BE (good)INFORMED ABOUT THE CURRENT BREXIT (as a visitor)

Do EU citizens need to apply for a visit visa before travelling to the UK?

No. EU visitors can fly to the UK and ask for permission to enter the country as visitors at the border.

The Home Office publishes a list of “visa nationals” in the Immigration Rules at Appendix Visitor: visa national list. European countries are not on the visa national list. Only citizens of countries on the visa national list need to apply for a visit visa in advance of travel. Citizens of all other countries can just turn up at the UK border and seek entry as a visitor, either by going through the passport eGates or by speaking to a border officer at a desk.

Who counts as a “visitor” and what are the restrictions on them?

The basic definition is:

This route is for a person who wants to visit the UK for a temporary period, (usually for up to 6 months), for purposes such as tourism, visiting friends or family, carrying out a business activity, or undertaking a short course of study.

Immigration Rules Appendix V: Visitor

There are restrictions on what a person can and can’t do as a visitor. The standard conditions endorsed on a visitor’s entry stamp are “leave to enter for six months, employment and recourse to public funds prohibited” (or wording to that effect).

The same conditions apply if a visitor enters via the eGates without receiving a stamp.

Looking beyond the passport stamp, the Home Office publishes a list of prohibited activities at paragraph V4.4. of Appendix V: Visitor.

 Visitors are prohibited from undertaking these activities unless expressly permitted by another appendix:

Work

Study

Marriage/civil partnership

Medical treatment

An intention to engage in prohibited activities is enough to be refused entry to the UK. This is an important difference between the situation under EU free movement rules and the situation now.

Those wanting to do any of the above prohibited activities can apply in advance for a visa to allow them to do so, for example a Skilled Worker visa, marriage visit visa or a private medical treatment visit visa. These types of visa cannot be obtained at the border; an application must be submitted via the government website.

This all sounds very complicated, I just want to go backpacking around the Highlands.

Before we go any further, let me emphasise that the vast majority of tourists arriving in the UK from European Union countries will have no issues. Most will be able to go through the eGates and not even speak to a border officer. This article is not intended to scare people or to put off tourists. EU citizens arriving to do a bit of travel or tourism should have no trouble.

With all of the stories in the press lately, though, it is important to be aware of what a visit visa entails and what the limitations are — particularly when it comes to work-related activities.

What is a visitor permitted to do?

Appendix Visitor: Permitted Activities sets out all of the things a visitor is allowed to do. These permitted activities introduce exceptions to the broad list of prohibited activities. The permitted activities include:

tourism and leisure

visiting friends and family

school exchanges and visits

volunteering for up to 30 days with a registered charity

attend meetings, conferences, seminars, interviews

negotiate and sign deals and contracts

site visits and inspections

intra-corporate activities

interpreting and translation work as an employee of an overseas enterprise

tour group work

journalism

scientific and academic research

preaching and pastoral work by religious workers

At this point you may be saying to yourself: “wait, so some types of work are actually allowed?” That’s right: all work is prohibited except that which is expressly permitted. The rules say:

Visitors cannot work in the UK unless this is expressly allowed under the permitted activities set out in Appendix Visitor: Permitted Activities.

Immigration Rules

Appendix V: Visitor

Permitted work activity is one of the murkiest areas of the visitor rules and guidance. I am probably not the only lawyer left feeling deeply uneasy when asked to interpret it because there are all sorts of income and work arrangements not expressly addressed. Interpretation of what is or is not permitted is generally going to turn on an individual border officer’s subjective interpretation of the visitor’s intention (see next section). This introduces a risk of refusal even if the would-be visitor believes their intended activities fall within the ambit of the permitted activities.

Is job-seeking allowed?

“Work” is defined as

(i) taking employment in the UK; or

(ii) doing work for an organisation or business in the UK; or

(iii) establishing or running a business as a self-employed person; or

(iv) doing a work placement or internship; or

(v) direct selling to the public; or

(vi) providing goods and services

Paragraph V4.4.(a) of Appendix V: Visitor

Job-seeking/searching is not caught by this prohibition.

Visitors are allowed to look for future employment in the UK — but it is critical that they understand the limitations. Visitors cannot, under any circumstances, begin work if they find a job. If they manage to secure an offer of future employment they must leave the UK and apply for the appropriate entry clearance from abroad, likely under the Skilled Worker visa route.

Young adults arriving from Europe with no return flight and a stated intention to search for low-skilled work with no prospect of sponsorship are unlikely to be seen as genuine visitors and highly likely to be refused entry.

What about job interviews?

Under paragraph PA4. of Appendix Visitor: Permitted Activities, a visitor may attend “interviews”. The rule does not specify what type of interview is permitted, but a plain English interpretation suggests that a job interview is fine. A job interview is not work.

Is remote working permitted?

Yes. Although not covered in any of the Immigration Rules, Home Office guidance says:

Visitors are permitted to undertake activities relating to their employment overseas remotely whilst they are in the UK, such as responding to emails or answering phone calls. However, you should check that the applicant’s main purpose of coming to the UK is to undertake a permitted activity, rather than to specifically work remotely from the UK. Where the applicant indicates that they intend to spend a large proportion of their time in the UK and will be doing some remote working, you should ensure that they are genuinely employed overseas and are not seeking to work in the UK. You must be satisfied that the applicant will not live in the UK for extended periods through frequent or successive visits.

How does a border officer decide if a visitor should be allowed in?

The border officer must be satisfied that the person is a genuine visitor and will leave the UK at the end of their visit. The officer will assess the visitor’s credibility and intentions on the balance of probabilities. In other words, the officer must ask themselves, is it more likely than not that the person is a genuine visitor? This is a subjective decision, and whilst there is a 76-page guidance document available, a lot of the guidance is vague. This can lead to variance in border decision-making.

Some of the most important factors an officer will consider are:

What is the main reason for visiting the UK?

Immigration history, including previous visa refusals, and duration and frequency of previous visits to the UK.

Are frequent and successive visits being used to make the UK the main home or place of work or study? Officers will often examine the cumulative time a person has spent in the UK in the past 12 months to aid their decision-making.

Personal and economic ties to country of residence. Does the person have a job, family, or home to go back to?

Is there a return flight booked?

Does the person have enough funds to cover the costs of their visit?

This is not an exhaustive list. Border officers have a lot of power and should generally assess all of an applicant’s circumstances holistically to reach a decision.

Bron: Free Movement May 24th 2021.