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Solutions for cross-border workers after Brexit

In a nutshell, the Dutch offer to UK nationals in a no-deal Brexit scenario is: if you reside in the Netherlands on Brexit date, you will keep all the rights you have, and the same applies to your family members.

15 oktober 2019 In essence, it is a rather generous regime. Less known is that there is also a separate arrangement for UK cross-border workers who are not residents of the Netherlands but who work here. They will keep the rights associated with the existing cross border regime only during the transition period, which will run for 15 months starting on Brexit date. What options are available to this group after the transition period?

The transition regime for UK nationals and their family members applies only to those who are registered in the local municipal database. In brief: if you’re registered on Brexit date, you’re in.

Cross-border workers – who are not registered, in principle – don’t benefit from this general and quite favorable transition regime, but they may remain working during the transition period. Cross-border workers are defined as: UK nationals who work in the Netherlands, but do not live here, and return to the UK at least every week. For the duration of the transition period they are eligible for an endorsement sticker in their passport allowing them to keep working.

But problems may arise soon: EU border workers are exempt from the Schengen rules for short stay, but after Brexit, UK citizens are not EU citizens anymore, and the Schengen rules will apply with immediate effect, regardless of any transition period. UK border workers will have to start respecting the maximum number of 90 days of stay out of 180 days in the Schengen area. Limiting the number of days in the Netherlands to 3,5 days per week on average will be the way to solve this. 

Things will get even more complicated after the transition period. The work is no longer exempt from the work permit requirement.

The most obvious work permit would be the Intracorporate transfer (ICT) permit, which is a residence permit encompassing work authorization. But a residence permit is not what cross-border workers want, because it requires this phenomenon of registration in the municipal database – which border workers don’t want, or they would have registered in the municipal database before Brexit date in the first place. Personal tax reasons are the most likely explanation for not wanting to register. Fortunately, it is possible to obtain a seperate work permit that allows for work during periods of short stay, without the necessity of a residence permit or municipal registration.

The most obvious permit category that allows for a seperate work permit is the Knowledge Migrant Permit (KMR, kennismigrant). The KMR requirements, as is widely known, are quite straightforward: the salary must be above € 4.500,- gross per month (or € 3.299,- for employees under 30 years of age) and the employer must have recognised sponsor status. If the employer is not (or does not want to become) a recognised sponsor, there are alternative options, e.g. the ICT permit based on the WTO/Gats arrangements.

Such seperate work permit could cover 90 days, but also longer periods – up to several years. Provided that the total number of days of stay consistently remains within 90 days in 180 days. Only if a work permit is not “used” for more than a full month, is there – in theory - a ground to withdraw it, so short stay and a seperate work permit can perfectly be combined.

In conclusion: cross border workers that are able to limit their stay in the Netherlands to an average of 3,5 per week, should not be impacted too much by Brexit. A border worker who needs more than 3,5 days per week - and who is sure of it - should urgently consider registering in the municipal database before Brexit date, even if just to buy time for a more definitive decision.

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