Episode 5, Mobile Workforces: Business Visitors

Ruth:

Hello and welcome to the fifth episode in our mobile workforces mini-series. My name is Ruth Buchanan and I'm an employment law partner. And today I'm joined by Liz Parkin, a senior associate in our London office specialising in employment and business immigration. Our mini-series will explore the ever-changing immigration rules that underpin mobility issues, and provide insights into the latest issues impacting our clients. We'll be covering the life cycle of the employment relationship, from recruitment and onboarding issues, through to managing a mobile workforce and what happens when the relationship comes to an end. In this episode, our focus is on the rules that apply to business visitors. You're listening to Ashurst Legal Outlook.

Visiting the UK for business reasons is something that's become more of an issue following our exit from the EU. The freedom to travel without restriction was removed and this impacts not just on those looking to work in the UK but also those visiting for business reasons. We're going to take a look at how the rules work and some common misconceptions. So Liz, what do you think is the most common misunderstanding around how the visitor rules work?

Liz:

The visitor rules permit someone to enter the UK and stay for up to six months per visit. For a number of nationalities, including those coming from Europe, there's no need to apply for a visa in advance. And I think this often leads to individuals believing that they don't actually have to comply with any eligibility requirements or considerations when coming to the UK. They haven't had to apply for a visa, so they're thinking, well, there are no things that I need to consider. But in fact, these nationalities are subject to exactly the same rules as the individuals who have to apply for a visitor visa in advance.

Ruth:

So how prescriptive are the rules that apply to visitors?

Liz:

So a visitor can't actually undertake any work for a UK company, say for some very and limited and specific activities. They can't be employed in the UK and you can't even come to the UK to set up a business as a self-employed person. Fundamentally, the rules say that any activities that are undertaken cannot amount to undertaking employment in the UK or filling a substantive role. And one of the particular things is that, a visitor has to be in a position to evidence when they arrive here, that they will leave the UK at the end of their visit. What the reason for their visit is. That they're not receiving any payment from a UK source, safe where this is under one of the permitted payment provisions. That they're able to support themselves and any people coming with them during their trip.

Importantly that they're actually able to pay for their return or onward journey or have someone else who's able to fund that. And that they will not live in the UK for extended periods through frequent or successive visits or make the UK their main home. So you can't really go renting here, that kind of thing. And for those applying for a visa advance, quite a lot of this is tested then as part of the visa application process, albeit they might be asked that at the gate on arrival. But for the individuals coming without the need for a visa advance, they actually need to be prepared to answer these questions on enter into the UK. And although the rules allow you to come for the visit for up to six months in one single visit, the longer or more frequent someone comes to the UK, the more likely is that questions are going to start to be asked about actually what they're doing and are they actually really living here as opposed to visiting.

Ruth:

Thanks Liz. So what activities is someone then permitted to do under the business visitor route? Would you be allowed, for example, to come for a board meeting or to interview someone?

Liz:

So very helpfully, there is a list of specific permitted activities set out on the Home Office website and set out within the immigration rules. And they're broken down into different categories. And the ones that we more often than not are looking at are the general business ones. And that does allow someone to come for an interview, for meetings, for conferences, for seminars. You can negotiate and sign a deal for a contract. You can carry out a site visit for example. You can even come here to gather information for your employer overseas or be briefed on the requirement of a UK customer, provided you're not actually doing that customer work in the UK.

And one of the helpful ones for group companies is if you're employed by an overseas group entity, you could come to the UK to advise and consult, troubleshoot, provide training, sharing skills and knowledge for a particular internal project with a UK employee group, as long as they're in the same corporate group, provided you're not actually doing any work with the UK clients. So those are the kind of common themes. There are other specific rules for the permitted activities. One of the ones that we talked to some of our manufacturing and energy from waste clients about is relating to manufacturing supply of goods. So you can come to the UK for example, you can instal machinery, manufactured basically abroad by your German company and sold into the UK. That's one of the committed listed activities. So it's always really helpful if an individual actually checks the list of permitted activities, because it is quite broad. But they are very specific and there is really a huge amount of wiggle room outside of the ones that are listed.

Ruth:

What about coming to the UK and then working remotely, but for the overseas employer, whilst you're here, would that be permitted?

Liz:

So there's some detailed guidance that the Home Office has set out and they've clarified this point actually not that long ago and said that they're happy visitors are permitted to undertake activities that relate to their overseas employment. So they can work remotely, they can respond to emails, answer phone calls, that kind of thing. But the Home Office has a very specific way, they don't view working in the UK remotely for a long period as in line with the rules. So if an individual's indicating they're going to spend a large proportion of their time in the UK and then going to be doing remote work, then the Home Office might start to look at those other questions about, well actually, are they genuinely employed overseas? Making sure that they're not actually employed in the UK and that whatever they are doing here is still within those permitted activities.

Ruth:

And you mention that payment from the UK isn't permitted? Are there any exceptions for example, like claim for flights or hotel costs, things like that?

Liz:

So you're quite right. Visitors shouldn't receive any payment from a UK source save for... And again, there's a list of permitted payments in the rules, and that includes reasonable expenses to cover the cost of their travel and subsistence. And I do draw a line under the word, reasonable, there. Fees for directors, attending board level meetings, always very helpful. And you can also bill a UK client for your time in the UK. So if that's under a sort of services contract, provided that the majority of that contract work is then actually being carried out again overseas.

Ruth:

What can our clients do to cover off these issues? So for example, if someone was stopped on entry to the UK?

Liz:

So the thing that I recommend more often than not, is actually that the individual travels with a letter issued by their overseas employer. And that letter's going to make clear that they're employed overseas, that they aren't being paid in the UK by any UK entity. They're remaining employed, salaried outside of the UK. It might cover an explanation that maybe the UK entity has picked up their hotel costs, which is fine. What they're actually going to be doing here, when they're going to be here and how that fits with those permitted activities that we were discussing. The letter ideally needs to also have the contact details in there for someone in the overseas entity that's able to vouch for that person. Someone that's going to be able to pick up the phone if this person does get stopped at the gate, is able to say, they are doing only X, Y and Z.

And similarly actually, if you've got a UK hosting entity, they can equally issue an accompanying sister letter, which covers a similar information. Again, explaining that this is an overseas employee, it's not an employee of the UK entity, what they're going to be doing, that they're not paying and et cetera. And again, with that contact information of someone in the UK entity able to vouch for this arrangement. And the really key thing here is that, this is actually been thought about in advance and that the individual is clear about what they can and cannot do in the UK. Otherwise what happens is, they could be stopped at the border, they're unable to answer the questions, they end up being detained for a long period of time.

Or if they're not answering those questions in a satisfactory manner, they could be refused entry. And that really is a very tricky situation, because that individual could then have essentially a markdown on the immigration record that will be there when they next try to enter the UK. So it's going to make life more difficult for them and for the sake of a couple of letters, this can actually solve a lot of problems.

Ruth:

Thanks, Liz. That's really helpful. Yeah, I think it's clearer, so clearer from what you've been seeing that preparation and thought about it, making sure you've checked that permitted activities list licking and doing that list or the senior [inaudible], knowing exactly what the rules are. And that's going to be so important, particularly where the individuals travelling are very senior or key to the business.

Liz:

Great.

Thanks Ruth.

Ruth:

Thank you for listening. If any listeners want to get in contact with Liz or myself, then our details are on the Ashurst website, ashurst.com. We have some more exciting podcasts on the way, including looking at the new global mobility options and some tricky sponsorship issues. To ensure you don't miss any future episodes. Do subscribe now on Apple Podcast, Spotify, or your favourite podcast platform. While you're there. Please feel free to keep the conversation going and leave us a rating or a review. Until then, thanks again for listening.