In this blog Woodcock Law looks at the legal implications in terms of immigration law of employees working overseas. There are also many considerations in terms of taxes (both personal and corporate), HR policy and employment law, and health and safety. We can advise you on these alongside our specialist knowledge of immigration law.
Non-EU, EEA and Swiss citizens
Employees who are non-EU/EEA or Swiss citizens should hold a valid UK Visa, such as a Tier 2 General Visa or Tier 2 Intra-company Transfer Visa. Under the conditions of a Tier 2 visa, employees can travel outside the UK for business, holiday or secondment. If a home-working arrangement is in place, the employee may return to their overseas home to work remotely for their UK employer.
The employee must have entry clearance or leave to remain for a period of more than 6 months. They must continue to be employed by their sponsor company and not have a lapse in employment of one month or more.
The sponsor employer can agree to their employee working remotely temporarily if they are satisfied that the work can be done effectively from home, with adequate monitoring, technology, and data security, without further permissions from the UK Home Office.
However, an employee with Indefinite Leave to Remain must ensure that they are not outside of the UK for more than 2 years. If the employee has a time-limited visa, they must ensure that they extend their visa prior to the expiry date. In such cases, they will need to make a new visa application to return to the UK.
It is important to seek advice from an immigration solicitor to ensure that you fully understand the implications of travelling overseas. If your leave lapses or expires while you are out of the UK, you may need to wait 12 months until you can apply to return to the UK under Tier 2.
In addition, too many or too prolonged absences from the UK may affect the employee’s right to apply for Indefinite Leave to Remain (ILR) after 5 years.
EU/EEA or Swiss citizens
With the Brexit transition period coming to an end on 31 December 2020, it will not be as easy for EU, EEA and Swiss citizens to work remotely, whether in their home country or from a holiday home. The UK’s new immigration system will come into effect on 1 January 2021, requiring workers in this category to apply for settled or pre-settled status under the EU Settlement Scheme.
EU/EEA or Swiss citizens who have not secured valid immigration status under the EU Settlement Scheme prior to leaving the UK may need to apply under the new points-based system to be able to return to work in the UK post 1 July 2021. In many cases, this will be for a skilled worker visa or an intra-company transfer visa. The employer will need to obtain a sponsor licence, and the applicant must meet strict application requirements. Read our Sponsor Licence Guide for Employers here.
Employees from the EU/EEA or Switzerland who are currently living and working in the UK but wanting to work remotely from home overseas should secure settled or pre-settled status in the UK before they travel.
How Woodcock Law can help
It is best to seek expert advice when considering remote working for migrant employees. Woodcock Law is well placed and highly experienced in providing guidance and assistance on immigration matters.
We recommend getting in contact with us on 020 7712 1590 for our specialist advice on your specific circumstances and needs.