Travelling to the EU on business after Brexit

Many of the rules affecting the activities and permitted length of stay for UK citizens travelling on business to the EU vary from one member state to the other.

You can read country-specific information from immigration experts below:

• Austria
• Belgium
• France
• Germany (information available via German Missions in the UK)
• Greece
• Italy
• Luxembourg
• Netherlands
• Spain

The EU Immigration Portal also provides country-specific information for other EU member states, under the “International service provider” section in each country's migration profile.

Find a country on the portal's interactive map

From 1 January 2021, UK citizens travelling on business to the EU can benefit from certain provisions in the EU-UK Trade and Cooperation Agreement (TCA), which regulates EU-UK relations.

The TCA has been transposed into domestic legislation and made to fit within existing immigration frameworks, so the same commitments may take different forms and use different terminology across member states. 

Before any business travel to the EU, solicitors should understand which category of business travellers they fall under, as this will affect areas including the business activities they can carry out while in the country and the permitted length of their stay. 

Solicitors who are UK nationals and travel to the EU on business will fall into one of the following categories:

1. short-term business visitors
2. intra-corporate transferees
3. business visitors for establishment purposes
4. contractual service suppliers
5. independent professionals

LLP partners should check which category applies, depending on the EU member state.

A: Short-term business visitors

This category applies to any individual travelling between countries on business.

Permitted activities

Short-term business visitors may carry out the following activities (subject to any local restrictions):

• attend meetings, conferences and consultations with business associates
• research and design
• marketing research
• training seminars
• trade fairs and exhibitions
• sales (negotiating the sale and taking orders only – not supplying services and no direct sales to the general public)
• purchasing
• after-sales services
• commercial transactions
• translation and interpretation

Permitted length of stay

Short-term business visitors can stay for up to 90 days in any rolling 180-day period.

The 90-day period is cumulative and includes time spent in the Schengen area on holiday/for leisure purposes.

Visa/work permit requirements

Short-term business visitors do not require a visa.

Each EU member state may, however, impose additional requirements and conditions on short-term business visitors carrying out certain activities listed above.

Download the summary of additional requirements listed in the TCA (PDF 143 KB)

Restricted areas of activity

Short-term business visitors cannot:

• sell their services to the general public
• receive renumeration from the country they are visiting, or
• undertake employment (including self-employment)

Additional requirements

In certain member states, business visitors can also undertake additional activities.

Download the country-by-country list of additional permitted business visitor activities (PDF 150 KB)

B: Intra-corporate transferees

This category applies to individuals who:

• are either managers, specialists or trainee employees
• at the time of applying live outside the member state they want to visit, and
• are temporarily transferred to an enterprise of the UK business in an EU member state, including its representative office, subsidiary, branch or head company

You must have been employed by a UK business with a branch office in the EU, or have been partners in it, for at least:

• one year – for managers and specialists
• six months – for trainee employees

For definitions and full eligibility criteria, see article 140 of the TCA

Permitted length of stay

Managers and specialists may stay for up to three years.

Trainees may stay for up to one year.

Visa/work permit requirements

Intra-corporate transferees need to obtain a work residence permit known as an ICT card (see an example from Germany).

Additional requirements

Certain EU member states have imposed additional conditions on intra-corporate transferees:

• Austria, Czech Republic and Slovakia – intra-corporate transferees need to be employed by an enterprise other than a non-profit organisation, otherwise: unbound (meaning the countries reserve the right to impose further restrictions in future)
• Finland – senior personnel need to be employed by an enterprise other than a non-profit organisation
• Hungary – natural persons who have been a partner in an enterprise do not qualify to be transferred as intra-corporate transferees

C: Business visitors for establishment purposes

This category applies to natural persons (including employees and partners) working in a senior position within a UK business who:

• are responsible for setting up an enterprise of the business in an EU member state
• do not offer or provide services or engage in any economic activity other than that which is required for the purposes of the establishment of that enterprise, and
• do not receive remuneration from a source located within the member state that they are visiting

Permitted length of stay

Business visitors for establishment purposes may stay for up to 90 days within any 180-day period.

In Cyprus, you can stay up to 90 days in any 12-month period.

Visa/work permit requirements

Business visitors for establishment purposes do not require a work permit (unless otherwise stated in Annex 21 of the TCA).

Additional requirements

Certain EU member states have imposed conditions on business visitors for establishment purposes.

Requirements listed in the TCA (Annex SERVIN-3) are:

• Austria and Czech Republic – business visitors for establishment purposes need to work for an enterprise other than a non-profit organisation, otherwise: unbound (meaning the countries reserve the right to impose further restrictions in future)
• Slovakia – business visitors for establishment purposes need to work for an enterprise other than a non-profit organisation, otherwise: unbound (meaning the country reserves the right to impose further restrictions in future); work permit required, including economic needs test
• Cyprus – business visitors for establishment purposes need to work for an enterprise other than a non-profit organisation, otherwise: unbound (meaning the country reserves the right to impose further restrictions in future)

D: Contractual service suppliers

This category applies to individuals employed by a business in the UK that:

• does not have an office in any EU member state, and
• has concluded a bona fide contract that requires the temporary presence of its employees to supply services in a member state

Such a contract should not:

• exceed 12 months
• be through an agency for placement and supply services of personnel

On the date of travel, employees should have:

• a university degree (or equivalent qualification)
• been employed for at least one year
• relevant professional qualifications required to carry out such activity in the UK
• at least three years’ professional experience, after reaching the age of majority

Employees should not receive remuneration from a source in the member state they are visiting.

Permitted activities

This applies to legal advisory services, subject to the country-specific practice rights illustrated below.

Permitted length of stay

Contractual service suppliers can stay for up to 12 months or the duration of the contract, whichever is less.

Additional requirements

Each EU member state may impose additional conditions.

The TCA (Annex SERVIN-4) lists the following additional requirements for contractual service suppliers:

• Austria – maximum stay shall be for a cumulative period of no more than six months in any 12-month period or for the duration of the contract, whichever is less
• Czech Republic – maximum stay shall be for a period of not more than 12 consecutive months or for the duration of the contract, whichever is less
• Belgium, Czech Republic, Denmark, Finland, Hungary, Lithuania, Latvia, Malta, Romania, Slovenia and Slovak Republic – contractual service suppliers providing legal advisory services must complete an economic needs test

E: Independent professionals

This category applies to individuals engaged in the supply of a service and established as self-employed in the UK who:

• have not established in the EU
• have concluded a bona fide contract (other than through an agency for placement and supply services of personnel) for a period not exceeding 12 months to supply services to a final consumer in the member state, requiring their presence on a temporary basis, and
• possess, on the date of their application for entry and temporary stay, at least six years' professional experience in the relevant activity, a university degree or a qualification demonstrating knowledge of an equivalent level and the professional qualifications legally required to exercise that activity in the member state

Permitted activities

This applies to legal advisory services, subject to the country-specific practice rights illustrated below.

Permitted length of stay

Independent professionals can stay for up to 12 months or the duration of the contract, whichever is less.

Additional requirements

Each EU member state may impose additional conditions on independent professionals, listed in the TCA as follows:

• Austria – maximum stay shall be for a cumulative period of no more than six months in any 12-month period or for the duration of the contract, whichever is less
• Czech Republic – maximum stay shall be for a period of not more than 12 consecutive months or for the duration of the contract, whichever is less
• Belgium, Bulgaria, Czech Republic, Denmark, Greece, Spain, Finland, Hungary, Italy, Lithuania, Malta, Romania, Slovenia and Slovak Republic – independent professionals providing legal advisory services must complete an economic needs test 

Note on partners of an LLP

Whether partners in a firm will be classed as contractual service suppliers or independent professionals will vary in each member state.

In many member states, partners would not be considered employees of a firm and so might be considered independent professionals.

The counterargument is that, even in countries where this applies, the independent professional provisions would not seem to cover partners within an LLP because, even though they are treated as self-employed for tax purposes, they will not individually be providing services to their clients as the services will be delivered by the LLP in which they are members.

The documents to take with you when travelling to an EU member state will depend on which of the categories above you fall into, as defined by the member state’s domestic regime.

If your activities go beyond those permitted to short-term business visitors, or your stay in a Schengen country will exceed 90 days, then it’s likely you’ll need to apply for a visa or a work permit.

See the country-specific guides above for more details

In addition, you need to travel with a valid UK passport that is:

• valid for at least six months, and
• is less than 10 years old

It’s also advisable to travel with, or at least have access to, the following information on arrival to a European country:

• a return travel ticket or onwards journey out of the country, dated within the maximum 90-day stay period
• evidence of the purpose for the visit (such as a letter of invitation from the firm or other entity the individual is visiting)
• evidence of accommodation in the country you’re visiting
• evidence that you’re able to maintain yourself financially for the duration of the visit
• travel insurance to cover the duration of the visit

Different countries may request business visitors to carry additional documents or to register with the authorities on arrival if you’re not staying in a hotel or guest house.

For more information, consult the UK government’s guidance on travelling to the EU, Switzerland, Norway, Iceland or Liechtenstein for work.

On arrival to an EU country, a UK national may be asked questions by an immigration official. These are likely to be in relation to the duration and purpose of the stay but could include any issue that concerns an immigration official.

The most common questions you’re likely to encounter include:

• how long do you intend to stay in a country?
• where are you staying?
• who are you meeting with?
• what are you intending to do in the country?
• have you visited the country before?

You may be asked to provide evidence to support your responses. It’s important to answer the questions honestly and to be as cooperative as possible with the authorities.

Yes: if you started operating as a frontier worker as defined below by the end of the Brexit transition period, you will continue to enjoy the right to enter and exit the state where you have been working in such capacity.

However, the EU member state you’re operating in might require you to apply for the relevant documentation.

Some countries have imposed a deadline to apply for this documentation.

Definition

Frontier workers are defined under article 9(b) of the UK-EU Withdrawal Agreement (WA) as:

“Union citizens or United Kingdom nationals who pursue an economic activity in accordance with article 45 or 49 of the Treaty on the Functioning of the European Union (TFEU) in one or more states in which they do not reside”.

An individual living in the UK but working in an EU member state would therefore fall under the definition of a frontier worker.

A frontier worker can be employed or self-employed in the state of work but must regularly return to the country where they reside. A frontier worker should be distinguished from a posted worker that is temporarily sent by their employer to work in an EU member state.

Article 10(d) makes it clear that the provisions of the WA relating to citizen’s rights will only apply to frontier workers that have exercised their rights as frontier workers before the end of the transition period and continue to do so thereafter.

The provisions of the WA will therefore not apply to anyone that lives in the UK and begins working in an EU member state from 1 January 2021. Any such arrangement will be governed under the terms of the TCA.

The group of individuals that these provisions of the WA will apply to is therefore likely to be relatively small and ever diminishing.

Rights of frontier workers

Article 24(1) of the WA provides that frontier workers shall enjoy the same rights previously guaranteed under EU law (specifically under article 45 TFEU and Reg. 492/2011) including, among a number of other rights:

• the right not to be discriminated against on grounds of nationality as regards employment, remuneration and other conditions of work and employment
• the right to assistance afforded by the employment offices of the state of work as offered to own nationals
• the right to social and tax advantages

Article 24(3) also provides that frontier workers shall continue to enjoy the right to enter and exit the state of work as provided under article 14. In order to enter or exit the state of work, a frontier worker will require a valid passport or national identity card.

Where a frontier worker has obtained or is required to obtain a valid document under article 26, no entry/exit visa or equivalent formality is required for entry into the state of work (article 14(2) WA).

Where obtaining an article 26 document is optional, it’s likely to be beneficial for frontier workers to obtain a document in order to avoid the need for any further formalities. This is expressed in the advice of several EU member states that have stated that an article 26 document is optional.

For example, Finland states that obtaining a document means “working in Finland and returning to your country of residence will be easier for you”.

It therefore seems sensible to encourage frontier workers to obtain an article 26 document, even where it’s optional.

The second part of article 24(3) WA states that frontier workers “shall retain the rights they enjoyed as workers there, provided they are in one of the circumstances set out in points (a), (b), (c) and (d) of article 7(3) of Directive 2004/38/EC, even where they do not move their residence to the state of work”.

Adopting a common sense approach suggests that article 24(3) WA should be understood to mean that, in addition to a frontier worker who has continued to be employed before and after 1 January 2021, a frontier worker who is no longer employed or self-employed shall continue to enjoy the right to enter and exit (as well as the rights listed in article 24(1)) where the individual:

• is unable to work as a result of an illness or accident
• is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a jobseeker with the relevant employment office
• is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a jobseeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months, or
• embarks on vocational training. Unless they are involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment

This protects a frontier worker in any of the above scenarios from losing their rights as a frontier worker under the WA and allows them to obtain further work in the state of work.

For example, if an individual living in the UK but working in Brussels was made unemployed after being employed for over a year and registered as a jobseeker in Belgium, they would retain the right to enter/exit Belgium under article 14 WA.

This approach appears to be in line with the approach of some member states (see for example, the Danish website link in the table below).

Documents identifying frontier workers’ rights

Article 26 of the WA provides that a member state may require frontier workers to apply for a document certifying that they have such rights.

It’s up to each member state to decide whether they require an article 26 document to evidence an individual’s status as a frontier worker.

Where it’s not a requirement, frontier workers have the right to be issued with such a document and obtain the benefits under article 14(2) WA mentioned above.

The table below summarises whether a document is required under article 26 for each member state and links to a local authority website that provides further details (where they could be located).

Some EU member states have imposed a deadline to apply for an article 26 document.

Additional country-specific information can be found in the UK government’s guidance for UK nationals living in the EU and on frontier workers in EU and EFTA countries.

The situation remains fluid, and solicitors should check for updates to advice provided by each member state.

Where it’s unclear whether a document is needed, solicitors should seek local advice.

The example of Belgium

Although the concept of ‘frontier worker’ does not appear to have a clear-cut definition, Belgian authorities apply the following standard as guidance: ‘frontier worker’ means any person pursuing an activity as an employed or self-employed person in a state and who resides in another state to which that person returns as a rule at least once a week.

The Belgian authorities have confirmed that at least 45 days per year spent in Belgium would in general suffice as a standard, but it’s unclear what the position would be for less than this.

UK nationals can continue operating in the country as frontier workers, provided they:

• satisfied the criteria above before the end of the transition period (31 December 2020), and
• filed an application for an N-card at the Belgian commune where their office is located before 31 December 2021

Individuals who are not frontier workers are allowed to stay visa free in Belgium for a maximum of 90 days within a 180-day period if they fall within the category of ‘short-term business visitor’ described above.

However, at the border they would need to provide information, including:

• the purpose of travel (business trip)
• accommodation
• sufficient means of subsistence to cover the costs of the stay and return

The EU Posted Worker Directive refers to EU legislation in place to ensure that “posted workers” (those working temporarily in EU member states) have the same level of social protection as domestic workers.

Its application extends to EU-based law firms who post workers to the territory of another EU country.

In some countries, it also applies to postings from non-EU countries including the UK.

What is the compliance requirement?

The obligation is on the sending firm to:

• make a pre-travel declaration to the responsible national authorities containing relevant information necessary in order to allow enforcement at the place of work
• designate a liaison person for the authorities in the host member state in which services are to be provided
• retain and make available copies of all relevant documentation e.g. employment contracts, timesheets, payslips etc. 

There may also be an obligation to provide a translation of the relevant documentation into the official language of the host member state or into another language accepted by the host member state, on request.

Finally, there is an obligation to provide such documents at the request of the authorities within a reasonable period of time

What is the impact of non-compliance?

Both the sending and receiving firm (or the firm’s client) may be at risk of penalties resulting from non-compliance.

Fines are generally imposed per infringement. Enforcement and audit activity varies by member state.

Firms should also consider the reputational risk of non-compliance, which is arguably more significant.

Are there any exemptions?

The rules vary by member state so it’s important to review the EU PWD rules specific to the host country.

Some countries have exemptions for:

• non-EU nationals
• non-EU employers
• self-employed individuals
• performance of certain non-client facing activity (such as internal training or conferences)

Which countries require a PWD notification from non-EU (UK) employers?

At the present time, the following European countries require a PWD notification to be filed by a non-EU employer posting a non-EU national:

• Belgium
• Bulgaria
• Croatia
• Cyprus
• Czech Republic
• Denmark
• Estonia
• Finland
• France
• Germany*
• Greece
• Hungary
• Italy
• Latvia
• Lithuania
• Luxembourg
• Poland
• Portugal
• Spain
• Sweden
• Switzerland**

*In relation to certain employers only.

**In relation to UK employers posting employees to Switzerland in specific circumstances.

Permitted activities and length of stay

For EU citizens, travel to the EU is made easier by virtue of free movement across all member states.

Under the principles of free movement, EU nationals may reside permanently in another EU member state as long as they continue to abide by the obligations placed upon them by EU law.

There are largely no limits for EU nationals in relation to the business activities they can carry out in another EU member state, apart from exceptional limitations based on considerations of:

• public security
• public policy
• public health grounds, and
• public sector employment

There may be limits upon EU nationals’ ability to provide legal services due to the recognition of professional qualifications and home title practice.

Where the EU national holds a UK professional qualification, the requirements are more complex as lawyers are no longer able to rely upon European directives harmonising practice rights and recognition of these qualifications. See what are my practising rights?

As EU citizens may carry out any business activity in another EU member state (subject to limited exceptions), they can charge for legal advice given in the EU, as long as they’re legally permitted to provide this advice.

For EU citizens holding a UK professional qualification, the ability to provide legal advice would be subject to the individual EU member state’s regulations on home title practice and recognition of professional qualifications. See what are my practising rights?

Documents for business travel

EU citizens will only need a valid EU passport/identity card to travel to any EU member state under the free movement provisions and will not be asked to show a work permit or visa at the border.

EU citizens may be required to report their presence/register their residence once situated in an EU member state, although only an EU passport should be required to do so.

Questions at the border

EU nationals should encounter no questioning at any EU member state border.

Although it’s possible that entrants may be asked about the purpose of their visit, as all EU citizens hold the right to freely live and work in any EU member state, this response can simply be ‘business’.

Your practising rights and registration requirements depend on the member state where you’re providing services.

See our country-by-country guide on EU mobility practice rights

While, under the TCA, UK qualified lawyers will in principle be able to supply legal services in the EU using their home title in areas such as UK law and public international law, this right is qualified by ‘non-conforming measures’ which EU member state has listed in the TCA.

Non-conforming measures can place additional requirements or even effectively withdraw the ability to practise in certain member states.

Advance planning will need to be carried out in relation to the relevant EU member state’s regime for the provision of legal services and the recognition of third-country legal qualifications to ensure compliance.

The practising rights and restrictions described above do not apply to solicitors who temporarily work remotely from an EU member state, carrying out the same activities as if they were 'working from home' in the UK and advising UK-based clients only.

We're not currently aware of any regulation affecting the ability of solicitors to work remotely from the EU, although we're constantly monitoring the situation and will update this guidance if needed.

However, solicitors intending to work remotely from the EU should:

• check with their insurers that their arrangements cover remote work from an EU member state
• clarify their immigration status with respect to their right to reside in an EU member state, even temporarily. Non-EU citizens will be asked about the reason for their visit at the border (see part one above). Solicitors who are EU citizens will not be questioned at the border and therefore will have no issues in this respect
• consider the possible impact on tax (income tax, VAT and social security) and the risk of creating a permanent establishment through temporary presence – this depends on how many days a lawyer spends in the EU (see part three below)

Where the EU national holds a UK professional qualification only, they are no longer able to rely upon European directives harmonising practice rights and recognition of these qualifications.

Practising rights for EU citizens holding an English solicitors’ qualification will be the same as above, unless they’re also qualified in the legal profession of an EU member state – in which case, they will still be able to benefit from the EU directives.

Solicitors travelling to the EU on business should consider the impact on:

• social security
• value added tax (VAT)
• the risk of creating a permanent establishment through temporary presence

Why do I need to consider social security?

Every European country levies social security contributions on earnings with an underlying principle of 'pay where you work'.

Whilst there is a basic premise within the EU that individuals should only pay social security in one territory, some planning and administration is needed to avoid duplicate social security costs which, unlike income tax, cannot be offset against each other.

Social contributions in many European countries are significantly more expensive than UK National Insurance, for both individuals and employers. With planning, this additional cost can be avoided.

Failure to pay the correct social security contributions, or provide sufficient proof of exemption, can lead to penalties and immigration sanctions, both personally and for firms.

This is an area where there has traditionally been a low rate of administrative compliance, particularly for shorter business trips, but with Brexit and the increasing enforcement of the EU Posted Worker Directive, there is significantly increased scrutiny at borders and during employer audits.

Technically, social security compliance administration is required before travel. However, HM Revenue and Customs (HMRC) will issue post-dated certificates without dispute. Other countries' authorities are less forgiving so may levy charges immediately.

Where should I pay social security?

You will ordinarily pay social security contributions on earnings in the country where you work. In the UK, this is called National Insurance.

By application, this treatment can be extended to cross-border business trips, secondments and temporary remote working of up to 24 months to EU countries (‘posted worker’ pre-Brexit or ‘detached worker’ post-Brexit).

For secondments or remote working arrangements longer than 24 months, the host country social security system will apply, and not National Insurance. This also applies if you live in one country and normally work in another (cross-border worker).

If you work in two or more EU countries (or the UK) for at least 5% of your time over a protracted period, you’re considered a ‘multistate worker’ and special rules apply which require additional analysis. This treatment is not time limited but would need to be reassessed if the working pattern changes. This can be complicated so you may wish to seek professional assistance.

How has Brexit impacted social security?

Social security coordination between the UK and the EU from 1 January 2021 onwards is governed by a protocol to the TCA.

Rules have remained largely unchanged by Brexit, however there are some key differences between the treatment for cross-border moves initiated before 1 January 2021 (covered by the WA) and travel on or after this date (under the TCA).

The major change from 1 January 2021 is that detached workers may only remain in their home country social security system for up to a maximum of 24 months, with no extensions allowed – previously, this was extendible up to five years.

Detached worker arrangements that began before 1 January 2021 are covered by the WA, which allows the prior rules to apply as long as the arrangement remains uninterrupted, including applying for extensions to the posted worker rules up to the previous five-year limit.

Individual EU states may choose to opt out of the social security rules for detached workers; however, they have all chosen to apply the rules from the start.

Countries need only give one month's notice to opt out and, if this occurs, a duplicate social security liability may apply.

The coordination rules for multistate workers apply automatically and individual countries may not opt out. These rules are essentially unchanged by Brexit.

Different rules now apply for both detached workers and multistate workers in European Free Trade Agreement (EFTA) countries (Norway, Iceland, Switzerland and Liechtenstein) as these countries are not party to the TCA.

The UK has bilateral social security agreements with Norway, Iceland and Switzerland, although these differ from the EU agreement, so specific guidance should be sought.

There is currently no social security treaty between the UK and Liechtenstein, meaning duplicate social security liabilities may arise.

What do I need to do – employee or company director?

Your employer is responsible for withholding social security contributions from you and remitting this to the government authorities.

You should notify HR or payroll before travelling to the EU, EEA or Switzerland so that they can obtain an A1 certificate for you to avoid paying that country's social security as well as National Insurance.

If you’re planning to work in two or more European countries and/or the UK for at least 5% of your time, or plan to work outside of the UK for more than 24 months, give your employer early notice, as this may require some detailed planning to ensure you meet your compliance obligations in both countries and avoid duplicate contributions.

What do I need to do – self-employed?

You’re personally responsible for your social security compliance.

If you’re making a one-off trip to an EU/EEA country, you must apply for an A1 certificate. For those based in the UK, this application is made to HMRC with form CA3837.

You may also wish to apply for corresponding healthcare coverage with form CA8454.

If you expect to work in two or more EU/EEA countries and/or the UK for at least 5% of your time, you’ll need to provide information to HMRC to determine which country's social security contributions you must pay with form CA8421.

If you have any questions or concerns about where, when or how you should pay social security for employees, engage a suitably qualified accountant or tax adviser.

What do I need to do – employer?

You’re responsible for your employees' social security compliance. For firms operating as companies, this includes directors.

Before sending any employee to visit or work in the EU, you must complete an employer declaration CA3821.

For each individual employee trip, or for a group of trips over a period of less than 24 months, complete form CA3822. HMRC will issue form A1 which should be given to the employee for presentation to the overseas authorities. A copy should be kept for payroll records.

If an employee is expected to work in two or more EU/EEA countries and/or the UK for at least 5% of their time, you will need to provide information to HMRC to determine which country's social security contributions you must pay with form CA8421.

If an employee requests to work in another country for an indefinite period, or for longer than 24 months, they will become liable to that country's social security system from day one. If you have an office in that country you may wish to consider transferring their employment, otherwise you will need to register with the social security authorities to remit contributions.

If you have any questions or concerns about where, when or how you should pay social security for employees, engage a suitably qualified accountant or tax adviser.

Following Brexit, the EU is now considered a 'third country' for VAT purposes.

Consequently, there are broadly four possible scenarios to be concerned with:

1. UK-based solicitor, supplying to UK-based clients – within the scope of UK VAT
2. UK-based solicitor, supplying to EU-based clients – outside the scope of UK VAT
3. EU-based solicitor, supplying to UK-based clients – outside the scope of UK VAT, and
4. EU-based solicitor, supplying to EU-based clients – outside the scope of UK VAT

Solicitors travelling to the EU and advising EU-based clients

Where a solicitor travels to the EU and supplies to EU-based clients, the supply will be considered to be outside the scope of UK VAT regardless of whether the solicitor is considered to be based in the UK or not (whether the facts indicate scenario two or four).

Solicitors travelling to the EU and advising UK-based clients

Where a solicitor travels to the EU and supplies to UK-based clients, the supply may or may not be within the scope of UK VAT, depending on whether the solicitor is considered to belong in the UK or not (whether the facts indicate one or three).

This depends primarily upon whether the solicitor's travel to the EU may be considered to establish a fixed establishment in the EU:

• if the advice is being provided from an EU establishment to a UK-based client, the treatment will depend on the EU member state’s local VAT law
• if the advice is not being provided from an overseas establishment (for example, where the overseas presence is temporary), the services would be treated as having been supplied from and received in the UK, and would therefore be subject to UK VAT, unless a specific exemption applies

As before Brexit, the key consideration remains whether by providing the services from an overseas location, an overseas fixed establishment of a business is created, which is most directly concerned with the supply of those services. This is a nuanced position and the specific criteria for creating a fixed establishment will vary by territory.

Careful consideration should be given as to whether the presence of a solicitor providing and charging for a service is sufficient to create a fixed establishment that would likely give rise to a requirement to register for VAT (subject to registration revenue thresholds) and charge local VAT in the relevant territory.

Further consideration must be given to whether such overseas fixed establishment is the establishment most directly concerned with the supply of services. In other words, even if a fixed establishment is established overseas, there may be no implications as to VAT place of supply if the UK establishment is most closely connected with the supply of the solicitor's services (see section 9 of the Value Added Tax Act 1994).

In the UK, HMRC's guidance states that a fixed establishment is an establishment other than the business establishment (the principal establishment of the entity) which has the human and technical resource necessary for providing services permanently established. Whilst not always consistent with the treatment in each EU territory, the principles are ultimately derived from the same EU VAT law.

Based on UK principles, to the extent a solicitor were to travel overseas on a temporary basis only, this would be unlikely to create a fixed establishment in that country. However, if this was done on a consistent basis, the position could change. As noted above, this position can be highly nuanced and can vary between territories. Solicitors should seek advice on a case by case basis as to the likelihood of creating an overseas establishment.

If overseas travel is not sufficient to create a fixed establishment in the overseas territories, then the services would be treated as having been supplied from the UK.

Working remotely from another country involves the risk that the firm establishes a permanent establishment in that country, making the firm liable to pay taxes there.

This is most likely with senior individuals, such as partners, as they are typically agents of the firm and conclude contracts, like engagement letters, on behalf of the firm.

Constraints on partners’ authority while outside the UK may be prudent. This may be viable for holidays, but not necessarily for long-term remote working arrangements.

This risk may also be relevant where partners hold personal appointments such as acting as charity trustees, directors, executors or trustees. Where they are sole role holders, this increases the risk that the organisation (for example, the charity) is imported into the other country, which may trigger tax liabilities.

There’s also a general risk that if the management and control of the firm is undertaken outside the UK, taxes may arise in the county where the firm is managed. For example, if the managing partner and senior partner together run the firm and both work remotely from second homes in a foreign country.

The list below addresses the points that a firm should consider when assessing whether a partner (LLP member, director or general partner), employee or consultant  can or should work from outside the UK.

This note assumes individuals will be working from an EU country, but many of these considerations apply equally to working from countries outside the UK and EU.

Agree limits for working abroad

Identify and agree what an individual can/should do while working in another country. This may be agreed be on a case-by-case basis or set out in a policy.

This should consider the full range of potential eventualities, from answering occasional emails/calls via a mobile device while on a holiday to working full time remotely from a location outside the UK.

Update the firm’s risk register to reflect the firm’s range of potential arrangements and controls in place to manage associated risks, including continued compliance with the SRA Standards and Regulations.

Consider the implications of flexible working

If a formal flexible working arrangement is agreed, consider if this is a formal variation of that individual’s employment contract (or similar).

Consider the employment law (or similar) implications if the firm may later wish to vary that arrangement.

Is the firm prepared to create a precedent which may be replicated for future individuals?

Identify the rights an individual will need to work remotely

What rights does the individual need in order to work remotely from the other country? This includes practising rights (for lawyers) and/or immigration rights.

Do they have these rights? If not, can/should they adapt their plans to work within the constraints?

For example, restricting activities to business development activities or provision of advice on the laws of England and Wales may be acceptable, but advising on EU laws may not.

Can the firm implement systems and processes to ensure individuals are respecting these constraints in practice?

For example, reviewing time recording records for the relevant period to ensure client chargeable time is not recorded.

Consider whether insurance arrangements are affected

Are the firm’s insurance arrangements affected if individuals work outside the UK?

Consider all insurances, including professional indemnity, life insurance and travel insurance.

Insurance companies may argue that remote working from outside the UK is different from temporary work undertaken while on business trips or holidays.

Consider government travel advice

Has travel to the country been advised against by the foreign office or government guidelines?

If so, it’s unlikely to be appropriate for the firm to ask or require an individual to travel to or work from that location.

By contrast, if the individual initiates a request to work from a different country, can/should the firm support/endorse an individual’s preference to work from that location? Is travel insurance affected?

Identify the impact on client and firm needs

Will differences in local working hours or time-zones undermine the individual’s ability to meet client or firms needs and/or supervise and be supervised?

This may be manageable for short periods like holidays, but undesirable for long term remote working arrangements.

What contingency plans are in place to manage new risks? Risks may be heightened if the individual has key responsibilities, such as a compliance officer or money laundering office role.

Consider need for vaccinations or health certificates

What vaccinations or health certificates are needed for the individual to travel to the other country? Do they have these?

To what extent will the firm support the individual in securing and/or paying for these (where necessary)?

Consider need for quarantine or testing

Might quarantine or testing be needed when the individual returns to the UK? If so, will this disrupt the firm’s business? How will the firm manage this?

To what extent will the firm meet the costs of private testing and/or quarantine hotels, where necessary?

Likewise, what contingency arrangements would be needed if an individual had to remain in a country for longer than planned due to local lockdowns?

Identify cybersecurity concerns

Are there any information security or cybersecurity concerns? This may be general concerns, such as access to secure and reliable wifi, or more fundamental concerns such as information security in certain jurisdictions.

Can the firm be sure that the individual’s proposed working arrangements will not undermine the firm’s systems and processes to protect client confidential information?

One common example is the risk that border control agents may request or require individual to unlock and review content on mobile and IT devices as part of immigration checks. This risk may be irrelevant if all confidential data is stored on document management systems which are not accessible until the individual logs-in.

Consider the firm’s data policies

Consider how the firm holds and processes data. Can data be transferred to and from the individual if they work outside the UK?

Does the firm’s data protection and privacy policies anticipate data moving to and from the locations from which individuals may work?

Identify likely changes to costs

Will costs increase as a result of individuals working outside the UK? For example, data roaming charges may be palatable during short holiday breaks, but unacceptable if an Individual relocates to a different country.

Review the firm’s IT policies to make sure it’s clear how IT can and should be used. If individuals meet the cost of personal usage, warn them about the scope for increased expense.

Consider the firm’s tax risks

Consider the tax risks for the firm if an Individual works from another country. This may include local taxes/social security (for the Individual and/or the firm on the country in which work is undertaken).

Can these risks be managed by managing the type of work undertaken or the days spent in the other country?

Identify whether the firm’s structure is affected

Does the individual’s new working arrangements affect the firm’s structure?

This is most likely to be relevant when partners of international firms work from outside the UK on a longer-term basis, and where partners have a ‘home’ jurisdiction under the firm’s constitution (including for profit allocation purposes).