On 10 December 2020, the UK Government launched the new “Frontier Worker” permit.

Frontier workers are EU nationals who work in the UK but live elsewhere. Their rights are protected by the Withdrawal Agreement (and equivalent provisions in other citizen’s rights agreements).

The Frontier Worker Permit is a new permit that allows eligible Frontier Workers to apply for proof of their status. The application is free. Once granted, applicants within the UK will be issued a digital permit. Those outside of the UK will receive a physical document. The permit will usually last for five years (although a two year permit can be granted in some circumstances). At the end of their permit, individuals will need to renew their status, and will have to meet the eligibility criteria that apply at the time.

One granted, the Frontier Worker Permit provides proof of an individual’s right to work, rent and access benefits and services in the UK. They are able to access healthcare, benefits and services according to the same rules that applied before Brexit. Under this permit, Frontier Workers can change jobs or move from being employed to self-employed in the UK without needing to tell the Home Office.

Their rights continue for so long as the individual continues to be a Frontier Worker; if they cease to be a Frontier Worker, they must inform the Home Office and their permit will be revoked.

Irish citizens do not need to apply for a Frontier Worker permit but can choose to do so. Further, British citizens (including does with dual citizenship) cannot apply.

Who is eligible for Frontier Worker Status?

An individual may be eligible if all of the following apply:

1. They must be a national of the EU, Switzerland, Norway, Iceland or Liechtenstein
2. They must live outside of the UK - Generally, the individual must live ‘primarily’ outside of the UK. This will usually mean they must have spent less than 180 days in total in the UK from 1 January 2020 to 31 December 2020 (and thereafter over the course of any 12-month period). (Although, this requirement may be met in other ways.)
3. They must have worked in the UK by 31 December 2020 – In other words, they must have set up their frontier working pattern by no later than the end of this year.  They can be employed or self-employed, but in both cases the work carried out must be “genuine and effective” and not marginal and ancillary to their lifestyle as a whole whilst in the UK. There are specific tests that must be met and detailed guidance as to what sort of evidence will satisfy the Home Office on these points.
4. They must have continued working in the UK at least once every 12 months since they started working here – this will be particularly important for renewals and maintaining Frontier Worker status. Specific exemptions to this rule may apply, depending on the circumstances.
5. They must meet the general suitability criteria - This means applications can be refused, for example, if the individual is a threat to public security or subject to a deportation order or if preventing entry would be conducive to the public good.

Some examples: Who might this be used by?

Example 1

Paul is a French national who has worked for a bank in Edinburgh. He has worked there for the last 3 years. As part of his work, Paul travels to Edinburgh for 3 days in every month to come to work. 

Paul will probably be eligible for a Frontier Worker Permit, so long as the work he was carrying out meets the test of being “genuine and effective” (and there are no other reasons for refusal).

Example 2

Helen is a Spanish national who lives in Spain but comes to the UK for 6 weeks at a time to work on an oil rig off the shore of Scotland, which is positioned within UK territorial waters. Helen has been working in this role for the past 15 months.

Helen will probably be eligible for a Frontier Worker Permit, so long as the work she is carrying out meets the test of being “genuine and effective” (and there are no other reasons for refusal). But, if Helen undertook this role during the entirety of 2020, she will have spent more than 180 days in the UK in that year.  She may still be able to apply for a Frontier Worker Permit if one of the exceptions applies. For example, if she has travelled back to her country of residence at least once in 6 months or twice in a 12-month period.

She is made redundant in January 2021 and applies for a Frontier Worker Permit in May 2021.  Between January and May she is looking for work in the UK; she registers at a UK based recruitment agency and has examples of many job applications for frontier worker type roles.

At the time she applies for a Frontier Worker Permit she is not actively working in the UK. However, she may be able to apply as a “retained worker” under one of the specific exemptions. She worked for more than 12 months before becoming unemployed and has provided proof of seeking employment in the UK that would meet the Frontier Worker requirements.

Example 3

Robert is an engineer who lives in Italy. He applies for a Frontier Worker Permit in February 2021, He has come to the UK to look for work five times in 2020, each time attending an interview for a role.  However, he was unsuccessful and did not secure any of the roles.

It is unlikely that Robert would be eligible for a Frontier Worker Permit because he has not carried out “genuine and effective” work in the UK.

Example 4

Joseph is a Spanish national who is self-employed builder in the UK specialising in loft conversions. Between the spring and the autumn each year, he spends 5 days per week in the UK completing building projects, returning home to Spain at the weekends. He rents a yard and lock-up in the UK from which he operates.

Joseph will probably be eligible as a Frontier Worker. He lives outside of the UK but comes to work here. The work he does is regular and stable. He returns to the UK regularly to complete the building projects; he spends several days at a time working in the UK and he has business premises in the UK.

Example 5

Paul is a French national.  He is a self-employed construction worker in France. Sometimes he travels to England to work on jobs, but this is irregular and depends on client demand – sometimes once a month, sometimes less.

It is unlikely that Paul will be eligible for a Frontier Worker Permit on the basis that his work in the UK is temporary and irregular.  It is also unstable and dependent on client demand. He does not have any established base in the UK.

Why is it important?

After 1 January 2021, EU nationals are subject to the same visa requirements as non-EU nationals. However, the UK Government has told employers they can continue to rely on an EU passport/ID card during the six months’ grace period until 30 June 2021.

This means that until 30 June 2021, Frontier Workers can continue to use their passport or national identity card to enter the UK and to provide evidence of their right to work.  Employers are not permitted to insist on seeing a Frontier Worker permit during this time.

The problem is that between 1 January 2021 and 30 June 2021, employers hiring an EU national will not know if they are eligible for a Frontier Worker Permit or not.  If they are eligible, they will have the legal right to work; if they aren’t, they won’t.

Employers will want to balance the risk of discrimination with ensuring individuals do, in fact, have the right to work in the UK as Frontier Workers.

If an employer wrongly allows an individual to work in the UK assuming they have Frontier Worker status when they do not, they will be working illegally.

Employing illegal workers carries draconian consequences. The employer could face a civil penalty fine (of up to £20,000 per illegal worker) or even criminal sanctions (an unlimited fine and up to 5 years in prison).  They can be publicly named and shamed with the associated negative publicity/an adverse impact on their ability to win work/meet ethical supply chain accreditation.

Finally, any illegal working will almost certainly result in the revocation of your sponsor licence. This means that you will be unable to recruit most non-UK national workers and all existing sponsored migrants having their visas curtailed to 60 days.

Employers will need to take advice on how best to comply and balance these legal requirements as a matter of urgency.

From 1 July 2021, the Frontier Worker Permit becomes mandatory and anyone seeking to enter or work in the UK as a Frontier Workers will require a permit to do so. If they do not have this permit, they will not be allowed to enter and will not have a legal right to work in the UK.

Our thoughts

This is an important alternative option for EU nationals, particularly those who don’t meet the criteria under the EU settlement Scheme for Settled/Pre-Settled Status for some reason.

It is also likely to be a useful route for:

• the self-employed, who have very limited visa routes available to them post-Brexit;
• the lower skilled/lower paid who are ineligible for sponsorship under a Skilled Worker visa; or
• international organisations across all sectors whose employees regularly work between Europe and the UK.

We’ve seen interest from clients in this permit post-Brexit across a whole range of sectors from construction to engineering, manufacturing to the care sector and from financial services to recruitment businesses.

However, the fact that the frontier working pattern must have been established before 31 December 2020 means it is not a viable option for businesses in the long term.

If you would like detailed advice on this issue or how the Frontier Worker Permit might apply to your business model or personal circumstances, please contact any member of the Business Immigration Team.