The challenges and opportunities of the post-Covid, post-Brexit world

Immigration and Global Mobility expert Samar Shams contributed to this article.  Samar is a Partner at Spencer West LLP. Please contact Samar at samar.shams@spencer-west.com if you have questions about business travel or work visas.

For over a year, there have been significant Covid-related restrictions on how we work and travel. UK and European businesses are now plotting their courses back to ‘normality’. However, the ‘new normal’ will be very different, in three highly significant ways:

1. Flexible working
2. Significantly reduced business travel
3. Brexit – the EU-UK Trade and Cooperation Agreement (TCA)

Key takeaways:

• Covid-19 restrictions mean we are yet to see the substantial impact Brexit will have on business travel between UK and EU. It will resume, but it will be less frequent and far more complex than it used to be.
• Organisations need to get good legal advice to ensure they don’t put their people in difficult situations, let down their clients or pick up large fines.
• Digital ways of working are here to stay with CFOs cutting travel budgets and investing in the best tools to help their people embrace hybrid working and collaborate virtually.
• Whether working with or without partners, there will be staffing and team composition challenges – and increasingly teams will be a mixture of those ‘in the room’ and those joining remotely. Large organisations and smaller consultancies will need effective digital collaboration software such as Changeway to help their transformation and improvement teams successfully and seamlessly
  • visualise and manage their improvement programmes;
  • migrate their methods, techniques and tools to a digital platform to ensure consistency in (hybrid) delivery; and
  • securely manage data centrally. 

1. Flexible Working 

For many of us, the pandemic has substantially and permanently changed how and where we work.

• 86% of the UK’s 50 biggest employers surveyed by the BBC advised that they will not be returning to full-time office environments. A string of organisations including Nationwide Building Society, Deloitte, ASDA have confirmed their many of their employees will be free to work from anywhere, every day of the week.
• PwC’s 2021 global survey of 32,500 workers found that only 9% wanted to return to the office full-time, leading Partner and People & Organization Leader, Chaitali Mukherjee, to state ‘with ongoing investments in technology, virtual collaboration will become a seamless part of the employee experience.’
• Google’s VP of People Analytics, Brian Welle, believes that “this is a sea-change. There is no going back to the status-quo.” Accordingly, Google is remodelling its campuses for the return of staff by designing spaces (e.g. Campfires) where technology ensures ‘virtual participants are on the same footing as those physically present’.

2. Significantly reduced business travel

Travel restrictions aimed at reducing the spread of COVID-19 have reduced global business travel in the last 18 months, and it won’t be returning to its pre-pandemic levels.

• Many organisations have reported huge savings from reduced business travel, and CFOs are keen to lock them in. For example, in 2020, Amazon reported $1Bn savings, and HSBC $300m.
• In November 2020, Bill Gates predicted a permanent reduction in post-pandemic business travel of more than 50%.  The Financial Times recently confirmed many large corporations in the financial sector, including HSBC, Lloyds Banking Group, and ABN Amro, are indeed planning on this -50% figure.  Even the Chief Executive of the world’s largest airline, Star Alliance, is assuming a 30% contraction in the business travel sector.
• 75% of UK and EU nationals surveyed by YouGov in January 2021 said that they had maintained or improved their productivity despite not being able to fly to see clients / colleagues.
• The sustainability agenda has also gathered pace, with more organisations measuring their CO2 emissions and targeting substantial reductions. This invariably requires a sizeable reduction in travel.

Going forward, we will make fewer, longer, more considered trips and use technology to collaborate virtually the rest of the time. Better for the bottom line, better for productivity and better for the environment.

3. ‘Brexit’ – the EU-UK Trade and Cooperation Agreement (TCA).  

As a result of the Brexit agreement, UK nationals travelling to the EU for business and vice versa are no longer allowed to ‘work’ without a work permit / visa.  The TCA sets out provisions for business visitors, contractual service suppliers, independent professionals and intra-corporate transferees between the EU and the UK.  Each EU Member State and the UK have specified provisions or restrictions to shape their implementation of each of these routes.

Generally, business visitors can attend meetings, undertake market research, participate in classroom-based training or observation, purchase goods and services, take orders, negotiate sales and sign contracts.  UK nationals are allowed to spend up to 90 days in the EU within any six-month period; both business and holiday visits will count toward this limit.

Business visitors cannot work.  Where an individual will be working in the EU, they might be able to enter as a

1. contractual service supplier
2. independent professional
3. intra-corporate transferee

The TCA sets out a framework and basic eligibility and conditions for each these routes.

There are no EU-wide visas for contractual service suppliers, independent professionals or intra-corporate transferees; each Member State has implemented each of these routes. Where entry as a visitor is not appropriate, an individual would need a visa for each of the 27 countries in which they plan to work.

The contractual service supplier route is appropriate for employees of UK organisations that do not have a presence in the EU, who will be working on contracts of 12 months or less. Contractual service suppliers must have at least three years of professional experience and a university degree.  They must not be paid from the EU.

Independent professionals are UK self-employed service providers who do not have a presence in the EU, and will be working on contracts of 12 months or less.  Contractual service suppliers must have at least six years of professional experience and a university degree.

The intra-corporate transferee route facilitates transfer of UK employees who are managers, specialists or trainees to EU companies in the same corporate group.  Managers and specialists need at least one year of service with the UK employer and can work in the EU for up to 3 years. Trainees need at least 6 months of service and can work in the EU for up to 1 year.

To determine the most appropriate visa route, organisations will need some basic information, including the following:

• what type of activities each individual will undertake during the trip (both intra-corporate and with clients)
• whether the individual is an employee or a contractor
• the duration of a contract agreed with a client
• the professional experience and qualifications of each individual
• how many days each individual will spend in UK/EU in a given 180-day period
• employee’s length of service.

What will be different? Organisations will need to plan in advance and define workers’ intended activities. They may need to seek advice to facilitate business visits and work visas.

UK nationals will no longer be able to enter the EU using E-gates, and vice-versa. Travellers should therefore expect to present their passports to a border officer, who will ask about the nature and duration of the trip. They will expect to see evidence of necessary work permits or visas, insurance and means of subsistence, proof of return/onward journey, etc. Border control officers can access information on an individual’s immigration and criminal history through databases shared between countries.

Time should be allowed to obtain country-specific work visas: for some countries, it is advisable for UK nationals to submit applications up to three months in advance.

Are there potential consequences of accidentally or deliberately getting things wrong? Yes, though they will vary between EU countries.  Potential consequences of illegal entry or illegal working in an EU country include the following:

• Detention;
• Being turned away by the carrier or at the border;
• Being returned to one’s originating country. Consider the case of the British tradesmen who were deported from Germany in April 2021;
• Fines, e.g. Italian immigration law dictates a fine of between €5,000 to €10,000 for illegal entry or illegal working;
• Imprisonment;
• Being banned from the destination country; and
• Future entry or visa applications being scrutinised more closely and so taking longer to process.

Tax, GDPR and employment law issues should also be taken into account when planning remote deployments. Employers need to re-think their duties of care, how they ensure their people have the right documentation, and how they manage the overlap between business and personal days spent abroad.

How much of an impact will Brexit have on business travel? We’re yet to see!

The UK Professional Services sector, including consulting, is expected to see a significant impact given that many of their clients have locations in multiple countries, each of which will require the correct paperwork and permits.

Given the legal complexity, the potential consequences and the likelihood of their employees being stopped by border officers, many organisations will need help to support workers’ travel and secure work visas as necessary. Organisations need legal advice to ensure they don’t put their people in difficult situations, let down their clients or pick up large fines.