enter or remain under the Immigration Act 1971; the holder will be exempt from immigration control. The frontier worker permit therefore is a right of admission to the UK and as such will not lead to indefinite leave to remain.
For workers used to the freedom of movement under EU law, it is likely that the frontier worker permit will be a welcome option to continue working in the UK.