EU vs UK: New immigration perspectives after BREXIT
As we all know, BREXIT process has caused important issues related to immigration perspectives for both parts involved (EU and UK). Although these two territories have tried to implement a transitional regulation which helps to get used to this new reality, and the Trade and Cooperation Agreement is in effect right now, as global mobility experts we face different matters everyday with difficult solutions, taking into account the new immigration perspectives after BREXIT.
Trying to solve some of them, we have noticed that every part is improvising solutions, which can implicate undesirable results and consequences after global mobility programs implementation, such as fines, or discovering that some employees became illegal citizens on their destination.
In order to clear the current situation and understand the new immigration perspectives after BREXIT process, we would like to go over the concrete regulation is applied in Spain, that contemplates every aspect linked to global mobility matters (posted workers, residence and works permits applicable, tax and Social Security benefits, etc.).
Spanish Measures before reaching an agreement between EU and UK
Firstly, we must take into account that the first applicable measures in Spain (Real Decreto 38/2020) were temporary, and they aimed to regulate the different situations that emerged after January 1st 2021. It is important to point out that these measures expired when the commercial agreement between EU and UK entered into force last May.
The current situation must be studied from 4 perspectives: Immigration, Social Security, Labour and Tax regulations, because every company must take into account these 4 main corners when hiring or displacing a British national emerges.
Labour Relationships started before January 1st 2021
According to the transitional regulations, British nationals who were already working in Spain prior to January 1st 2021 with local contracts, would be able to keep working after that date, with the same conditions than before, with no additional steps required, as long as Spanish nationals can do the same in UK. In order to do that, both countries implemented a fast procedure to change EU citizens residence cards for new residence cards issued for the nationals of the other country who were already living or working in the other Estate before January 1st 2021, trying to smooth Brexit process. This was a good first approach to deal with BREXIT matters. However, what has happened after that transitional period?
Labour relationships after January 1st 2021
Regarding commercial agreement signed by both territories (EU and UK), any British national who wants to move to a EU country member to live or work there with a local contract, will have to ask for a residence and work permit as any citizen from a non-EU country member. The national immigration regulation will be applied to deal with British national residence applications.
Immigration perspective for Posted Workers
A very common case is the one that a British or a European entity displaced an employee to another company located in the other country before January 1st 2021, informing the labour authorities through an official communication, according to European law, and with the A1 certificate issued by the home country, stating that the employee will keep covered by their Social Security along this assignment.
After January 1st, the employees will be able to stay and keep working in UK or Spain along the time of their assignment when this was communicated before that date. However, if this displacement must be extended, as happens many times, this cannot be done through the European procedure anymore, so the host company in Spain will have to apply for a residence and work permit, although being the employee already in-country, a travel visa will not be necessary, avoiding leaving Spain to return when the permit is granted. To apply for a concrete residence and work permit in these cases, the national immigration law will be applicable, so each case must be studied to check what is the most viable option on each country (UK and Spain).
Summing up, if a British company wants to displace an employee, or extend the notifications submitted before January 1st 2021, Spanish immigration law will be applicable, and the displacements will have a maximum duration of 3 years in cases of directors or managers, and 1 year for employees in formation.
The common rule will be that the citizens who perform a professional activity (as an employee or freelancer), in UK or Spain, will be covered by the Social Security of that Estate, and if the citizen does not perform any labor activity, will be covered by the Social Security of the country she/he lives.
Apart from this generality, there are some especial measures or exceptions:
- An employee who works for a British or Spanish entity, who is going to be transferred to the other country to perform a job on behalf of the home entity, will be covered by the Social Security of the Home Country, as long as this transfer lasts a maximum of 24 months, and the employee is not transferred to replace another employee. An A1 must be requested before the social security authorities in the home country. After those 24 months, they will have to be registered at the national Social Security.
- A freelancer who performs a professional activity in one country (UK or Spain), and she/he is going to develop a similar activity in the other country, will keep covered by the Social Security of the first Estate, as long as the activity lasts a maximum period of 24 months.
Bearing the previous information in mind, and regarding the cases that we are dealing with nowadays as global mobility experts, we noted that the most common problem is the next one:
- Disinformation: British and Spanish nationals did not understand the current situation. UK is not part of the EU anymore, so there is not free movements and displacements between both territories (EU and UK). If a British national comes to Spain to start working or living here, they will have to apply for a residence and work permit as any citizen from a third Estate. Same happens when we talk about movements of European citizens to UK.
We face many cases today of British nationals who came to Spain with no residence or work permits after January 1st 2021. In fact, we receive one consultation per day which can be classified within this matter. This just means one thing: Our Governments did not explain new circumstances after BREXIT process correctly.
Moreover, the first commercial agreement application proves some discretionary decisions are made every day, with unfair and, many times, discriminatory results
From my professional point of view, citizens from both territories are still getting used to this new reality, learning the implications of BREXIT day by day, when problems emerge on their lives.