The ECJ case of Van der Elst established that, provided certain criteria are met, non-EEA nationals working for an EU employer in the EU should be allowed to provide services in another Member State without the need to obtain a work permit.
This means that an established non-EEA employee of an EU company in the EU can come to the UK to provide a service on behalf of the company without a work permit. Entry clearance is mandatory for both visa and non-visa nationals. Entry clearance is issued gratis.
The requirements to be met by the employee are that they:
- are lawfully resident in the EU Member State in which the employer is established;
- are lawfully and habitually employed by an employer who is temporarily providing a service in the UK;
- do not intend to take any other employment;
- intend to leave the UK at the end of the period during which his employer is providing the service.
2. EUN4.2 What is the visa endorsement for non-EEA nationals working for EU employers?
D: FOR EMPLOYMENT WITH [add NAME OF COMPANY], Code 4
Visas should be issued for the length of the contract with the EU employer.
Applications from family members should be handled in the same way as EEA family permit applications. However, they will not receive EEA FAmily Permits but dependant visas endorsed:
D: TO JOIN/ACC [NAME OF VAN DER ELST EMPLOYEE], Code 1
3. EUN4.3 What requirements do non-EEA/ Swiss nationals working for Swiss employers in the UK need to meet?
Non-EEA / Swiss national workers (posted workers) of Swiss companies may come to the UK to provide services on behalf of those companies. This is similar to Vander Elst applications but Swiss posted workers are only permitted to work in the UK for a total of 90 days in one calendar year. Visas should be limited to the period of the applicant’s intended stay in the UK, up to 90 days.
Fees – Applications are gratis
4. EUN4.4 What is the visa endorsement for non-EEA nationals working for Swiss employers?
Endorsement: FOR EMPLOYMENT WITH [add NAME OF COMPANY], Code 4
Visas should be issued for the length of the contract with the Swiss employer.Swiss posted workers may NOT be accompanied by their family members.
5. EUN4.5 How do I refuse and what are the appeal rights?
If the applicant does not meet the above criteria they fall to be refused under Paragraph 128 of the Immigration Rules for lack of a work permit. Refusals do not attract a full right of appeal.
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