YOUR TRAVEL AND LEISURE LAW TEAM

Work Permits & Brexit – Where Does The Tour Begin?

The good news is that the COVID-19 pandemic is no longer centre stage when it comes to the day-to-day difficulties faced by the travel industry.  The bad news is that eventually we need to turn our attention back to our old foe, Brexit.  In this article, our Senior Associate, Nick Parkinson explores some thorny issues in relation to work permits – specifically the right for UK workers to enter and stay in the EU when accompanying a tour!

Work Permits and Brexit

Freedom of Movement Is No More

Whilst the UK was a member of the EU, UK citizens were able to move freely between the UK and other EU countries for business or work purposes – no questions asked.  Post-Brexit, that is no longer the case, and this subsequently leads to travel companies asking the following question….

Do My Workers Need Work Permits to Run Tours In The EU?

Firstly, my assumption is that the relevant workers only have a UK passport.  If they have, or are entitled, to an EU passport (e.g. through Irish heritage), problem solved!  For those left stranded with a UK only passport (blue or otherwise), the situation is not so simple! 

Your workers may qualify as ‘short term business visitors’ under the ‘EU-UK Trade and Cooperation Agreement’ (TACA).  This means that they are entitled to enter EU countries without a work permit, economic needs test or any other equivalent procedures.  There are, however, a number of limitations.  In particular:

  • The purpose of their stay in the EU must be for a ‘permitted activity’,
  • They are only entitled to stay for a period of up to 90 days in any six-month period,
  • There are exceptions, depending on which EU country they are travelling to/through.

So which permitted activities will apply here?

Permitted Activity – accompanying a tour

For UK companies running tours in EU countries, your workers should be entitled to enter and stay in the EU provided they can be described as ‘tour and travel agents, tour guides or tour operators… accompanying a tour that has begun in the UK’.

At first blush, that seems very helpful for UK travel companies, and fairly straight forward.  However, on closer examination, there are a few unanswered questions….

The Grey Areas

The simplest example to apply here would be where a coach departs from, say Glasgow, to undertake a tour of WW2 sites across the UK and France.  In this example, the tour clearly began in the UK…. so any workers accompanying that tour do not need to worry about work permits (subject to limitations A and C above).  Black and white.  But what about the following examples:

  • As above, but the coach trip from Glasgow to Calais does not include any stops for tourism, the group were simply transported to France. The trip was marketed as a ‘French WW2 Sites Tour’, aimed at UK travellers.  Did this tour begin in the UK, or in France?  Does it make a difference if the tour leader points out the White Cliffs of Dover along the way?
  • The travellers depart by plane from Manchester to Paris. Your (UK based) tour guide collects the travellers from Paris in a coach.  So in this example your workers were not accompanying the tour group on their journey to France, if that matters.  Either way, did this tour begin in France or the UK?

The Likely Outcome?

Unfortunately, there is currently no guidance from the UK authorities or the EU Commissions which can shed any light on whether or not your workers would qualify as ‘short term business visitors’ in any of the above examples!  It is also difficult to say whether the objective of the TACA was such that these categories ought to be interpreted broadly, to enable tours to proceed between the UK and EU more freely, or whether they ought to be interpreted more restrictively, perhaps to preserve or create opportunities for local tour guides.

Where Does That Leave Us?

Unless and until we receive guidance from the UK or EU authorities, or perhaps a legal challenge is made by someone who has been refused entry to the UK or EU for want of work permits, these questions are likely to remain in the ‘grey area’.  In the meantime, that puts both UK and EU travel companies in the invidious situation of potentially having tours stopped in transit where border guards, rightly or wrongly, take the view that certain workers are not entitled to cross the UK/EU border without a work permit. 

In practice, it may be that any monitoring or enforcement of these specific requirements is ‘thin on the ground’ – but even if that is so, that will hardly be reassuring to workers, or travel companies, as they hold their breath every time they cross the border!

Are You Affected By Any Brexit Issues?

This issue may only affect a small percentage of the travel industry, i.e. UK nationals that intend to stay in the EU for less than 90 days in any 6 month period.  There are many other challenges that Brexit has thrust upon the travel industry, such as:

  • Understanding the process to obtain work permits in EU countries;
  • The loss of ‘mutual recognition’ of insolvency protection for UK tour operators trading in the EU, and EU operators trading in the UK;
  • Additional obligations on UK travel agents dealing with EU tour operators;
  • Restrictions on taking goods/equipment between the UK and EU (e.g. bicycles); and
  • Restrictions on bus or coach trips between the UK and EU (the Interbus Agreement).

Published 21st September 2022

If your travel business is affected by any Brexit related issues, feel free to get in touch with the author. 

email nick@travlaw.co.uk

This article was originally published on: 21 September 2022

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