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Posting Travel Workers in the EU after a No Deal Brexit

27/09/2018

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United Kingdom

No Deal might not necessarily mean No Deal.  Even if a Withdrawal Agreement cannot be concluded, the UK might reach an agreement with the EU, or with its individual Member States, to keep some form of free movement going, at least in the short term.

But, in order to be able to prepare for the worst, it is necessary to consider the default position which will arise if no agreement of any kind can be reached on any issue.

If free movement falls away, employees already living in a Member State are likely to be able to stay but, for any new postings, the immigration rules of each country will have to be considered separately.  For example:

  • very different requirements will apply for such matters as the length of stay permitted, minimum salary level for skilled workers, and the criteria for qualifications and good character;
  • there may be problems for spouses, who need to permission to work in Belgium and Luxembourg, for example, and for unmarried partners, who do not count as family members in France and may not qualify for anything more than a tourist visa; and
  • there will be variations in procedures and in efficiency, leading to a risk of refusals and delays.

The Posted Workers Directive will also fall away. In conjunction with social security regulations, this allows businesses to continue to deduct UK National Insurance from the wages of EU-based employees but, in the absence of an alternative, it will become necessary to make more expensive local deductions instead.

This alternative might be bilateral social security agreements, pre-dating EU membership, between the UK and 20 of the 31 members of the EU and EFTA, so the option to pay NI might survive.  These agreements allow for shorter postings than the current law, twelve months in the case of Spain and six months in the case of France, and they do not easily accommodate employees who travel across several countries, but they might be better than nothing. It might be possible to rely on them in much the same way as bilateral agreements with non-EU countries, by completing form CA3821.

But there is some doubt about the applicability of these historic treaties, and there is no agreement at all for some important countries, including Greece. One option to prepare for the worst case scenario may be to establish in an EU country which also has relatively low rates of deductions, to recruit employees from that country, and to rely upon the Posted Workers Directive from there.

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