The Martini Mindset: Immigration Considerations
October 5, 2020
With the ‘Martini Mindset’ articles over the last two weeks, my colleague Simon Horsfield has set out a tantalising premise about how remote working can be extended to enable a lifestyle where you could work any time, any place, anywhere – sipping a Martini in a bar in Barcelona, enjoying a Bintang on a beach in Bali, or a coffee in Central Park, New York City – all whilst continuing to work for your UK employer via your laptop or mobile device.
Until now this lifestyle has been the exclusive domain of the ‘digital nomad’ who is more than likely an IT consultant, self-employed contractor, or social media blogger and is able to work flexibly whilst hopping from country to country. But with the rise in remote working driven by COVID-19, this lifestyle is being considered by more traditionally employed workers.
I am a specialist immigration solicitor, and I have been looking at the feasibility of this lifestyle from an immigration law perspective. Immigration is governed separately by each host country, and most countries have drafted their immigration laws with no thought to the concept of remote working. Immigration laws almost universally consider work to be inextricably linked to the location of the worker, not the employer. This means that the action of working for an employer based outside of the jurisdiction is still considered as work under immigration law, if the work is conducted within the foreign jurisdiction.
Therefore, if the worker is on a tourist visa, as is most likely the case, the act of sitting in a café working remotely for a few hours a day could be viewed as working and potentially a breach of the conditions of your stay.
This is a risk that ‘digital nomads’ are willing to take, and most authorities will turn a blind eye to this as tourists are bringing in much needed cash. However, if the remote worker is contracted to an international company rather than being a self-employed digital nomad, the risk of such a technical breach can extend beyond the worker to the employer. What if the employer has operations in the host country? Would the remote worker come under such arrangements and require official sponsorship? Would discovery of the remote worker lead to a fine or other sanction on the employer for illegal working? Where fines for illegal working can be large, or where a loss of licence can impact other workers legitimately operating in that jurisdiction, the risks are far from trivial, and the local authorities may well be less willing to turn a blind eye. It is therefore essential for companies and staff who wish to work this way to plan in advance and take advice from a specialist immigration lawyer.
The UK’s immigration laws do not specifically cater for the possibility of non-UK nationals entering as remote workers, and there is no specific category for this type of work. European nationals working remotely in the UK for EU companies would have been covered by European Free Movement laws up to now, so perhaps there was no need for such a separate visa. However, with the end of Free Movement due to Brexit, and with the wider international community in mind who were never covered by Free Movement, it is time to consider this option. The Home Office recently announced the ‘Frontier Worker’ permit to preserve the rights of EU nationals who work in the UK (employed or self-employed) but may not be primarily resident in the UK. Could this be used to give some sort of status to EU nationals who are working remotely in the UK for a non-UK based employer? Perhaps it could also cover an EU national who is working remotely from outside of the UK for a UK based employer? The regulations potentially offer a wide interpretation but are currently untested. The major problem with this permit is that it will only apply to those EU nationals who begin working in the UK prior to 31 December 2020, and not any future workers who begin working from 1 January 2021 onwards, and this restriction means the ‘Frontier Worker’ permit will only ever apply to a small and ever diminishing class of persons.
For all others seeking to come to the UK as remote workers, the best the UK has at present is the Business Visitor route which includes ‘permitted activities’ for visitors such as attending meetings, conferences, seminars, interviews, to negotiate and sign deals and contracts, and be briefed on the requirements of a UK based customer. However, there is a caveat in that the rules state that this is provided that ‘any work for the customer is done outside of the UK.’ The activities are more generous for intra-corporate activities, which permit an employee of an overseas based company to advise and consult, trouble-shoot, provide training, share skills and knowledge on a specific internal project with UK employees of the same corporate group. However, there is still a caveat that permits this intracorporate activity ‘provided no work is carried out directly with clients.’ However, an overseas lawyer may advise a UK based client on specific international litigation and/or an international transaction, and there are other rules for more specialist areas of work. It should be noted that the rules seem to be limiting the work carried out only in respect of UK customers and clients and no mention is made of internationally based customers or remote working.
UK Nationals working remotely for a UK based employer from outside the UK need to know what is permitted under the laws of the country they are planning to visit. There has been some development recently to recognise remote working, with Estonia leading the way within the EU with the ‘e-resident visa’ which was launched in 2014, and the new ‘digital nomad visa’ launched in 2020. The new digital nomad visa is especially interesting, as it has a simple registration process and fee, and will allow a non-Estonian residency rights for up to a year with express permission to live in Estonia to work remotely for an international company or their own non-Estonian based company (as opposed to the e-resident visa which requires you to set up an Estonian company and does not come with a residence right). Germany have a Freelance visa, but only for limited professions: healthcare, law, tax and business counselling, scientific/technical, linguistic and information-transmitting. France, Italy, Spain, Sweden, Portugal likewise all have their own schemes for self-employed persons to enter their country, but unlike Estonia are silent on the remote working front.
Outside of Europe, there are some great options, with Barbados topping the list with the ’12-month Barbados Welcome Stamp’ visa. This is very similar to the Estonia visa, permitting an applicant and their family to live and work in Barbados and is specifically designed for remote workers or those able to run a business online. Barbados is a much more glamourous location to use as a work-base than the UK, but the visa price reflects this. Perhaps a comparable option is Bermuda with its ‘Work from Bermuda Certificate’ scheme, again, specifically designed for remote workers or the self-employed, which at only 10% of the price of the Barbados visa represents great value.
In conclusion, the ‘Martini Mindset’ concept is perhaps an encapsulation of the emerging zeitgeist of this new decade, and 2020 has already seen Estonia, Barbados and Bermuda launch specific visa programmes to attract the early adopters. I am sure that as more people are drawn to this lifestyle, and more international companies allow their workers to work in this manner, even more countries will launch similar visa programmes. The Martini Mindset is becoming a reality, and it is a reality that we can make our own.
Time: 10:00 – 11:00
Date: Tuesday 20th October