Evidence of substantial new barriers to business travel from the U.K. to the European Union is mounting following the completion of Brexit on Dec. 31. One travel management company revealed to BTN that the British employee of a customer was denied boarding on a flight from Amsterdam to Budapest for not having a work permit—a document not required when the U.K. was part of the EU.
The Trade and Cooperation Agreement permit the following activities for short-term business visitors from the U.K. to the EU and vice versa without a work permit but will likely need further clarification.
Note: The phrase “a legal person of the party of which the short-term business visitor is a natural person” may be loosely considered to mean “a company for which the short-term business visitor is performing work.”
Meetings and consultations: natural persons attending meetings or conferences, or engaged in consultations with business associates
Research and design: technical, scientific and statistical researchers conducting independent research or research for a legal person of the party of which the short-term business visitor is a natural person
Marketing research: market researchers and analysts conducting research or analysis for a legal person of the party of which the short-term business visitor is a natural person
Training seminars: personnel of an enterprise who enter the territory being visited by the short-term business visitor to receive training in techniques and work practices which are utilized by companies or organizations in the territory being visited by the short-term business visitor, provided that the training received is confined to observation, familiarization and classroom instruction only
Trade fairs and exhibitions: personnel attending a trade fair for the purpose of promoting their company or its products or services
Sales: representatives of a supplier of services or goods taking orders or negotiating the sale of services or goods or entering into agreements to sell services or goods for that supplier, but not delivering goods or supplying services themselves; short-term business visitors shall not engage in making direct sales to the general public
Purchasing: buyers purchasing goods or services for an enterprise, or management and supervisory personnel, engaging in a commercial transaction carried out in the territory of the party of which the short-term business visitor is a natural person
After-sales or after-lease service: installers, repair and maintenance personnel and supervisors, possessing specialized knowledge essential to a seller’s contractual obligation, supplying services or training workers to supply services pursuant to a warranty or other service contract incidental to the sale or lease of commercial or industrial equipment or machinery, including computer software, purchased or leased from a legal person of the party of which the short-term business visitor is a natural person throughout the duration of the warranty or service contract
Commercial transactions: management and supervisory personnel and financial services personnel (including insurers, bankers and investment brokers) engaging in a commercial transaction for a legal person of the party of which the short-term business visitor is a natural person
Tourism personnel: tour and travel agents, tour guides or tour operators attending or participating in conventions or accompanying a tour that has begun in the territory of the party of which the short-term business visitor is a natural person
Translation and interpretation: translators or interpreters supplying services as employees of a legal person of the party of which the short-term business visitor is a natural person
Source: Trade and Cooperation Agreement Between the European Union and the European Atomic Energy Community, of the One Part, and the United Kingdom of Great Britain and Northern Ireland, of the Other Part
Meanwhile, a London-based travel manager at a global consulting firm told BTN his in-house lawyers have advised him all consulting assignments by the firm’s U.K. passport holders to the EU and vice versa will require work visas in future. And an immigration specialist has warned that companies should assume any work activity not explicitly included on the list of permitted activities for short-term business visitors published on pages 770-771 of the Dec. 24 trade and cooperation agreement (TCA) between the EU and U.K. will require additional paperwork [see list in sidebar].
The agreement includes additional unilateral restrictions (pages 768-769) on U.K. business visitors imposed by individual EU states. But the immigration expert and a lawyer both confirmed to BTN that there are also likely to be complex interpretations of the main list on a country-by-country basis, with little clarification so far of what will and won’t be allowed in practice.
“The challenge that we have seen is inconsistency in terms of rules and regulations and paperwork required,” said Donna Joines, regional operations manager for the TMC Corporate Traveller U.K. “This is becoming increasingly frustrating for our clients in the energy sector and food and beverage industries, whose business travel is essential right now. Our consultants check four different information sources to advise clients of the latest regulations, but an airline supplier may only be using one source. The rules can differ depending on which source is being used.”
Joines said that last week a client sent travelers on successive days from the U.K. to Budapest via Amsterdam. “One traveler on Monday had no issues at immigration and made the connecting flight,” she said. “Then on Tuesday, the other traveler was stopped in Amsterdam and told he wasn’t allowed to board the flight to Budapest because he needed a work permit to enter Hungary.”
The TCA states that, for entry to Hungary, Cyprus and Denmark, a “work permit, including economic needs test, [is] required in case the short-term business visitor supplies a service.”
Joines said: “The problem was exacerbated because in normal times, if there is an issue with a traveler missing a connecting flight, there would be an alternative flight later the same day. But at the moment flight schedules are vastly reduced, meaning the only alternative is for the traveler to return to the U.K.”
Meanwhile, the London-based consultancy travel manager, speaking on condition of anonymity, told BTN he is urgently reviewing his travel program in light of the new post-Brexit rules. “The lawyers are telling me that we need to go and get visas,” he said. “London is a net exporter of consultants to the rest of the world, especially the EU. All of a sudden, those consultants will need a visa to work in France or Germany and will need a different visa for each of them. We’re not clear what the process is to get a visa.”
Most overseas consulting work is on hold anyway owing to travel restrictions caused by the coronavirus. But, once travel is allowed again, the travel manager said his company will look in many cases to reassign U.K. passport holders to projects within the U.K. Projects in the EU are likely to be assigned to those consultants in the London office with EU passports.
“This will add friction points to our operation,” the travel manager said. “Any service sector company will now have to think twice before sending employees from the U.K. to the EU or in the other direction.” The travel manager added that the challenge will be especially formidable for smaller consultancies and other service companies lacking significant internal resources.
The same travel manager said the new constraints on EU-U.K. travel is likely to play havoc with corporate airline agreements. “I don’t know where my guys are going to fly next and I have no idea what my route networks are going to look like. I would prefer to do network-wide deals rather than route deals so that no matter where I go I’m covered. Almost every airline has asked me how Brexit will affect our travel patterns. Covid is short-term uncertainty but Brexit is a long-term uncertainty,” the travel manager said.
Raquel Gómez Salas, a global immigration counsel for London-based visa and immigration service provider Newland Chase, warned business travel from the U.K. to the EU will involve substantial paperwork, and equally substantial confusion, in many cases. “Any short-term activity not included in the TCA will require work authorization unless it is work-permit-exempt by the national immigration rules of the particular EU country where the activities take place,” she said.
“But there is still uncertainty around how each EU country will interpret the list of permitted activities to short-term business visitors included in the TCA. We would still need to understand the views of each specific EU country and there is little or no guidance yet in this regard.”
Very similar challenges will complicate the planning of business trips to the U.K. from the European Economic Area—the EU plus Iceland, Norway and Liechtenstein—according to Robert Houchill, an associate with law firm Kingsley Napley, also based in London.
“Often a visitor’s planned activities do not fall neatly within the terms of the ‘permitted activities’ and it can be difficult to determine what is and is not allowed,” said Houchill.
“Perhaps the more common permitted activities are attending meetings or conferences, negotiating and signing deals and contracts, carrying out site visits and inspections, and gathering information for employment overseas. The rules for intra-corporate visitors (overseas employees of a U.K.-based company) are a bit more generous and allow for some training, advising and consulting and sharing skills and knowledge for an internal project, but provided the visitor is not dealing directly with clients.
“When engaging with EEA nationals in the U.K., companies now need to use the same thinking as with U.S., Chinese or Indian nationals, namely what type of activities will the individual be doing and is a work visa required?” Houchill said.