Overseas employees visiting the UK? Businesses Beware!

Prior to Brexit and the removal of the freedom of movement, it was permissible for EEA nationals employed by an overseas branch to come to the UK to work and carry out business-related activities without restriction. That’s no longer the case…

Since Brexit, the UK’s business visitor rules, which set out very tightly defined parameters of permitted activities, apply to both EEA (and Swiss) and non-EEA nationals.

If the overseas employee is an EEA national, it’s not necessary for them to obtain a visitor visa prior to coming to the UK; they can gain entry as a business visitor upon arrival to the UK and they will be permitted to remain in the UK for permitted business-related reasons for up to six months. The same applies to nationals of some other countries, including the US and Canada.

Nationals of all other countries will need to apply for a business visitor visa from the British Consulate in their home country before they travel to the UK.

Regardless of the origins of the individual it’s vital that they intend to comply, and comply in practice, with the business visitor rules whilst in the UK. Failure to do so could lead to the individual being turned away at the UK border or, if they are already in the UK, their visa could be curtailed, and they could be banned from visiting the UK in the future. There could also be serious consequences for your business if it has encouraged or facilitated a breach of the rules.

Permitted activities of a business visitor

• Attending meetings, conferences, seminars or interviews
• Giving a one-off or short series of talks as long as they are not organised as commercial events and will not make a profit for the organiser
• Negotiating and signing deals and contracts
• Attending trade fairs as long as it’s for promotional work only and provided the employee is not directly selling
• Carrying out site visits and inspections
• Gathering information for their employment overseas
• Being briefed on the requirements of a UK-based customer as long as any work for the customer is done outside of the UK
• Advising, consulting, troubleshooting or providing training
• Sharing skills and knowledge on a specific internal project with UK employees of the same corporate group (provided that no work is carried out directly with clients)
• Carrying out regulatory or financial audits as an internal auditor at a UK branch of the same group of companies as your employer overseas
• Receiving training from a UK-based company organisation in work practices and techniques which are required for the visitor’s overseas employment and not available in their home country / country of residence.

Importantly, business visitors must ensure that their engagement in permitted activities doesn’t amount to any activity that isn’t permitted (see below), such as taking employment or filling a role within a UK business.

Activities which are not permitted

Business visitors are not permitted to work whilst in the UK. This includes:

• carrying out their day-to-day role for their overseas employer whilst in the UK (whether remotely or in the office of a UK organisation). It’s important to note that only individuals with a work visa are allowed to work remotely in the UK, even if it’s for a very short period (including if they’re on holiday or visiting family / friends in the UK)
• taking on employment with / doing work for a UK-based organisation
• providing short-term cover for a role in a UK based organisation
• doing a work placement or internship
• directly selling to the public
• providing goods and services

Importantly, business visitors are also not permitted to receive payment from any UK source; it must remain the case that they are paid and employed outside of the UK.

Torque Top Tips

• If an overseas national is going to visit the UK on business, both you and the individual should be clear on the tasks that they will undertake whilst in the UK and ensure that such tasks would not be in breach of the visitor rules. You should also make sure that the individual knows and understands what they are /are not permitted to do whilst in the UK.

Doing all this will help the individual be prepared for any probing questions at the border; confused and vague answers will lead to difficulties and, often, a refusal to enter the UK.

• Provide the overseas national with a letter from your business confirming the reason for the visit, that it is permitted by the business visitor rules, and that the individual will not be receiving payment from a UK entity.
• Ensure that the overseas national has booked a return flight which is within six months of arrival; they may be asked for proof of a return journey on entry to the UK.
• Carefully consider the duration and frequency of business visits; the longer the planned visit, the more likely the individual will receive probing questions at the border as to whether it’s genuinely a business visit within the visitor rules. Further, frequent visits to the UK are likely to lead to questions about whether, in reality, the individual is coming to the UK to work.

It may be the case that for long and / or frequent visits to the UK for business-related reasons a business visitor visa is unsuitable. If that’s the case, you may consider other options including sponsoring the individual to work in the UK via the points-based system.

If you have any questions about business visitors or business immigration more generally, including if you would like advice about how to apply to become a licensed sponsor, please contact Emma Cousins, Senior Associate at emma.cousins@torquelaw.co.uk or 01904 437 686.