Contractors’ Questions: What is a Frontier Worker permit and can contractors apply?

Contractor’s Question: I am a Data Analyst and a French national. I live at home in France but I sometimes work on projects in the UK. I have heard about the new “Frontier Worker” permit. Will this allow me to continue working in the UK?

Expert’s answer: On December 10th 2020, the UK government launched the new Frontier Worker permit.

Frontier workers are EU nationals who work in the UK but live elsewhere. 

The Frontier Worker Permit is a new permit that allows eligible Frontier Workers to apply for proof of their status. Once granted, the Frontier Worker Permit provides proof of an individual’s right to work, rent a property and access benefits and services in the UK.

Not telling the Home Office (and telling the Home Office)

Frontier Workers are able to access healthcare, benefits and services according to the same rules that applied before Brexit. Under this permit, Frontier Workers can change jobs or move from being employed to self-employed in the UK without needing to tell the Home Office.

The application for a Frontier Worker Permit is free. Once granted, applicants within the UK will be issued a digital permit. Those outside of the UK will receive a physical document. The permit will usually last for five years (although a two year permit can be granted in some circumstances). At the end of their permit, individuals will need to renew their status, and will have to meet the eligibility criteria that apply at the time.

Their rights continue for so long as the individual continues to be a Frontier Worker; if they cease to be a Frontier Worker, they must inform the Home Office and their permit will be revoked.

Irish citizens do not need to apply for a Frontier Worker permit but can choose to do so. Further, British citizens (including those with dual citizenship) are not permitted to apply.

Which contractors are eligible for Frontier Worker status?

You or any other non-Briton individual may be eligible if all of the following apply:

1. You must be a national of the EU, Switzerland, Norway, Iceland or Liechtenstein.
2. You must live outside of the UK.

Generally, the individual must live ‘primarily’ outside of the UK. This will usually mean they must have spent less than 180 days in total in the UK from January 1st 2020 to December 31st 2020 (and over the course of any 12-month period after that -- although, note, this requirement may be met in other ways.)

3. You must have worked in the UK by December 31st 2020.

In other words, you must have set up your frontier working pattern by no later than the end of last year. You can be employed or self-employed (so contractors like yourself are included), but in both cases the work carried out must be “genuine and effective” and not marginal and ancillary to their lifestyle as a whole while in the UK. There are specific tests that must be met and detailed guidance as to what sort of evidence will satisfy the Home Office on these points.

4. You must have continued working in the UK at least once every 12 months since you started working here.

This fourth condition will be particularly important for renewals and maintaining Frontier Worker status. Specific exemptions to this rule may apply, depending on the circumstances.

5. You must meet the general suitability criteria.

This fifth condition means applications can be refused, for example, if the individual is a threat to public security or subject to a deportation order or if preventing entry would be conducive to the public good.

Who might use a Frontier Work Permit?

Example 1, Paul

Paul is a French national who has his own personal service company and has been working as a Data Scientist for an organisation in Edinburgh. He has worked there for the last three years, but his home is in France. As part of his work, Paul travels to Edinburgh for three days in every month to come to work. 

Paul will probably be eligible for a Frontier Worker Permit, so long as the work he was carrying out meets the test of being “genuine and effective” (and there are no other reasons for refusal).

Example 2, Sara

Sara is a Spanish national who lives in Spain but comes to the UK for six weeks at a time to work on an oil rig off the shore of Scotland, which is positioned within UK territorial waters. Sara has been working in this role for the past 15 months.

Sara will probably be eligible for a Frontier Worker Permit, so long as the work she is carrying out meets the test of being “genuine and effective” (and there are no other reasons for refusal).

But, if Sara undertook this role during the entirety of 2020, she will have spent more than 180 days in the UK in that year. She may still be able to apply for a Frontier Worker Permit if one of the exceptions applies. For example, if she has travelled back to her country of residence at least once in six months or twice in a 12-month period.

Let’s complicate Example 2

Sara was made redundant in January 2021 and applies for a Frontier Worker Permit in May 2021. Between January and May she is looking for work in the UK; she registers with a UK-based recruitment agency and has examples of many job applications for frontier worker-type roles.

At the time she applies for a Frontier Worker Permit she is not actively working in the UK. However, she may be able to apply as a “retained worker” under one of the specific exemptions. She worked for more than 12 months before becoming unemployed and has provided proof of seeking employment in the UK that would meet the Frontier Worker requirements.

Example 3, Giovanni

Giovanni is a Digital Project Manager who lives in Italy. He applies for a Frontier Worker Permit in February 2021, He has come to the UK to look for work five times in 2020, each time attending an interview for a role.  However, he was unsuccessful and did not secure any of the roles.

It is unlikely that Giovanni would be eligible for a Frontier Worker Permit because he has not carried out “genuine and effective” work in the UK.

'FWP' – Frontier Work Problems

With effect from January 1st 2021, EU nationals are now subject to the same visa requirements as non-EU nationals. However, the UK government has allowed a six-month grace period during which individuals will be able to continue to rely on their EU passport/ID card in order to work in the UK.

This means that until June 30th 2021, Frontier Workers can continue to use their passport or national identity card to enter the UK and to provide evidence of their ‘right to work.’ But employers and agencies are not permitted to insist on seeing a Frontier Worker Permit during this time.

This creates a problem for employers and agencies however, because between January 1st 2021 and June 30th 2021 they will not know if the individuals who are working for them are eligible for a Frontier Worker Permit or not.  If they are eligible, they will have the legal right to work; if they aren’t, they won’t.

Employers and agencies will want to balance the risk of discrimination with ensuring individuals do, in fact, have the right to work in the UK as Frontier Workers. And so we would recommend that they seek legal advice about how to approach this issue.

For Frontier Workers, from July 1st 2021 the Frontier Worker Permit becomes mandatory and anyone seeking to enter or work in the UK as a Frontier Worker will require a permit to do so. If they do not have this permit, they will not be allowed to enter and will not have a legal right to work in the UK.

Final thoughts

The Frontier Worker permit is an important alternative option for EU nationals, particularly those who don’t meet the criteria under the EU settlement Scheme for Settled/Pre-Settled Status for some reason.

It is also likely to be a useful route for:

• contractors and the self-employed, who have very limited visa routes available to them post-Brexit;
• the lower skilled/lower paid who are ineligible for sponsorship under a Skilled Worker visa; or
• international organisations across all sectors whose employees and contractors regularly work between Europe and the UK.

At the time of writing, we’ve seen interest from clients in this permit post-Brexit across a whole range of sectors, ranging from construction, engineering and manufacturing, to the care sector, financial services and recruitment.

However, the fact that the frontier working pattern must have been established before December 31st 2020 means it is not a viable option for contractors in the long term.

Please note, this article is for general guidance purposes only and does not constitute legal advice. For such guidance, tailored to your individual circumstances, please contact me or my colleague Hannah Morrison.

The expert was Laura Darnley, legal director at law firm Brabners LLP.