Whilst discussions regarding the EU Referendum in the UK reach a crescendo, perhaps the greatest challenge and source of frustration that lies ahead is one that will not be resolved by 24th June – uncertainty. Irrespective of the outcome of the vote, there will be no definitive solution or clear guidelines as to what changes to the existing regulations will be implemented and more broadly how the landscape of UK immigration will be altered in the months and years to come.
For this reason, HR and global mobility professionals may be pondering alternative jurisdictions to relocate their employees to which may offer greater clarity with regard to the process of obtaining work authorisation. They may also be concerned with a possible Brexit and how the position of sending employees on assignment in European countries could change. In this blog, we address what may be considered as permissible activities for a short-term trip under a business visa and the key factors that should be taken into account when sending EU or non-EU national employees based in the UK on long-term global assignments.
Options for international assignments for UK based employees
Managing an international assignment can be a challenging, time-consuming and multi-faceted process. Often, the only people fully aware of the complexities of what is involved are the employees being transferred and the HR professionals tasked with coordinating the immigration, employment, tax and relocation requirements - not to mention navigating the emotional sensitivities that can arise for each particular case. Due to the fast-moving nature of cross-jurisdictional and overseas assignments, immigration lawyers are frequently asked how soon a person can be sent to work in another country whilst adhering to the immigration compliance regulations of the chosen destination. Processing times can sometimes be longer than the actual need for the employee to be in the country required and consequently, the first solution considered is the simple yet restrictive option of obtaining a business visa, particularly for work trips that only last a few days. Whilst allowable activities can vary depending on the destination, we outline below some of the key duties that are permitted for employees travelling on a business visa:
- Participation in internal business meetings and interviews;
- Attending trade fairs for promotional work only;
- Informal sales discussions and negotiating contracts with prospective clients;
- Fact-finding missions to establish the scope and requirements of projects; and
- Attending conferences or seminars as a participant
Business visas are issued by the consulate or embassy of the host country the employee will be travelling to. Generally, they are issued prior to arrival and must be applied for at the consulate located closest to the employee’s place of residence, however for certain countries they can be obtained on-arrival at the port of entry. The threshold for activities that exceed those permitted under a business visa is often considered anything that is deemed ‘productive work’. Whilst this ambiguous terminology can lead to frustration in a scenario that is often time-critical for a business, it is vital to ensure that work authorisation is obtained, should it be foreseen that an employee will be undertaking productive work.
Practical steps to take when sending employees on global assignments
- Plan in advance - Once it is known where an employee will be sent, their nationality and the duration of the assignment, it is possible to provide an approximate guideline as to what options are available. Processes and estimated timelines can vary significantly depending on factors such as salary, payroll location and job description but most crucially the chosen destination. For example, the Netherlands has a streamlined and progressive Knowledge Migrant Program for non-EU nationals that offers an expedited process for sponsors who have received recognised status by the Dutch immigration authorities, the success of which may soon be seen in Australia who have recently implemented an accredited sponsor scheme for the subclass 457 visa. The Dutch system means that applicants need only visit the authorities once upon arrival to complete the registration formalities and collect their residence permit. Other countries, such as Italy or Kenya have adopted a more staggered approach where the end-to-end process can take up to six months to complete all immigration requirements. Countries such as Switzerland have implemented restrictions by way of a quota system where there is a quarterly cap for L permits and similarly in the US an annual quota applies for the highly sought H1-B visas. As such, our recommendation would be to obtain full clarification on the key stages of the process and potential pitfalls from the outset.
- Focus on document preparation phase - It is important to consider additional factors beyond the processing time imposed by the immigration authorities in the host country once a work permit application is filed. We are frequently asked if there is anything that can be done to speed up this stage of the process. In truth, while regular follow-ups can be done, the immigration authorities have full discretion as to when an application is approved and whether additional information should be requested, regardless of the size of the entity or seniority of the employee. It is therefore better to focus on preparing a complete file with all the required documents to obtain approval.
Corporate documents that the sending and host companies are generally asked to provide include evidence of a link between each entity as well as their articles of incorporation, employment contracts, details of the job offer for the employee and a certificate of coverage. We recommend that particular emphasis is given to the mandatory personal documents requested from the employee for the entry visa application. As this is the second stage after the work permit has been approved, it can often be overlooked when a case is opened. Nevertheless, it is standard for immigration authorities to request university degrees, police and medical certificates and marriage and birth certificates in the event employees should be accompanied by their spouses and children. Countries including Spain and Germany ask for these documents to be legalised, which is the process of authentication for valid use in the host country. If the document needed is not in the first language of the host country, additional time should also be allowed for translation.
Finally, it can be common in several jurisdictions to request original documents that have been procured within a certain timeframe prior to submission of applications. In these circumstances it is vital not to obtain such documents too far in advance as they may no longer be valid on filing. Therefore, to ensure a successful application - consider what documents are needed, the required format and how and when they should be procured.
- Post-arrival requirements - Once work permission has been approved and an entry visa obtained, an employee can enter the host country but must ensure that all post-arrival formalities are concluded before starting work. From an immigration perspective, this can be a straight-forward procedure. In Hong-Kong and Nigeria, the process allows for employees to commence work immediately upon arrival. More commonly, a simple registration process needs to be completed within the first few days of entry. For example, in the Czech Republic, the employee must attend the Ministry of Interior to submit their fingerprints and have a biometric photograph taken before formally starting an assignment with the host company. Other non-immigration issues must also be considered, such as social security registration and obligations under local labour/employment and tax laws which can vary depending on the location of the employee’s payroll. Finally, there may be additional steps that can be of great importance to the individual despite not being a mandatory step in terms of immigration compliance obligations, e.g. An ID card or registration with the local municipality is often needed to open bank accounts or finalise car rental contracts.
In conclusion, there are several aspects to a global assignment that require detailed management and coordination. Adopting a flexible and open-minded approach to where an employee is sent on assignment can offer a more streamlined process with greater clarity as to what lies ahead. However, this will only bear fruit with thorough planning in advance, preparation for the document collection phase and due consideration to post-arrival processes.
We will be following the developments closely post the EU referendum and will provide further updates on how this may affect overseas assignments for employees based in the UK.