While the Common Travel Area between Ireland and the UK has been preserved post-Brexit, businesses still need to be compliant when it comes to work and travel permission requirements for employees, says Doone O’Doherty.
Now that the UK has officially left the EU, many employers have started to see travel and work restrictions apply to certain employees who, before Brexit, could have travelled and worked freely within the EU. Employers need to ensure compliance for their employees and indeed for their own organisations.
Ireland is in a somewhat unique position insofar as the free movement of UK and Irish nationals between both countries has been retained under the Common Travel Area agreement. There may be an assumption that Brexit really has no immediate impact on the people agenda for Irish employers and, for many organisations, this is the case. For others, however, particularly those with UK or EU national employees, Brexit throws up a completely new conundrum, with concerns over immigration and global mobility becoming something that employers may need to navigate, often for the first time.
Work permission required
The bottom line is that, since 1 January, freedom of movement of UK and EU nationals between the UK and the rest of the EU has ended. If you have either UK national employees who need to travel to another EU member state, or EU national employees who need to travel to the UK, these individuals are now subject to potential work permission requirements. There may also be restrictions and time limits on the activities they can carry out as business travellers. Where once a UK national could simply move to another EU member state at short notice, and vice versa, attention and planning now need to be given to such travel arrangements. Not only does consideration need to be given to any new movement of people, EU nationals already resident in the UK will have needed to secure their right to live in the UK under the EU Settlement Scheme. Similarly, UK nationals resident in the EU will need to secure their status and regularise their position under the specific rules for that country.
Thorough review needed
Businesses need to undertake a thorough review of their workforce and identify any frequent business travellers or those who are likely to be affected by immigration restrictions. This includes building potential immigration requirements and robust pre-travel processes into their Global Mobility Policies. Communicating with employees is also important to make them aware of any new pre-travel requirements or steps to secure settlement that they may need to undertake. Consider the potential cost impact of obtaining necessary immigration clearance.
There are two aspects to consider: social security and the application of Irish PAYE rules to short-term business travellers.
The Social Welfare Order 2020 came into effect on 1 January 2021. Its purpose is to ensure that the social security rights and entitlements of Irish and UK citizens under the Common Travel Area arrangements are maintained post-Brexit and that social security need only be paid in one jurisdiction. One key aspect is that it applies to Irish or UK citizens only, who may work in either one or both territories.
Thankfully, supplementary provisions were included in a new protocol to the Trade and Cooperation Agreement on Social Security Coordination to ensure that EU or UK citizens who move between Member States will continue to be liable to pay social security contributions in one State at a time. Special provision is made for ‘commuters’, which provides that such individuals may be retained within their home country social security system. This is particularly welcome in the case of EU citizens living in the UK who commute or are posted to Ireland to work and who would not have been able to avail of the Social Security provisions above.
Employers need to understand where their people work, their citizenship status and how to make the appropriate applications under the revised rules to the relevant social security authority.
Irish PAYE and short-term business travellers
There is no change to the underlying tax rules in Ireland because of Brexit. However, there is likely to be increased short-term business travel between Ireland and the UK, largely due to our geographic proximity and the fact Ireland is the only English-speaking member of the EU.
One myth that often exists is the belief that, provided an individual spends less than 183 days in Ireland, there are no tax implications for their UK employer. This is far from the truth – Ireland has a comprehensive set of rules applicable to short-term business travellers/visitors (STBV) that can easily give rise to an obligation to operate Irish PAYE based on an individuals’ Irish workdays. Equally, it is possible to avail of some concessions in respect of STBVs whereby Irish PAYE does not need to be applied, but only if the appropriate due diligence is undertaken.
UK employers need to understand the travel patterns of their staff, the nature of the duties they are undertaking and the intended duration of those activities. Advice should be sought regarding the potential Irish PAYE (payroll withholding obligations) and whether there is a way to mitigate that obligation. Furthermore, the employer should implement a robust system of tracking an employee’s Irish workdays in order to mitigate any potential breaches.
Doone O’Doherty is a Partner in People & Organisation at PwC.