The EU-UK Trade and Cooperation Agreement (TCA) and the implications on business immigration
At 11pm on 31 December 2020, the Brexit transition period officially came to an end. Amongst other things, this brought about a very abrupt end to the freedom of movement previously enjoyed by all EU citizens in the UK. With effect from the 1 January 2021, free movement was replaced by the new Points Based Immigration System (PBS), as set out under the Immigration Rules, which now applies to both EU and non-EU citizens.
The sections of the TCA relevant to immigration in the UK may go some way to extend the current provisions set out in the Immigration Rules, but they are certainly not ground breaking and are a far cry from the status quo we are all used to in terms of free movement. However, they do provide further clarity to UK businesses as we take the plunge into a new era of UK immigration law.
What is the TCA?
The TCA is an agreement between the EU and the UK, which was concluded on 24 December 2020. A very similar deal was also reached with Switzerland on 14 December 2020. Iceland, Liechtenstein and Norway (countries that are part of the EEA, but not the EU) are not covered by the TCA, but it is presumed that separate negotiations are ongoing with these countries.
The agreement sets out preferential arrangements in areas such as trade, services, intellectual property, social security and immigration into the UK, and also from the UK to EU Members States. For the purposes of this guidance note, we will consider the implications of the TCA on business immigration in the UK only.
The TCA contains a limited number of immigration-provisions, largely centred on temporary mobility rights, intended to be a sort of quid pro quo following the end to free movement. However, the provisions are vastly limited when compared to the previous system, merely extending certain existing visa categories and creating short term work visas for certain experienced workers and intra-company transferees.
So, what are the changes?
Generally speaking, short term business visitors from the EU will not require a work visa to enter the UK, provided that their intended stay is short (i.e. less than 6 months) and they will not undertake any work activities that are specifically prohibited under the Immigration Rules. For further information on what is deemed a permitted or prohibited activity, please see our recent article here.
Under the TCA, the following activities have been added to the permitted list under the Immigration Rules:
- Scientists and researchers may conduct independent research;
- A translator and/or interpreter may translate and/or interpret in the UK as an employee of an overseas enterprise; and
- Market researchers and analysists may conduct market research or analysis in the UK for an enterprise located outside the UK.
International Agreement Worker route
Arguably the most significant, or at least the most notable amendment brought about by the TCA, is the change of rules for the Tier 5 International Agreement Worker (IAW) route.
The IAW route is now applicable to the following categories of worker:
- Contractual services suppliers;
- Independent professionals supplying services;
- Employees of an overseas government or international organisation; and
- Private servants in diplomatic households.
The first two categories refer to individuals who are based abroad, but are coming to the UK for a short to medium term professional services assignment. These services are limited to specific sectors that range from auditing or accounting to legal advice or insurance, but whether someone from a given country can use this route will depend on whether there is a sector commitment in place between the UK and that country. The Home Office has set out in its guidance (see Annex IAW1) a list of the relevant international agreements, and whether the specific sector is included under that agreement. For example, an insurance consultant who is an EU citizen would qualify under this route, but a provider of auditing services would not.
Where this route is relevant, the sponsoring entity (i.e. the UK business receiving the services) must have a Tier 5 Sponsor Licence, and the relevant individual providing the services will need to apply for a visa, prior to entering the UK.
It is important to note that this is a short term route, which will permit entry into the UK for a period not exceeding 12 months. For long-term or permanent assignments, the Skilled Worker or Intra-Company Transfer routes should be utilised.
Ok, so what do UK businesses need to do?
In regards to UK immigration, the TCA does not impose any further restrictions or rules beyond what the Home Office have previously set out in the Immigration Rules. The above provisions are positive in that they broaden some of the existing immigration categories but, again, not in a particularly significant way.
We are now very much in the new era of immigration and there have been a lot of changes made that may take some time to get used to. The headline message is that freedom of movement has come to an end, which means the rules around employing EU citizens is very different. We have previously published a number of articles exploring the changes to the UK immigration system (see below).
- An introductory guide to Tier 2 Sponsor Licences
- Navigating the Tier 2 visa route
- Statement of Change to the Immigration Rules
- EU, EEA and Swiss Workers rights to live and work in the UK from January 2021
- British national (overseas) citizens obtaining a visa to come to the UK from 31 January 2021