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When considering sending an employee to a EU member state, an employer should first determine the nationality of the employee and purpose and length of the assignment, as this will have immigration implications.
EEA nationals
The United Kingdom is part of the European Union (EU), which in turn is part of the European Economic Area (EEA). The following countries belong to the EEA: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Leichtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
Although Switzerland is not part of the EEA, it reached an agreement with the EU regarding free movement of persons whereby EU workers and Swiss nationals are now to be treated equally with regard to entry and residence provisions and access to the labour market in the following countries: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, and the United Kingdom. As the agreement is being gradually implemented in Switzerland, EU nationals are still required, in most cases, to obtain a work permit to workin Switzerland.
In principle there are no special requirements for EEA citizens aiming to travel to or to reside and work in another member state. This is based on the free movement of workers, one of the fundamental freedoms guaranteed by Community law, which permits citizens of an EEA country to work in another EEA country under the same conditions as the respective member state's citizens. This is not, however, entirely the case, since most EEA countries still require foreign EEA nationals to register with their local authorities if they intend to remain for more than 90 days. There are also restrictions applying to citizens of some of the new member states (the Czech Republic, Estonia, Hungary, Lithuania, Poland, Slovakia and Slovenia) who wish to work in another member state. The citizens of these countries are subject to a transitional period of up to seven years which started in May 2004. As a result they do not, at this point, enjoy the right of free movement within the EEA labour market and are often required to register to take employment.
Non-EEA nationals
Although EEA nationals are entitled to move to other EEA member states, non-EEA nationals usually remain subject to the national immigration rules and controls of each EEA member state. Following bilateral agreements, some nationalities are able to travel to EEA countries visa-free for specific reasons and various periods of time. Additionally, following the Schengen Agreement, there is now a short-term visit visa, called the Schengen visa, which covers 15 members of the EEA (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain and Sweden). This is a visa with no territorial restrictions, which allows its holder to stay up to 90 days per six-month period. A Schengen visa granted to a third-country (non-EEA) national by one implementing country will entitle its holder to enter other Schengen countries as well without border checks.
Applicants must apply for a Schengen visa at the embassy of a Schengen state in their main destination. If they intend to visit several member states, main destination is to be interpreted as the country in which they are planning to spend the most time or the country that they are planning to enter first.
It should be noted that the list of nationalities which require a Schengen visa might vary from one Schengen member state to another. For instance Australian nationals can travel to France visa-free, but need to obtain a Schengen visa to visit Portugal.
In some cases the Schengen Agreement also allows a third-country national with a residence permit valid in one implementing country to travel on a valid passport, without requiring a visa, for up to 90 days per six-month period to other implementing countries. For instance an Indian national residing in France with a 'carte de séjour' will be able to travel to other Schengen states without first having to apply for a visa. As the UK is not part of the Schengen territory, this will not apply to residing third-country nationals.
Purpose of the trip
If the employee is a non-EEA national and the purpose of the trip is work, a work permit will generally be required regardless of the length of the assignment. The procedure involved in obtaining a work permit is a matter of national law and as a result will vary from one country to the other. In most cases, it is a costly, lengthy and convoluted process. If the purpose of the trip is business, however, the immigration requirements are much simpler to comply with.
Determining whether an employee is 'working' is often a difficult question of semantics, especially since each member state tends to have its own definition of what 'work' is. There is a common misconception that, in terms of immigration, work which is not remunerated does not constitute work per se. Whether the employee will receive consideration or not is, in most cases, irrelevant, as it is the type of activities carried out which determines whether a work permit is required.
Most countries will regard certain types of activities as conducting business rather than working. For instance, as a visitor in the UK, an employee can:
- go to meetings and trade fairs, buy goods, and negotiate and complete contracts with UK businesses;
- go to conferences and seminars as a delegate;
- find out about, check the details of or examine goods; and
- get training as long as it is classroom-based instruction or limited to observation only.
In limited circumstances, an employee can also enter the UK as a visitor if they are:
- delivering goods from abroad;
- a representative of a foreign company coming to service, repair or install their products;
- an adviser, consultant, trainer or other kind of specialist who is employed abroad either directly or under contract by the same company or group of companies;
- a guest speaker or expert speaker at a conference or seminar, or running a conference or seminar for no more than five days; or
- a sportsperson or entertainer for trials, auditions or personal appearances that do not involve performances.
To qualify as a business visitor, under no circumstances is the employee to:
- take paid or unpaid work;
- produce goods or provide services in the UK; or
- sell goods and services to members of the public.
In France, however, a visitor is typically limited to attending business meetings, discussions, negotiations, seminars or fact-finding meetings. A representative of a company entering the country to service, repair or install products will in most cases be expected to obtain a work authorisation. The same applies in Germany. Although attending a conference, seminar or business meeting will not constitute work, an employee transferred to a German branch for a short period to carry out installation or repair would technically be required to obtain a work permit.
In the Netherlands, an employee can visit on business to attend meetings, close deals, evaluate projects, etc, providing the trip does not exceed an uninterrupted period of four weeks in a quarter. There is an exception for IT personnel, who are allowed to stay for an uninterrupted period of three months to install or adjust software belonging to an employer based outside the Netherlands.
Depending on the country of destination, attention should be paid as to whether the activities to be carried out constitute work or business in the particular country since this will determine whether the employee needs prior authorisation.
If an employee's activity is regarded as conducting business, a work permit will not be required and in most cases a short-term business visa will suffice. These can usually be obtained fairly quickly. As explained previously, some nationalities are even allowed to travel on business to EU countries visa-free for specific periods of time.
Van der Elst visas
Even when employees' activities do not come under the umbrella of the business visit category, they might still be able to work without first obtaining a work permit or authorisation by obtaining a Van der Elst visa.
The Van der Elst visa constitutes a legitimate means of moving foreign nationals within the European member states to carry out 'work'. As a matter of community law, companies established in one EEA member state are entitled to provide services in another. As a result, EU companies exercising their right to provide services under the Treaty can post their employees, regardless of their nationalities, on a temporary basis in another member state. Employees who are transferred to another member state to provide a service on behalf of a company are usually referred to as 'posted workers'.
The European Court of Justice (ECJ) judgment in the Van der Elst case indicates that to qualify, the employee must have been lawfully and 'habitually employed' by the company prior to being posted. There are no exact definitions of 'habitual employment', but many have commented that the requirement will be complied with providing the posted worker has been previously employed by the company. It appears that this will also apply if the posted worker was employed by a branch of the company in a non-EU member state, as long as the company providing the service is established in a member state. The case does not make it clear how long the employee must have worked for the employer to be regarded as 'habitually employed'. As the ECJ's judgment in Van der Elst clearly limits member states' abilities to restrict the number of posted workers pursuing activities in their territory within the framework of the provision of services, they have been reluctant and slow to implement it into their national law. This has created a lot of confusion as it seems that the principle has yet to be fully and homogeneously recognised across the EU member states. Since the judgment was handed down in 1994, the European Commission has had to refer several member states to the ECJ for imposing requirements concerning entry, residence and employment that affected and undermined the freedom to provide or receive services, most recently Belgium and Germany in 2002. Both countries had conditions in place regulating the posting of staff which were seen as contrary to the rules of the EC Treaty with regard to the free movement of services (Article 49). These conditions made it very difficult for companies established in one member state to send non-EEA national staff members to another member state to provide services on a temporary basis. This affected the companies' ability to offer services in other member states.
Despite the intervention of the Commission over the years and the changes made by the different member states, the Van der Elst principle is still being interpreted reservedly.
In the UK for example, the posted worker will not qualify unless they have been employed for at least 12 months in a member state in which their employer is established. The Diplomatic Service Procedure states that under the Van der Elst principle, a non-EEA national working for an EEA employer in a member state of the EEA is allowed to provide services in the UK without the need to obtain a work permit, providing the employee:
- is lawfully resident in the EEA member state in which their employer is established;
- is lawfully and habitually employed by their employer (for at least 12 months) in a member state of the EEA;
- intends to provide a service in the UK on a temporary basis; and
- does not intend to take up other employment in the UK and intends to leave the UK at the end of the period.
Although the posted worker who qualifies will not be required to obtain a work permit, they will still need to apply for a visa. This visa is however sometimes more difficult and time-consuming to obtain than a standard local work permit under UK law.
Although the Netherlands recognised the Van der Elst principle, non-EEA workers are still required to apply for a work permit before they can apply for a Van der Elst visa. The authorities will assess whether a work permit is required and if not, advise the applicant to apply for a Van der Elst visa. The procedure involved might be much faster than the procedure for a normal work permit, but it still constitutes a hindrance. In Ireland, although a work permit will not be required, the process to obtain the Van der Elst visa can take up to three months.
As a general rule, when and if the Van der Elst principle does not apply, an employer wishing to send its non-EEA employee on assignment to another member state will need to apply for a work permit. In most cases, employers will have to prove that there are no readily available national or resident workers qualified to perform the employee's proposed position. This involves making a genuine effort to recruit within the resident worker labour market by advertising the position, and will often be time consuming and expensive. Some countries, for example the UK, the Netherlands and Germany, are willing to waive the advertising requirement when dealing with intra-company transferees.
The qualifying requirements for an intra-company transferee are often very similar across the different countries. In the UK, for instance, in addition to the usual requirements applying to normal work permits, to qualify under the intra-company transfer category, the following conditions need to be filled:
- the applicant needs to have been an employee of the foreign entity for at least six months;
- the applicant must have proprietary or specialist knowledge not readily available in the UK; and
- there must be a financial link between the UK and foreign entity.
In Ireland, although the intra-company transfer scheme has been suspended, the authority still issues permits in exceptional circumstances from established companies, for an assignment of an urgent and genuine nature. This scheme is usually restricted to very senior executives.
When the 'intra-company transfer' type of permit is not suitable, some countries offer applicants yet another alternative which is not subject to the advertising requirement either. These schemes are usually designed to attract highly skilled or specialist applicants and/or workers whose skills are in shortage. The procedure involved in obtaining this type of permit and/or visa is usually straightforward and expeditious. Norway and Denmark offer 'specialist' visas, Ireland has in place the work authorisation/visa, and the UK has its Highly Skilled Migrant Program. With the exception of the UK, which is currently experiencing severe delays, this type of application is usually dealt with in a matter of days.
For long-term assignments, another point to be taken into account is whether or not the spouse or partner of the employee will be allowed to accompany the employee and if so, whether they will be entitled to work.
Delphine Dervin, Tel: 020 7495 3003
Email: delphine.dervin@magrath.co.uk
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