Sending staff to work in Europe – the latest position
The following article appears in ABTA's latest issue of Travel Law Today.
Julie-Rose Helling, Solicitor – BLM
The start of the ski season is imminent and for many tour operators this will be the first time they are sending staff to work in Europe since the end of the transition period.
Brexit has brought an end to the freedom of movement UK citizens once exercised and sending staff to work in the EU has become more difficult. There are new requirements tour operators will need to comply with and it is important to be familiar with the options available for entry and visa requirements.
Tour operators who wish to send staff to work in an EU country will need to check the individual country’s immigration rules and specific visa requirements: in most cases, individuals will require work permits – the same as other nationals from outside the EU and the EEA.
There are, however, exceptions in place through the ability to exercise rights under the UK-EU Trade and Cooperation Agreement (TCA) and the Withdrawal Agreement, which came into effect on 31 January 2020.
Short visits up to 90 days
British citizens are permitted to visit the EU for certain restricted purposes for up to 90 days, within any 180-day period, without the need to obtain a visa.
Country-specific restrictions are in place, however, which tour operators and travel agents will need to be aware of. Greece, for example, requires third-country nationals to obtain a diploma from the Tourist Guide Schools of the Greek Ministry of Tourism to be able to practise, with limited exceptions.
To ensure compliance with relevant laws, the requirements for each country will need to be scrutinised prior to sending staff abroad.
TCA – conducting business within short visits up to 90 days
In accordance with the TCA, whether staff undertaking business or work activity in an EU country require a work visa or not is dependent on the country being visited and the type of business activity being undertaken.
Whilst the TCA sets out the business activities that are permitted and prohibited, there are exceptions for specific countries, making application of these rules more complex.
This list is not exhaustive, but business activities generally permitted under the TCA for a short-term visit to an EU country include:
- Meetings, conferences or consultations with business associates.
- Certain research (including market research) and design activities.
- Training in techniques and work practices restricted to observation, familiarisation and classroom instruction.
- Trade fairs and exhibitions for promoting company products or services.
- Representatives of a supplier of services or goods taking orders or negotiating or entering into agreements, but not delivering goods or supplying services themselves.
- Commercial transaction activity: management and supervisory personnel and financial services personnel (including insurers, bankers and investment brokers) engaging in commercial transactions for a UK organisation.
- Tourism personnel attending or participating in conventions or accompanying a tour that has begun in the UK.
Some EU countries have not agreed to the full list of permitted business activities and other individual EU countries have carved out their own applicable restrictions. For example, Sweden requires a visiting person exercising their right under the TCA as tourism personnel to obtain a work permit, except if they are drivers and staff of tourist buses.
It will be important for tour operators to familiarise themselves with the restrictions in place in the EU country they wish to send staff to.
There are certain activities that are prohibited, such as selling goods and services to the general public, receiving local remuneration and engaging in the supply of certain services.
TCA – establishing a business
If you are looking to set up a business in the EU, UK staff in a senior role, who are responsible for establishing the legal entity on behalf of their company, are able to travel as visitors and will generally not require a work permit for stays of up to 90 days within a 180-day period.
The staff member must not receive payment from a source within the EU or provide services other than those required for the establishment of the legal entity.
TCA – providing services under a contract
If you are sending staff to an EU country under a contract to supply services to a consumer within that EU country, they may be able to work in that country for up to 12 months. To exercise this right the staff member must have worked for the tour operator for at least 12 months and have sufficient experience and qualifications legally required by the host country to carry out the activity under the contract.
The service provided under the contract must fall within the scope of the TCA, which includes the provision of services relating to travel agency, tour operator’s services and tourist guide services. Some member states have their own set of restrictions, for example, Denmark requires individuals providing services relating to travel agencies and tour operators to undertake an economic needs test if they are staying for longer than three months.
Certain EU countries have put in place schemes requiring the consumer of the service to obtain a particular type of work permit. It will therefore be important for a tour operator to consider the extent to which the EU country they are sending staff to has adopted the TCA and carved out their own exceptions.
TCA – intra-corporate transferees
The TCA states that managers, specialists and trainees can be considered as intra-corporate transferees and, as long as an intra-corporate transferee permit is successfully applied for, the staff member will be able to enter and stay temporarily in an EU country.
Whilst these rules may enable tour operators with presence in the EU to send certain staff to another office within an EU country, there are often more arduous requirements, such as the need for a new employment contract to be entered into with the arm of the company in the destination country and the requirement for individuals to continue to obtain a residency permit.
The duration for which they can stay is dependent upon their position, for example, managers or specialists can remain for up to three years, with trainee-level employees only able to exercise this right for up to one year.
If you have staff who had previously commuted regularly to Europe prior to 1 January 2021, including countries in the EU or EFTA, they may be eligible to apply for a Frontier Worker Permit.
The permit needs to be obtained from the destination country. It offers tour operators looking to send staff to a destination within the EU, where they had previously worked on a continuous basis, a unique gateway as an alternative to a visa.
Each EU country has their own specific guidance in place for the application process and applicants are therefore advised to check the guidance for the country they intend to obtain their permit from. The deadlines for applications for some of the countries have passed, although others are continuing to accept frontier worker applications.
Outside the freedom offered under the TCA and through the Withdrawal Agreement, staff will need to comply with the country’s individual immigration and visa requirements. The rules for sending staff to Europe remain complex and it will be necessary for tour operators to consult local immigration lawyers to ensure they comply with specific requirements in each EU country.
This is an issue that will extend into summer 2022 as tour operators look to send staff to cover the summer season at resorts throughout the EU. With COVID-19 continuing to create challenging trading conditions, the need for tour operators to take local immigration advice for individual destinations will
represent an additional burden on the travel industry.
It may be sensible for tour operators to forecast for the additional costs that will be incurred in complying with the new requirements for sending staff to work in Europe and ensure all options are considered so the most cost-effective method of deploying staff can be taken.