What are the consequences of being caught without the right
I am writing this article with the help of our legal advisor Samar Shams, Partner - Immigration & Global Mobility at Spencer West.
I recently had a conversation with a senior official at a large company operating in the entertainment industry. I will not be naming any names, but the company uses freelance technical staff for its events all over the EU, some events lasting in excess of 90 days.
They are very concerned about the knock-on effect of touring issues now faced by us all after the govt failed to secure a deal for the creative industries and excluded us from the TCA.
During the conversation with the company official, they mentioned that they were looking into the consequences of their freelance staff either being caught without the correct paperwork (work permits / visas / insurance / etc) or running out of time allowance for that country, i.e. being there for more than 90 days.
As a freelancer myself I have previously been asked (and politely refused) to work in the United States without an O2 visa, by companies that have said to me “Oh don’t worry, it’s only a couple of days, nobody will know.”
I have also heard horror stories of freelancers being caught working in the States without the correct visa and being deported after a lengthy spell in a detention centre.
One of the consequences of being caught working in the States on a tourist visa, apart from being deported, is that you will not be able to obtain a visa again for 5 years or longer. Whilst banned, you will not be able to enter the US for work or pleasure.
This also seems to be the case for the EU27. There was a reported incident where some builders were deported from Germany for not having the correct work permits.
“Three British tradesmen have been fined and deported from Germany as the country toughens its stance on unregistered workers after Brexit.
Officials from the customs authority in Stuttgart inspected the paperwork of five workers who were fitting out a sports shop on behalf of a Slovenian company. The men were told that they did not have sufficient documentation to justify their stay in the country.
The men included a Croatian, a Serb and the three British electricians, from Hornchurch, east London, who were identified under Germany’s privacy laws only as Matthew O, 22, Carl P, 30, and Pjotr O, 51.
Thomas Seemann, the spokesman for the customs office in Stuttgart, told The Times that although the three Britons had not been prosecuted, they had to pay an upfront fine before they were deported. “The official accusation against the men is that they were working illegally in the Federal Republic of Germany, as they did not have a place of residence or the correct paperwork,” Seemann said. “Based on this, they had to deposit a ‘financial security’ for the expected penalty. The public prosecutor’s office in Stuttgart will determine how high the penalty will be.”
I think it safe to assume that if the authorities in Germany have deported some relatively low profile workers in this instance, they will definitely be checking high profile tours and events.
This is of concern, as we all know that there are some unscrupulous companies that out there will try to get freelancers to “risk it”.If they get caught it will be the freelancer’s immediate problem, not that of the company that sent them.
Also, younger or inexperienced people may fall foul of this, just through lack of knowledge or simply because of the failure of the government to as yet provide any clear advice.
The days of a band throwing guitars and amps in the back of a van and heading off to the continent for a few gigs are over. And those people who say “well we did it before” are not thinking that statement through. Yes, we did do it before, but, and it’s a big but, before we were all on the same level playing field. Now it’s 27 countries on one side and one on the other, a somewhat unlevel playing field.
Also, with the advent of social media and the ability for bands etc to self-promote themselves and their activities, it is also quite easy for authorities to “notice” what they are up to and possible inspections could be the norm.
Other thoughts occur, will trucks and busses with UK plates be subject to spot checks? Yes as each country will of course be on the lookout for Carnet infringements. Local authorities in the country in which they have been stopped will check individuals’ activities are in line with their immigration status. Compliance with the 90-day rule will be checked at the Schengen Area border through a database in use now. Schengen area border control will also assess whether individual’s intended activities conform to their proposed type of entry, e.g. as a non-visa national visitor.
Short notice engagements, sickness cover and last minute additions, will no longer be possible, due to the time needed to obtain the paperwork.
We hear that the work permit issue MAY be policed by the promoters, and that it will be the promoter’s that will have to ensure everyone has the correct paperwork in order to issue payment.
Whilst the vast majority of promoters will act appropriately and lawfully, there are some that will use the opportunity to their advantage, or some that may not know the rules themselves, which could lead to the situation I have discussed above.
So, what are the consequences?
Let’s hear from Samar:
Complacency and entitlement after decades of UK membership in the EU cloud UK nationals’ understanding of what ‘it’ is they are risking if they choose to work in the EU without authorisation: fines, detention, expulsion, and a Schengen-wide re-entry ban.
Unless and until the UK and the EU agree realistic immigration policies to allow creatives and the staff that support them to tour, UK freelancers must ensure that their planned activities in the EU comply with the restrictions on Short-term business visitors set out in the EU-UK Trade and Cooperation Agreement (the TCA).
Although not enough to facilitate the activities of most workers involved with a tour, the permissions under the TCA are not to be discounted. For example, a potentially useful permission exists for installation of equipment incidental to a lease agreement. Freelancers and employees alike who wish to rely on a permission under the TCA should carry with them a letter to show to border control and to EU Member State authorities, that sets out how their planned activities comply with the TCA.
Where planned activities fall outside those permitted to Short-term business visitors, freelancers must have authorisation to work, for example by obtaining work visas for each country in which they propose to work.
Whether one is traveling for business or pleasure, UK nationals are now limited to spending 90 days out of any 180 days in the EU as visitors. Note well the following details of the 90-day restriction:
- The 90 days are aggregated across time spent in all EU Member States;
- The 90 days are aggregated to include both holidays and business travel; and
- The 180-day time frame is calculated on a rolling basis, i.e. in the three months preceding and the three months following any one day spent in the EU, a UK national must not have spent more than 90 days in the EU as a visitor.
Let's take Italy as an example
The consequences of breaching the conditions of the TCA and working illegally will vary amongst EU Member States. A review of the consequences of illegal working in Italy illustrates the types of consequences that freelancers can expect.
In Italy, individuals may be fined a few hundred Euros for working illegally. If the Italian authorities find that a freelancer entered or stayed in Italy illegally, fines can be up to €10,000.
A freelancer could be expelled from Italy for illegal working under administrative processes, for example if they have stayed in Italy in excess of the permitted duration. It is likely that one would be detained pending this type of administrative expulsion.
Individuals can also be expelled by order of a judge. This could happen where someone is sentenced to less than 2 years imprisonment or has less than 2 years left to serve on a sentence by the time they are convicted.
A freelancer who is expelled from Italy could be banned from entering Italy again for up to 10 years.
The consequences of illegal working in one country will spread to affect one’s eligibility to enter other EU countries. Border control officers in most EU countries consult the Schengen Information System (SIS) for alerts when assessing eligibility for entry. By the end of 2021, the information available to them will include expulsions and entry bans imposed by Schengen states. The SIS is used by all EU Member States other than Cyprus, and is used by non-EU states Iceland, Norway, Switzerland and Liechtenstein.
An expulsion or entry ban imposed in any Schengen Area state is therefore likely to trigger increased scrutiny by border control officers of other Schengen Area states and possibly refusal of entry.
We have laid out above the consequences for individuals. Note that the consequences apply regardless of whether the individual is a freelancer or the employee of a UK company.
Employees are unlikely to have a claim against a UK employer for sending them to work in the EU without proper authorisation. A claim that an employer has breached their duty of care would be weak where the employee should be aware, given Brexit, that they need authorisation to work in the EU.
Risks for UK employers
Employers too are subject to civil and criminal penalties for employing illegal workers in EU Member States. In Spain, all of the following sanctions exist to penalise employers for illegal working:
- Fines of up to €100,000 per illegally hired employee
- Confiscation of equipment
- Withdrawal of a residence permit if the employer is a third-country national
In the UK, criminal liability for illegal working extends from an employee or officer within a company who has responsibility for the employment of a company to the body corporate and then to the officers, directors and other personnel with substantial liability. If EU countries have or develop similar legislation, directors and other officers of UK companies could be personally criminally liable for instances of illegal working in the EU. EU state authorities can easily verify the identities of officers of the UK employing company by checking Companies House records online. It is possible that this information could be used to impose civil or criminal penalties on UK employers and their company officers.
How these penalties might be enforced after the post-Brexit transition period ends on 30 June 2021 is not entirely clear. We are evidently still learning the meaning of Brexit and will be for years to come.
Samar Shams is a Partner on the Immigration and Global Mobility team at Spencer West LLP. She would like to thank Marco Mazzeschi of Italian immigration consultancy Mazzeschi srl for his kind assistance with the research for this article.
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