Impact of Brexit on the employment of your employees: “where do we go from here?”
Part I: Immigration
Following a referendum, the United Kingdom officially announced on 29.03.2017 that it would leave the European Union. On 25.11.2018, a Withdrawal Agreement was concluded between the European Union and the United Kingdom in order to determine the modalities of the withdrawal from the European Union.
The Withdrawal Agreement provided for a transition period until 31.12.2020, during which the rights of EU citizens as well as UK citizens were guaranteed as if the UK was still a part of the European Union. In the meantime, negotiations started between the European Union and the United Kingdom in order to determine the legal relations after the withdrawal. It has become clear in the meantime however, that these negotiations are at a standstill and it seems that we should not expect an agreement before 01.01.2021.
Because you, as an employer, cannot wait until 1 January to map out a number of things, and because you have to prepare yourself for the impact Brexit might have on your company in terms of employment, we would like to inform you in two newsletters about the impact of Brexit: one newsletter regarding immigration and the other one regarding the applicable social security schemes.
This newsletter concerns immigration and reflects the state of affairs on 11.12.2020.
1. General rule before Brexit and negotiations
According to the principle of free movement of persons in European Union legislation, EU citizens are entitled to live and work in any other member state. Belgian nationals could work in the UK without any work permit or visa and vice versa. This principle remains applicable during the transition period, so until 31.12.2020.
Within the framework of the negotiations, the European Union put the principle of reciprocity first: if the United Kingdom would offer a simplified arrangement for a (short) stay in the UK, the EU would offer an equivalent system.
However, there is currently no agreement yet concerning the conditions of employment and residence between the European Union and the United Kingdom as from 01.01.2021. For the time being, we must follow the general principles. This means, among other things, that Belgians, as third country nationals would require a visa to reside in the UK, including an authorisation to work in the UK. The same would apply to UK nationals working and residing in Belgium.
Employees who were already legitimately working in either country before 31.12.2020, and who have a valid residence there, will maintain this right as long as they formalize their status with the respective governments in due time.
2. Work and residence of British employees in Belgium as from 01.01.2021
As from 01.01.2021, UK nationals, like other third country nationals, will as a rule require a work and residence permit in order to work and reside in Belgium. In order to be eligible for a work permit, a number of conditions has to be complied with.
UK nationals who travel to Belgium for a short period (maximum 90 days in any rolling period of 180 days) will not require a visa. For specific short-term assignments on the Belgian territory, there will also be an exemption to hold a work permit depending on the nature and the length of the activities.
3. Work and residence of Belgian employees in the United Kingdom as from 01.01.2021
In order to work in the UK (either a few days a week on a regular basis, or for a consecutive period), a work and residence permit will have to be applied for as from 01.01.2021, for a Belgian employee.
Two possibilities exist to that end in the UK:
- The Skilled Worker-procedure (the new points-based system), which requires that the employer has an activity and presence in the UK.
- The Global Talent Visa, for highly skilled employees with a high level of expertise. This category of employees requires an endorsement from an independent pre-approved endorsing body. Few employees attain the very high expertise demands in practice.
As in Belgium, it will be possible to travel without a visa to the UK for a short stay (maximum 90 days in any rolling period of 180 days). Business travel will not require a specific visa either. However, the activities that can be performed during business travel are limited. Additional exceptions exist for specific categories of employees, such as scientists, athletes, researchers, academics, etc.
For more information regarding immigration requirements in the UK, we can get you in touch with our partner in the United Kingdom: JMR HR & Legal.
4. What steps can British employees in Belgium still take to safeguard their right to work and residence?
British employees who live (and work) in Belgium right now, may introduce an application in order to maintain their right of residence in Belgium with the municipal administration of their place of residence until 31.12.2020.
Based on their valid residence in Belgium before or until 31.12.2020, they will not need a work permit to work here as from 01.01.2021.
5. What steps can Belgian employees in the UK still take to safeguard their right to work and residence?
Belgian employees who are working in the UK on 31.12.2020, may register under certain conditions for a pre-settled status, which will allow them to live and work in the UK for 5 years. If employees have lived at least 180 days in the UK in any rolling period of 12 months in a period of 5 years, they will be eligible for a settled status, so they can stay in the UK for a long time.
For more information, we can get you in touch with our partner in the United Kingdom: JMR HR & Legal.
POINTS OF ATTENTION
! Map whether you employ British employees in Belgium or Belgian employees in the UK.
! Check if your employees in the UK or Belgium have taken the necessary steps to safeguard their right of residence.
! If you send an employee from Belgium to the UK or from the UK to Belgium in the future, you will need to check which visa and/or work permit formalities have to be complied with.
Keep in mind that these steps may cost extra time and money.