‘Van der Elst’ – a convenient alternative? - | Hudson McKenzie

‘Van der Elst’ – a convenient alternative?

In today’s globalized business environment, to ensure they remain competitive, companies must acknowledge, deal with and discharge immigration issues which could hinder the overall mobility of their workforce. Navigating employees to and around Europe comes with many pitfalls and can be a time consuming process. There are many options available when sending or bringing an employee to the UK and it can be difficult to know which to choose. The most commonly used routes require either, (i) that the company already has an established entity in the UK and another European Union (“EU”) Member State, where the employee has worked for a minimum of 12 months, or (ii) that a company with an established UK entity undertakes a length advertising process prior to brining the foreign worker on-board. Luckily, in some cases, there may be an alternative.

The ‘Van der Elst’ visa provides a legitimate vehicle with which to maneuver foreign nationals within the EU to undertake work, without the need to obtain a work permit beforehand. As a direct result of European Community law, companies with an established entity in a European Economic Area (“EEA”) Member State can provide their services in another. Thus, companies that have an entity within the EU can post their employees who have already been working in the EU – whatever nationality they may be – to another EU member state to undertake work on a temporary basis. Employees who are moved around the EU on the basis of the Van der Elst visa are dubbed ‘posted workers’.

The judgement of the European Court of Justice (“ECJ”) in the Van der Elst case decided that, to be eligible for a visa under the principle established, the said employee must be lawfully and habitually employed prior to applying for a visa and becoming a posted worker. When passing their decision, the ECJ provided no exact definition of what would constitute lawful and habitual employment. Taking account of the many comments on the issue as well as successful visa applications, as long as an employee has been previously employed by the company within the EU for any period of time it will suffice. There used to be a UK requirement whereby the employee had to have worked for the company within the EU for 12 months in another Member State before being posted to the UK under Van der Elst, but this was annulled as it was deemed to be highly incompatible with EC law.

Since the judgement handed down in the case in 1994, the European Commission (“EC”) has referred numerous member states to the ECJ for putting in place requirements pertaining to entry, employment and residence that were incompatible with the principle and severely undermined the freedom to provide and/or receive services. Despite the occasional case where an application under Van der Elst takes longer than a traditional application for a standard work permit, this all points toward one theme – Van der Elst can be a quick and convenient alternative to other methods, if the employer is deemed eligible.

If this is something you are in interested in learning more about, our experienced and dedicated team of immigration lawyers are on hand to advise you on every aspect of the process. Please call us on 020 3283 4102 or email at londoninfo@hudsonmckenzie.com.