Non-EEA nationals usually remain subject to the national immigration rules of each EEA member state. However, the rules and principles of EU law can sometimes interfere with the national laws.
The principle of free movement of services within the European Union means that companies established in one EU Member State can provide services in the territory of another EU Member State other than the one in which they are established. Following on from this principle, these companies can also send their employees, including non-EEA nationals, within the EU on a temporary basis, to provide their services without the need to obtain separate work permits for each country. So as an example, a company established in France can send US nationals holding French work permits to the UK without the need to obtain a separate work permit in the UK. This is known as the Van Der Elst principle.
The Van Der Elst principle is recognised by most of the EU member states, although the rules differ slightly in each state. In the UK, the main requirements are as follows:
- Migrant workers must be lawfully resident in the EU member state in which their employer is established;
- They must be lawfully and habitually employed by an employer who is temporarily providing a service in the UK;
- They do not intend to take any other employment in the UK;
- They intend to remain in the UK only for the period during which their employer is providing services in the UK;
- Entry clearance is mandatory for both visa and non-visa nationals, although there are no fees for the applications.
The rule means that host countries have less control over Van Der Elst workers compared to those they have issued work permits to directly. The control is mainly with the EU Member State for which the work permit has been obtained. There is certainly some logic in this.
The Van Der Elst work permit exemption is a good option for businesses with projects in multiple EU countries.
Kasia Janucik
