Can Frontier Workers ease the candidate shortage?

With labour shortages continuing to affect many industries, and Christmas on the horizon, recruiters should consider whether Frontier Workers could help them to fill vacancies.

Who is a Frontier Worker?
Broadly speaking, a Frontier Worker is an EEA or Swiss national who comes to the UK for work but whose main place of residence is outside of the UK.

As an example, a French national who usually lives in Paris but has come to the UK over the last few years to work in retail at Christmas, after which he returns to his home in Paris, may be eligible for a Frontier Worker Permit.

Frontier Worker Permits became mandatory for anyone seeking to enter in this category from 1 July 2021.

What is a Frontier Worker Permit and how do you get one?
In order to be eligible for a Frontier Worker Permit, an individual must be:

• An EEA or Swiss national
• Not primarily resident in the UK. This will usually mean they must have been present in the UK for less than 180 days in any rolling 12-month period from 1 January 2020 to the date on which their application is made. Alternatively, the individual must have returned to their country of residence either once in every six-month period or twice in every 12-month period. Note that even if this requirement is not met, a Frontier Worker Permit may still be granted if the individual has been prevented from returning home due to permitted “exceptional reasons”.
• Able to show they worked in the UK before 31 December 2020. In other words, they must have set up their frontier working pattern by no later than the end of last year. They can be employed or self-employed, but in both cases the work carried out must be “genuine and effective” and not marginal and ancillary to their lifestyle as a whole whilst in the UK. There are specific tests that must be met and detailed guidance as to what sort of evidence will satisfy the Home Office on these points.
• Able to show they have continued working in the UK at least once every 12 months since they started working here. This will be particularly important for renewals and maintaining Frontier Worker status. Specific exemptions to this rule may apply, depending on the circumstances.
• They must meet the general suitability criteria.  This means applications can be refused, for example, if the individual is a threat to public security or subject to a deportation order.

Benefits of a Frontier Worker Permit
The application is free and does not require an employer to hold a sponsor licence (unlike the work permit regime). Once granted, the Frontier Worker Permit provides proof of an individual’s right to work and right to rent in the UK. Frontier Workers are also able to access healthcare, benefits and services according to the same rules that applied before Brexit.

Importantly, Frontier Workers can be either employed or self-employed in the UK. Under this permit, Frontier Workers can change jobs or move from being employed to self-employed in the UK without needing to tell the Home Office.

There are no minimum hours, no minimum salary and no minimum skill level required in order for someone to obtain a Frontier Worker Permit. This means that it can apply to a whole host of different levels of individuals, from HGV Drivers to Board level directors. Additionally, there is no restriction on employment businesses supplying Frontier Workers to work for end clients.

Frontier Worker Permits will usually last for five years initially (although a two-year permit can be granted in some circumstances). However, at the end of their permit, individuals can renew their Frontier Worker status (provided they meet the eligibility criteria that apply at the time).

How can Frontier Workers help ease the candidate shortage?
Frontier Worker Permits are particularly relevant to seasonal workers from EEA countries.

For example, a Hungarian national who lives in Hungary for most of the year but who has come to the UK during “peak” every year between 2017 – 2020 to work as a driver, is likely to be eligible for a Frontier Worker Permit, subject to meeting the qualifying criteria. For example, she would usually need to show that she has worked in the UK at least once during 2020 and then at least once in every rolling 12 month period prior to her application date. However, even if she was unable to show this, for example because of covid, she might still be able to obtain a Frontier Worker Permit.

Whilst this clearly won’t be a silver bullet to address all of the current issues as a result of the end of free movement, this might present a solution of sorts for some businesses.

Recruiters should consider whether there are any EEA nationals on their books who may be eligible to apply for a Frontier Worker Permit, including any individuals who worked on assignments in the UK during the festive period last year (2020) and subsequently returned to their country of residence. Such individuals may be able to make an application for a Frontier Worker Permit now which would allow them to return to the UK to work in the lead-up to Christmas this year (and subsequent years).

It is important that individuals make their applications as soon as possible; although there is no deadline for Frontier Worker Permit applications, the eligibility criteria mean that the longer individuals wait post-Brexit to make their applications, the less likely they will be able to meet the criteria and make a successful application.

Recruiters do, however, need to be aware that in many cases it is a criminal offence to provide immigration advice without having the necessary qualifications, so whilst you can point candidates towards Government guidance or send them links to relevant websites, actually advising them, interpreting the Guidance or assisting them with their Permit application could, depending on the circumstances, potentially land the business and recruiters individually in hot water.

This article originally appeared on www.brabners.com. If you would like detailed advice on this issue or how the Frontier Worker Permit might apply to your business model, please contact Brabners Business Immigration Team.