Posted Workers and the Van Der Elst provision

The Posted Workers directive or the Van Der Elst provisions have been an important mechanism for EU-based companies in posting employees to provide services across Europe. These provisions despite their importance are not widely known, and with Brexit looming, they may not be available for long.

The Posted Directive route finds its beginnings in the Posted Workers Directive of 1996 and subsequent cases of the European Court of Justice.  This provision allows for the rights of EEA businesses who are temporarily providing services in ‘another’ EEA country to ‘post’ their non-EEA employees without seeking ‘formal permission to work’. For the UK, this means that non-EEA employees can be ‘posted’ to the UK without applying for a Tier 2 visa.

The provision therefore assists businesses in avoiding red-tape when providing their services, usually at short notice, using their existing non-EEA work force. This route is popular in the construction sector where companies routinely work in different EEA states and employ non-EEA nationals.

The provision despite its benefits is not easily accessible on the visa pages of most EEA countries. For example, in the UK, whilst there is detailed guidance available for most immigration routes, the Van Der Elst provision has a single page which vaguely guides on this route.

How to apply for the Van Der Elst route?

The key principles of this route are:

• The non-EEA national is an employee of the company in the sending EEA state, with a valid residence permit;
• That the engagement in the receiving EEA state is necessary to provide services on behalf of the EEA company, but only for a temporary time-limited basis (usually up to 12-months).

The application for this visa varies in different countries, with some allowing non-EEA non-visa nationals to seek permission to enter at the Border. However, for other countries, entry clearance is mandatory.

The requirements to fulfil the two key principle also vary with each country, with some requiring detailed evidence of employment and the services to be provided, whereas others require basic evidence.

How does Brexit affect this route?

The current date for Brexit is set for 31 October 2019, and the effect to this route of Brexit will depend on whether the UK exits the EU with or without a deal.

If the UK leaves with a deal, it is likely that these provisions will continue under the transitional period and thereafter be transposed into the UK domestic law. It is also likely that this provision will be included in the future trading agreement.

If the UK leaves without a deal, these provisions will fall away alongside other European law. Whilst there is discussion that historic treaties with some member states may then be relevant, there is doubt in respect of applicability. It may be that the UK government adopts similar provisions in domestic law, however, it is unclear how long this law would take and whether the same approach is adopted by other EU states for their UK posted workers.

What can employers do now?

The Van der Elst and posted workers provisions remain valid today and companies can therefore use these provisions to seek entry clearance for their employees. It is expected that once permission is given, it will continue to the end of its validity period.

In the event of a no-deal Brexit, and no alternative mechanism being set up, companies may want to consider obtaining a Tier 2 licence for their skilled workers. The provision or low-skilled workers may also be widened in the Post-Brexit Immigration system, as detailed by the Government White Paper.