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Immigration rules post-Brexit: How can EEA manufacturers come to the UK to install and assemble their products?
One of the biggest Brexit challenges that emerged this year fits the following scenario: a British entity needs to be supplied by a European manufacturer and the contract requires the installation, construction and assembling of the products concerned. This can happen with any kind of product, from the assembling of simple furniture to highly technological material required for the construction of energy plants.
If we take the example of an energy plant (it could equally be medical machinery), the material can only be assembled by a group of highly skilled workers, usually comprised of the manufacturer’s employees and subcontractors, and often totalling tens or even hundreds of people. Needless to say, the financial interests at stake for both the British and European entities can amount to tens and hundreds of millions of pounds or Euros.
Before Brexit this kind of contract was commonplace and nobody had to worry about immigration issues – European workers could freely come to the UK for an unlimited amount of time and install the highly specialised or technological products. Now things have changed; European workers can come to the UK only as visitors for a maximum of 180 days a year, or they can work and live here if sponsored. But this kind of job might not be open to sponsorship because not every worker would necessarily fall into the category of skilled worker (and might not even have the right level of English language knowledge). Besides, these workers rarely intend to live in the UK: their life and families are in Europe.
However, it usually takes more than 6 months to build an energy plant and, generally, visitors are not allowed to perform any kind of “constructive” activity even for a single day.
The rationale of the immigration rules is that British nationals/residents should undertake the job. However, this is unrealistic because they do not know the products and therefore do not have the required skills. We would not want the products to fall apart or to be unsafe, and we need them because they cannot be sourced here. So, do the immigration rules offer alternative permissions to resolve this dilemma?
Initially, a permission was given only to the employees of the manufacturers, hence jeopardising the whole supply chain, and excluding the subcontractors. Fortunately, after a period in which professionals were lost in the so created “grey area”, the immigration rules evolved and on 10 September 2021 they were amended to take into account the reality of these contractual relationships.
As illustrated below, the immigration rules now cover more sophisticated and realistic scenarios in which an employee of an overseas company may install, dismantle, repair, service or advise if said company is the manufacturer or supplier of a UK company or if it is part of a contractual arrangement for after sales services agreed at the time of the sale. This means that the subcontractors have finally been taken into account.
It is to be noted that this alternative solution is possible only if the workers are hired and paid overseas rather than in the UK:
Immigration Rules Appendix Visitor: Permitted Activities
Manufacture and Supply of Goods in the UK
PA 7. An employee of an overseas company may install, dismantle, repair, service or advise on machinery, equipment, computer software or hardware (or train UK based workers to provide these services) where there is a contract of purchase, supply or lease with a UK company or organisation and either:
- (a) the overseas company is the manufacturer or supplier; or
- (b) the overseas company is part of a contractual arrangement for after sales services agreed at the time of the sale or lease, including in a warranty or other service contract incidental to the sale or lease.
The next question to be addressed is that of the duration of these missions. In principle, as standard visitors, the UK stay should last for a maximum of 180 days a year; but, again, although that may be appropriate in many circumstances, it may not be realistic for long term and/or complex projects.
Would it be possible then to have workers sent to the UK for a period longer than 180 days a year? Is an extension of the stay possible?
Extensions on standard visas are possible in certain circumstances, such as for patients receiving medical treatment, academics, graduates retaking the PLAB (Professional and Linguistic Assessment Board) or completing a clinical attachment.
EEA nationals do not need to apply for a visa to come to the UK as visitors and, as seen above, they can stay for a maximum of 180 days per year like other overseas nationals. However, unless they fall into in any of the three categories listed above, they cannot extend their stay as “visitors”.
If overseas workers were to stay in the UK for more than 180 days, it would be necessary to go through a sponsorship process and they would become UK tax residents. Where sponsorship is not possible, an alternative option could be to consider a rotation of workers, as well as coaching local staff, in view of direct employment in the UK.
To avoid unwanted immigration, employment, commercial and tax consequences careful thought needs to be given to the operation of the contract and the drafting of contractual terms which our Immigration, International, Employment and Commercial teams are well placed to advise you upon.
Sarah Marangoni is tri-lingual and dually qualified as French Avocat & English Solicitor. She is a Consultant with Buckles Solicitors LLP in alliance with CastaldiPartners.