With the ever increasing globalisation of businesses, freedom of movement has become crucial in order to remain competitive in today’s tough climate. However, the mobility of non-EEA citizens travelling between EU member states can often prove challenging for employers if the employee is subject to immigration control.
Unlike EEA nationals, non-EEA nationals are often subject to the immigration control of each EU member state they are traveling to, thus, having implications for the employer who will often be dealing with the employee’s immigration process in some shape or form.
If an employee’s activity fails to come under the terms of a Business Visitor visa for example, they may still be eligible to work in the UK by applying for a Van der Elst visa.
What is Van der Elst?
In 1994, a Belgian employer (Van der Elst) employed Moroccan nationals in Belgium who were entitled to reside and work there legally. The Moroccan employees were required to provide services to a client in France as part of an agreement between their employer and the French firm.
Van der Elst obtained short stay entry visas from the French consulate and the Moroccan employees travelled to France to provide a temporary service to the French firm. Upon arrival, the French authorities claimed that the employees were in breach of French immigration law since the Moroccan employees had not obtained valid work permits. The authorities fined Van der Elst but this was appealed and ended up at the European Court of Justice.
The European Court of Justice ruled that if certain criteria is met, non-EEA individuals working in an EU member state are able to work in another EU member state for the purpose of providing services for a limited period of time. This is mentioned under Articles 59 and 60 of the EEC Treaty.
Hypothetically, an established non-EEA employee working for an EU company in Germany for example, can come and work in the UK in order to provide a service on behalf of the employer without requiring a work permit.
Entry clearance applies regardless to whether the applicant is a visa or a non-visa national.
The employee must meet the following requirements to qualify;
- They must be lawfully employed by an employer who is providing a service in the UK on a temporary basis;
- They must be a lawful resident of the EU member state in which they are originally employed in;
- They must leave the UK once the period during which the employer is providing the service is complete;
- They must not take any other form of employment while in the UK.
If you have any questions or believe that Van der Elst could apply to you, don’t hesitate to contact us.