Brexit – 3 months into 2021 – recap on immigration and social security (PwC Legal)
Publication date: 14/04/2021
With effect as of 1 January 2021, the coordination rules on social security for new cross-border employment situations between the UK and the EU are laid down in the Trade and Cooperation Agreement, which includes a Protocol on Social Security Coordination. Some of the provisions impact the immigration rules for UK nationals.
The United Kingdom Government and the European Union Commission agreed on a deal for social security. From 1 January 2021, the EU coordination rules on social security have been replaced by the Trade and Cooperation Agreement, which includes a Protocol on Social Security Coordination (“the Protocol”). The Trade and Cooperation Agreement ensures, among other things, that individuals who move between the UK and the EU after 1 January 2021 can access reciprocal healthcare cover and that cross-border workers and their employers are only liable to pay social security contributions in one state at a time.
Key principles for determining the applicable social security scheme
The Protocol affects the social security treatment for new cross-border employment situations from 1 January 2021 onwards (with, however, a sunset clause set at an initial 15 years) and applies to persons legally residing in an EU Member State or the United Kingdom. Arrangements that started prior to 31 December 2020 and continue without interruption beyond 1 January 2021 continue to be covered under the EU coordination rules. The Protocol applies only to situations arising between one or more EU Member States and the United Kingdom.
Persons to whom the Protocol applies are now subject to the legislation of one state only. Generally, this is in the country where work is undertaken. However, this working state principle is subject to two exceptions, whereby the applicable social security system is determined according to a different set of rules: detached workers and multi-state workers. According to the Protocol, it should be possible to obtain a certificate confirming the country of liability for multi-state workers and detached workers. For the latter case, this is normally only possible where the EU Member State has agreed to apply the ‘detached worker’ rules. However, in the meantime, all EU Member States and the UK have confirmed their consent in this respect.
Detached workers within the EU
UK workers who are sent by their UK employer to work temporarily in an EU Member State which has agreed to apply the ‘detached worker’ rules remain liable to only pay social security contributions in the UK for the period of work in that EU Member State. Similarly, EU workers who are sent by their EU employer to work temporarily in the UK from a Member State which has agreed to apply the ‘detached worker’ rules remain liable to only pay contributions in that EU Member State. The conditions to be considered a detached worker are the same as those for postings or secondments under Regulation (EC) 883/2004.
The absolute maximum duration to apply the detached worker rules is, however, set to 24 months, without a possibility for an extension.
Note that the detached worker rules only cover EU Member States. The previous EU Social Security Regulations also covered Iceland, Liechtenstein, Norway and Switzerland.
The UK has indicated its position with respect to detached workers as follows:
- Switzerland: a certificate can be obtained for detached workers for postings of up to 24 months.
- Norway: a certificate can be obtained for detached workers for postings of up to 36 months.
- Iceland: a certificate can be obtained for detached workers for postings of up to 52 weeks for non-UK and non-EEA nationals. This can be extended by a further 52 weeks, but an agreement from the UK and the Iceland social security institutions is needed prior to the end of the first 52 weeks.
- Liechtenstein: the UK does not have a bilateral agreement with Liechtenstein. It is expected that UK and Liechtenstein domestic legislation will apply, which may result in a dual social security liability in some situations.
The Protocol also covers multi-state workers with provisions that are similar to those as laid down in Regulation (EC) 883/2004. In contrast to the detached worker rules, the EU Member States are all automatically covered by the rules and do not have to ‘opt in’. For the multi-state workers, the substantial activity is interpreted on the basis of the known 25% rule, and also the notion of marginal activities is applicable.
Note that these clauses do not cover Iceland, Liechtenstein, Norway and Switzerland. However, such social security position for multi-state workers working in the UK and any of these countries would be determined in accordance with the bilateral social security agreement concluded between the UK and the respective countries. As there is no bilateral agreement with Liechtenstein, a dual social security liability may arise for UK Liechtenstein multi-state workers.
No general exception clause
Note that the Protocol does not contain any provision that allows the UK and any EU Member State to deviate from the applicable rules in mutual consent. So no agreements are possible to arrange for extensions of assignments under home state social security rules, or to cover honest mistakes in applied social security rules.
The certificate confirming the country of liability for detached workers and multi-state workers is in first instance an A1 document, to be applied for following the known procedures. Also for third-country nationals falling within the scope of the Protocol, the document to be used is A1 (not E101).
The Trade and Cooperation Agreement also contains provisions on movement of people, more in particular for business travellers, business visitors for investment purposes, intra-corporate employees, self-employed professionals and contractual service suppliers.
Short-term visa exemption
All UK nationals travelling to Belgium are exempted from visa C for short stay. Short stay is limited to 90 days within any given 180 days in the whole Shengen area. However, this does not automatically mean that the person is also allowed to work in Belgium.
Exemption from work permit for business visitors
For most categories, exemptions have already been provided for in the Belgian legislation. In addition to the current exemptions from holding a work permit, which can differ per region, an additional exemption is added on the basis of the Trade and Cooperation Agreement for UK nationals only. UK short-term business visitors are exempted from a work permit for maximum 90 days within 180 days when engaging in the following activities:
- meetings and consultations (See art. 8 of Annex Servin 3: Business visitors for establishment purposes, intra-corporate transferees and short-term business visitors);
- research and design;
- marketing research;
- training seminars;
- trade fairs and exhibitions;
- after-sales or after-lease service;
- translation and interpretation;
The Trade and Cooperation Agreement also contains provisions for contractual suppliers and self-employed professionals. However, based on current understanding, these provisions do not exempt them from the requirement to obtain a work permit/single permit or a professional card nor the requirement to meet the existing conditions with respect to minimum salary, education etc.
UK nationals already residing in Belgium (before 31 December 2020)
UK nationals and their family members who exercised their right to free movement by residing in Belgium before or on 31 December 2020 at the latest may apply for the status of beneficiary of the Withdrawal Agreement. British nationals and their family members who already legally reside in Belgium can apply for a new residence status (M card) in Belgium. They can do so until 31 December 2021 via the commune of residence in Belgium.
Persons submitting such an application receive a statement guaranteeing their rights as beneficiaries of the Withdrawal Agreement while awaiting the receipt of the corresponding electronic card. This certificate may be used in Belgium or when travelling outside Belgium.
Until 31 December 2021, the old residence card (E card or E+ card) may be used in Belgium or when crossing the border.
The UK frontier workers who are protected by the Withdrawal Agreement need to apply for the N card, which is an electronic card proving that they are exempted from any visa or work permit requirements in Belgium. A frontier worker is any citizen of the United Kingdom exercising an economic activity in Belgium as an employed or self-employed person but who does not reside in Belgium. Important to remark here is that persons who only work in Belgium under the free movement of services provisions (meaning people who do not have a Belgian employment contract) cannot invoke this right. Also here the application period runs until 31 December 2021. The application has to be submitted at the commune of the place of employment.
UK nationals coming to Belgium as from 1 January 2021
British nationals who wish to settle and reside in Belgium on or after 1 January 2021 have to comply with the general immigration rules that apply in Belgium to third-country nationals (i.e. non-European Economic Area nationals and non-Swiss nationals). For employees this means that unless an exemption from a work permit can be invoked, a single permit or a work permit has to be obtained. Nonetheless, certain family members who can prove a relationship with a beneficiary of the Withdrawal Agreement are still allowed to join their family members in Belgium on or after 1 January 2021.
Important takeaways for social security and immigration
- In any cross-border situation involving the UK, it will be important to determine the applicable set of rules relating to social security coordination (continued application of Regulation (EC) 883/2004 vs application of the Protocol).
- A similar set of reference rules is laid down in the Protocol, but there are notable differences (such as a maximum duration of 24 months for detached workers without possible extension, and no ‘exception’ clause).
- The certificate confirming the country of liability for multi-state workers and detached workers is in first instance an A1 document, to be applied for following the known procedures.
- UK nationals residing and/or working in Belgium before 31 December 2020 need to apply for an electronic M or N card.
- The application period runs until 31 December 2021.
- UK nationals wishing to come to Belgium as from 1 January 2021 have to follow the same rules as other third-country nationals, with some exceptions for certain business visitors.