Frontier worker visa

Frontier worker permit eligibility guidance

A person will meet the eligibility requirements for a frontier worker permit, if they were, immediately before the end of the transition period (11pm GMT on 31 December 2020), and have been continuously since 11pm GMT on 31 December 2020:

a European Economic Area (EEA) citizen

not primarily resident in the UK

and either:

a worker or self-employed person in the UK

a retained worker or self-employed person in the UK

From 1 July 2021, it is mandatory for a frontier worker to hold a frontier worker permit in order to enter the UK as a frontier worker. The only exception to this is Irish citizens, who have a separate legal right to enter and work in the UK.. Ireland has separate arrangement with the UK without needing to rely on rights as a frontier worker. If, after this date, you encounter an individual who is seeking to enter the UK as a frontier worker, but does not hold a frontier worker permit, you must refuse them admission under regulation 6.

“not primarily resident in the UK” before 11pm on 31/12/2020

In order to be eligible as a frontier worker under the scheme, an applicant must not have been primarily resident in the UK immediately before 11pm GMT on 31 December 2020 and continue not to be a primary resident in the UK thereafter.

An applicant will meet the definition of “not primarily resident in the UK” under regulation 3(3)(a) for the relevant period if they have been present in the UK for more than a total of 180 days in any relevant 12-month period or periods and they have also returned to their country of residence at least either:

once in every 6 months period or periods

twice in every 12-month period or periods Where applicants claim to have travelled to their country of residence with the required frequency, they must give details of this travel.

Applicants are required to provide proof of an address outside the UK to confirm that the country they are travelling to is their country of primary residence. This address does not have to be in one of the 27 EU member states as frontier workers can be resident anywhere outside of the UK to be eligible under the scheme. For the purposes of an application, you may accept a declaration of an applicant’s non-UK residential address as proof of residence outside of the UK. Where you are not satisfied it is genuine, you must make further enquiries to satisfy yourself the applicant meets the residency requirement.

Categories of economic activity immediately before 11 pm GMT 3/12/2020

In order to be a frontier worker under the Regulations a person must have been, immediately before the end of the transition period (11pm GMT on 31 December 2020), and have been continuously since the end of the transition period, any of the following:

a worker in the United Kingdom

a self-employed person in the United Kingdom

a person treated as a worker or self-employed person in the United Kingdom by virtue of regulation 4 of the Regulations ‘Worker’ and ‘self-employed person’ are to be interpreted in accordance with Articles 45 and 49 of the Treaty on the Functioning of the European Union (TFEU).

Retained worker status under regulation 4 is to be interpreted in accordance with Article 7(3) of EU Directive 2004/38/EC

‘Immediately before”

Immediately before” means the person must meet the requirement before the end of the transition period rather than at some irrelevant point in the past. It does not mean the applicant must have been in the UK working on 31 December 2020, rather it means they must not have ceased to be a worker or self-employed person in the UK, or have ceased to have retained worker status, by this date.

To be considered within scope of the Regulations therefore, the applicant must have worked or been engaged in self-employment in the UK:

at least once in the 12 months before 11pm GMT on 31 December 2020 (or meet the criteria for retained worker status under regulation 4 at this date)

To maintain their frontier worker status

To maintain their frontier worker status under the regulations an applicant must continue to come to the UK for the purpose of work or self-employment at least once in every rolling 12-month period from their first instance of work or self-employment in the UK in 2020.

Genuine and effective, and not marginal and ancillary

The work or self-employment activity must be genuine and effective, and not marginal and ancillary to their lifestyle as a whole whilst in the UK. See the sections titled workers and self-employed for guidance on considering genuine and effective economic employment for workers and self-employed people in the UK.

Employment

Genuine employment may have no formal contract but should have:

an employer

an agreement between employer and employee that the worker will perform certain tasks

confirmation the employer will pay or offer services (such as free accommodation) or goods for the tasks performed

An applicant’s employment may be with an employer based in the UK or based outside the UK. In all cases you must be satisfied the applicant is required to be present in the UK working. Reasonable evidence of this may include:

a contract specifying the dates of employment, the place of work being the UK (rather than, for example, the country of employment where the employer is based outside the UK) and/or the work must be wholly or partly undertaken from within the UK

a letter from employers confirming the need for the employee to travel to the UK for the purpose of work and outlining the nature of the work undertaken, the frequency and usual duration of this travel

payment of social security contributions in the UK (and that such payments were made before 31 December 2020), for work undertaken in the UK.

In all cases, you must be satisfied the applicant has received payment for the work carried out in the UK. Applicants must submit proof of payment for the work done in the UK for the relevant periods. This may include wage slips or bank statements covering the relevant periods of work.

Employment must be ‘genuine and effective, and not marginal and ancillary’

While there is no minimum amount of hours which the applicant must be working for in the UK in order to qualify as a worker, you must be satisfied the work carried out in the UK is genuine and effective, and not marginal and ancillary to their situation as a whole in the UK.

Marginal and ancillary means the work carried out in the UK involves so little time and money as to be largely irrelevant to the lifestyle of the applicant whilst in the UK. Examples of activities in the UK which may be considered marginal and ancillary include:

attending an interview or short, individual meetings

negotiating and signing a deal or contract (where the work for the contract is not carried out in the UK)

taking part in a one-off competition or audition (for artists, entertainers or musicians)

being briefed on the requirements of a UK based customer, if any work for the customer is done outside of the UK

However, the context may mean these activities do amount to genuine and effective work. You must carefully assess each case on its own merits to see whether the EEA citizen’s claimed employment in the UK is genuine and effective. Relevant considerations for employed workers include:

whether there is a genuine employer-employee relationship

whether there is an employment contract specifying the employee is required to carry out work in the UK

number of hours worked in the UK

frequency of work in the UK

level of earnings from activities in the UK (see level of earnings).

The PET is provided as a weekly, monthly or annual amount, so if you wish to compare it against a frontier worker’s daily pay you can divide the weekly amount by 5 to get a daily rate

In cases where the applicant is earning below the PET for work carried out in the UK you must make enquiries into whether the activity relied upon is nonetheless genuine and effective. When applying the level of earnings test to frontier worker applications, you must only consider those earnings which are a result of work carried out in the UK.

Self-employment– frontier worker

The immigration officer must be satisfied the applicant is genuinely self-employed, working for themselves and generating an income in an ‘established’ self-employed capacity in the UK. They must have engaged in genuine and effective economic activity in the UK as a self-employed person during the relevant time periods, and their work must be stable and continuous. There is a difference between an established self-employed person who is carrying out stable and continuous work in the UK, and a person who comes to the UK to provide services on a temporary basis. The latter is outside the scope of Article 49 of the TFEU and so not eligible for a frontier worker permit.

Applicants must provide evidence in support of their application which shows they meet the factors listed below:

economic activity in the UK, which means they have performed certain tasks in the UK, such as selling goods, in return for payment or services

stability and continuity of self-employment in the UK

genuine and effective self-employment in the UK

membership of a professional body (where relevant)

Stable and continuous self-employment

Relevant considerations when determining whether a self-employed person is ‘established’ in the UK carrying out stable and continuous work may include:

frequency of economic activity in the UK

how long the applicant spends in the UK carrying out economic activity

whether the activity in the UK is regular

whether the activity in the UK is stable, for example it is clear the applicant will return to the UK to carry out work after each period of economic activity in the UK

whether the applicant has any infrastructure established in the UK, such as business premises or offices

whether the applicant has paid and continues to pay income tax in the UK to HMRC

whether applicant’s company is registered with Companies House in the UK If an applicant has carried out short-term, temporary, irregular and unstable selfemployed activity in the UK, it is more likely than not they are a service provider rather than a self-employed frontier worker.

Evidence of self-employment – frontier worker

Applicants must submit evidence of self-employment in the UK, and proof of earnings for this employment. Reasonable evidence of self-employment in the UK may include contracts to undertake work in the UK. If the applicant is unable to provide formal evidence such as contracts of self-employment, they must explain why and provide at least one alternative form of evidence of self-employment covering the relevant periods. This may include:

invoices for work done in the UK

a copy of the business accounts showing payments for work done in the UK

emails or text messages organising the work in the UK

testimonials or references from clients in the UK

examples of business advertising in the UK

Reasonable evidence of proof of earnings may include:

proof of registration for tax and national insurance purposes with HMRC, for example o letter of self-employed status o letter confirming payment of tax and NI contributions in the UK o income tax return from HMRC

copies of invoices or receipts for payments for work undertaken in the UK – if the business is a limited company these must be on company-headed paper

business bank statements with an explanation of payments made for work done in the UK – the applicant must be named on the account, or otherwise provide evidence to show they have access to the account

Genuine and effective self-employment

Once the immigration officer is satisfied the self-employment in the UK is genuine, stable and continuous, you must also satisfy yourself the work the self-employed person is carrying out in the UK alone is effective and not marginal and ancillary to their situation as a whole when in the UK.

While there is no minimum number of hours which the applicant must be working for in the UK in order to qualify as a worker, as with employment, marginal and ancillary means the economic activity carried out in the UK involves so little time and money as to be largely irrelevant to the lifestyle of the applicant when in the UK.

You must carefully assess if the applicant’s claimed self-employment is genuine and effective. You must assess each case on its own merits, considering a number of factors, including level of earnings and the frequency and duration of economic activity in the UK, although not all the factors will be relevant to every application. You must decide each application after analysing all the relevant circumstances.

HMRC has a primary earnings threshold (PET), which is the point at which employees must pay class 1 national insurance contributions. The PET is updated each financial year and you must check the HMRC website for the current rate. You can use the PET as a benchmark against which to assess a person’s pay where you are considering whether the work they are carrying out in the UK is genuine and effective. The PET is provided as a weekly, monthly or annual amount, so if you wish to compare it against a frontier worker’s daily pay you can divide the weekly amount by 5 to get a daily rate

Following the Court of Justice of the European Union (CJEU) judgment in Gusa C442/16 a self-employed person is able to retain their status as a self-employed person in a similar way to a person retaining status after a period of employment.

For the purposes of this section, unless otherwise specified, references to ‘work’, ‘working’ or ‘worker’ means employment or self-employment, or someone undertaking those activities.

Temporarily stopped working in the UK

Someone who has temporarily stopped working in the UK can still be considered a worker under regulation 4 of the Regulations if they can provide proof they had previously carried out genuine and effective work in the UK as a worker and they are:

temporarily unable to work in the UK because of illness or an accident

in duly recorded involuntary unemployment

involuntarily unemployed and have embarked on vocational training

voluntarily stopped working to start vocational training related to their previous occupation

temporarily unable to work in the UK following pregnancy or childbirth

A person who has been a worker or self-employed in the UK for less than one year before becoming involuntarily unemployed may only retain their worker status as someone who is looking for work for a maximum of six months.

If an applicant is applying as someone with retained worker status they must provide proof of their previous employment in the UK, and proof of earnings from this employment. You must be satisfied the previous work they carried out in the UK was genuine and effective, and not marginal and ancillary (see above for guidance on genuine and effective work and genuine and effective self-employment). The following table sets out some of the evidence you may accept. This table is not exhaustive, and you must consider each case individually.

In these cases the applicant must provide medical certificates or a letter from their doctor outlining the reasons for their inability to work in the UK and why this is temporary.

An applicant may still qualify as a worker if they are involuntarily unemployed after having been employed in the UK and provide proof they:

• have registered as a job seeker with an unemployment office or a recruitment agency

are seeking work in the UK – they must provide evidence covering the period they’ve been looking for work in the UK, which can include:

o copies of recent job applications for posts in the UK

o rejection letters from employers for posts in the UK

o invitations to job interviews for posts in the UK.

At least one piece of evidence of seeking work must be dated within the 3 months before the date of the application.

If the applicant was working in the UK for less than one year before becoming involuntarily unemployed, then they cannot retain worker status for longer than 6 months.

If they had been working for at least one year in the UK they can retain their worker status for longer than 6 months if they can provide compelling evidence to show they are continuing to seek employment in the UK. Compelling evidence of continuing to seek work may include proof the applicant has:

increased the number of jobs they are applying for

widened their job search in the UK by applying for roles in new locations or sectors

registered with additional job search sites online, such as Indeed or Job.com

Applicants who are involuntarily unemployed in the UK and have started vocational training must provide evidence the unemployment in the UK was involuntary (see proof of previous employment). They must also provide proof they are enrolled on a vocational course. This may include a letter from organisation/training provider confirming course or courses, period or periods of training with start date or dates, and confirming they are attending the training. This list is not exhaustive and any information provided by an applicant must be fully considered.

As well as the evidence listed under the section Involuntary unemployment and vocational training, if a person has voluntarily stopped working in the UK but has started vocational training, they must show their vocational training is related to their previous employment in the UK.

This section does not cover applicants who are on maternity or paternity leave. A person on maternity leave has not terminated their employment and so must be considered as a worker, rather than a person with retained worker rights.

Applicants who are temporarily unable to work or engage in activities as a selfemployed person in the UK as a result of pregnancy or childbirth can retain their worker status if they provide proof of their pregnancy or childbirth. This can be in the form of:

medical certificates or a letter from their doctor confirming the pregnancy took place, the due date/birth date, and naming them as the parent

the full birth certificate of their child naming them as the parent A person who is temporarily unable to work due to pregnancy or childbirth can retain their worker status for up to 52 weeks (12 months) from the date they cease working or self-employment in the UK.

During this time, they are not required to seek employment or self-employment to retain their worker status.

A frontier worker may continue to retain their worker status after the initial 52-week (12 month) period if they provide proof they are looking for work or self-employment in the UK and they have registered as a jobseeker with an unemployment office or a recruitment agency. For further information see ‘Duly recorded involuntary unemployment’ If an applicant has not commenced work or job seeking in the UK after this period of 52 weeks, they lose their retained worker status. In these cases, you must refuse the application under regulation 3.

Unable to meet the eligibility criteria as a result of COVID-19

This section tells you how to consider applications where the applicant claims they have not been able to meet the eligibility criteria as a result of being affected by restrictions associated with coronavirus (COVID-19). This includes not being able to:

submit a valid identity document

meet the residency requirements

meet the employment requirements

Suitability

Regulation 9 of the Regulations sets out the basis on which an application for a frontier worker permit must or may be refused on suitability grounds. Under regulation 9(1), an application for a frontier worker permit may be refused:

on grounds of public policy, public security or public health in accordance with regulation 18

on the ground the decision is conducive to the public good in accordance with regulation 19

on grounds of misuse of rights in accordance with regulation 20 Under regulation 9(2), an application for a frontier worker permit must be refused if the applicant is subject to a relevant restriction decision. A relevant restriction decision means:

an exclusion direction

an exclusion or deportation order made or treated as having been made under the EEA Regulations 2016, including those continued in effect by regulations made under section 7 or 9 of the European Union (Withdrawal Agreement) Act 2020

a deportation order made under regulation 15(1)(b) of the Regulations

a deportation order made under section 3 of the Immigration Act 1971

Assessment of suitability

The assessment of suitability must be conducted on a case by case basis and be based on the applicant’s personal conduct and circumstances in the UK and overseas, including whether they have any relevant prior criminal convictions, and whether they have been open and honest in their application. Applicants (aged 18 or over) are required to provide information about previous criminal convictions in the UK and overseas and are only required to declare past criminal convictions which appear in their criminal record in accordance with the law of the State of conviction at the time of the application.

There is no requirement to declare spent offences, cautions or alternatives to prosecution for example fixed penalty notices for speeding. Applicants (aged 18 or over) are also required, as in other immigration applications, to declare whether they have any been involved in any terrorist related activities, war crimes, crimes against humanity or genocide.

From information provided by the applicant and obtained from the PNC and/or WI, you must consider whether it is justified to refuse the application:

in respect of conduct committed before 11pm GMT on 31 December 2020, on the grounds of public policy, public security or public health

in respect of conduct committed after 11pm GMT on 31 December 2020, on the ground the decision is conducive to the public good If the time of conduct on 31 December 2020 is unclear, you must regard it as having taken place before 11pm and consider whether to refuse the application on grounds of public policy, public security or public health.

Regulation 11(2) of the Regulations provides that frontier worker permits may be revoked at any time under the following circumstances:

on grounds of public policy, public security or public health in accordance with regulation 18

on conducive grounds in accordance with regulation 19

on grounds of misuse of rights in accordance with regulation 20

where the permit holder is subject to a relevant restriction decision

Remedies available if frontier worker application is refused

Anyone who makes a valid application under The Citizens’ Rights (Frontier Worker) (EU Exit) Regulations and is refused will be able to challenge the decision by appeal and/or (depending on the reason for refusal) by administrative review.

Administrative review is available where an applicant is refused on eligibility grounds.

Anyone who makes a valid application under The Citizens’ Rights (Frontier Worker) (EU Exit) Regulations will have a right of appeal against a decision to refuse their application. They may appeal on grounds the decision:

breaches any right they have under the Withdrawal Agreement, the EEA EFTA Separation Agreement or the Swiss Citizens’ Rights Agreement

was not in accordance with The Citizens’ Rights (Frontier Worker) (EU Exit) Regulations under which it was made

Where the application is refused on eligibility grounds and the applicant believes the original caseworker has made an error or not followed the published guidance, or where they have new information or evidence in support of their application, they can apply for an administrative review of the decision. A different caseworker in an independent team will conduct a full reconsideration of the decision, taking into account any new evidence or information submitted, and decide whether the original decision was either:

correct and must be maintained

incorrect and must be withdrawn and a new decision made.

Right of admission as frontier worker

Frontier workers, as defined by the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 (“the Regulations”), have a right of admission to the UK during the grace period (the period from 11pm GMT on 31 December 2020 to the end of 30 June 2021). From 1 July 2021 onwards they have a right of admission on production of valid identification and a valid frontier worker permit. They do not require a grant of leave to enter and their travel document must not be stamped. They are entitled to travel using either a valid passport or valid national identity card.

In the majority of cases, a frontier worker permit will be issued digitally. In certain cases where an individual has been unable to apply for a digital permit, they will be issued with a physical permit. Physical permits will be collected by the individual in country, therefore on their first journey to the UK they will hold a frontier worker permit collection letter, which they are required to present to you on entry.

From 1 July 2021, it is mandatory for a frontier worker to hold a frontier worker permit in order to enter the UK as a frontier worker. The only exception to this is Irish citizens, who have a separate legal right to enter and work in the UK without needing to rely on their rights as a frontier worker. If, after this date, you encounter an individual who is seeking to enter the UK as a frontier worker, but does not hold a frontier worker permit, you must refuse them admission under regulation 6.

Revocation of frontier worker permit

Regulation 11 of the Regulations provides for frontier worker permits to be revoked under any of the following circumstances:

• on grounds of public policy, public security or public health in accordance with regulation 18 • on the ground the decision is conducive to the public good in accordance with regulation 19

• on grounds of misuse of rights in accordance with regulation 20

• where the permit holder is subject to a relevant restriction decision.