Is Santa Coming to Town? UK Immigration Law v Christmas
Author: Adam McGlynn
It is that magical time of year again when the troubles of the last 12 months give way to tidings of comfort and joy. As the Christmas spirit settles on the nation, focus turns to the 25th December and we count down the days until we get to unwrap our presents. But to some people, like me, Christmas may be feeling a little different this year. As excitement turned to apprehension turned to fear, I began to realise what the problem was:
Could Brexit and the changes to the UK’s immigration system stop Santa delivering presents this year?
Perhaps it is paranoid of me to even consider that Santa could miss a delivery, but I felt compelled to determine the answer for myself. Santa, if you are reading this, the fee estimate for this work is one chocolate orange, a blanket with sleeves, and one of those electric scooters.
If you read my article from 2019, Elf Labour – the Definitive Legal Answer, you will know that the elves work at Santa’s workshop at the North Pole. However, this cannot lead to the assumption that Santa himself is from, or lives at, the North Pole. Santa has supposed origins all over Europe and sources say that he currently resides in Lapland, Finland. It is, therefore, likely that Santa has European citizenship. This is helpful as the UK does not yet recognise the great state of North Pole and, rather than being ‘North Polish’, Santa would be considered a ‘stateless person’. It would be possible for Santa to enter the UK as a stateless person provided he (1) was not recognised as a citizen of any country – check, and (2) was unable to live permanently in any other country – questionable. Nevertheless, Santa could not submit his application until he was actually in the UK so it is highly unlikely that we have been receiving presents on time for decades while relying on such quick turnarounds from the Home Office.
Entry in 2020
As an EU national, Santa can benefit from certain freedoms within EU member states, including the free movement of workers. The UK left the EU on 31 January 2020, however, a transitional period has temporarily maintained the majority of the UK-EU relationship which continues, as if the UK were a member state, until 11pm on 31 December 2020. For 2020 at least, it looks like Santa can travel to the UK for work.
The Rules of Christmas Future
Following the end of the transition period, the freedom of movement of workers, as well as other freedoms, will fall away and EU nationals will be subject to largely the same immigration rules as the rest of the world. There are some exceptions/ options which Santa may wish to consider here including (1) Settled status, and (2) a frontier worker permit.
Settled or Pre-settled status is available to EU nationals who are resident in the UK before the end of the transition period with the deadline for applications on 30 June 2021. If Santa decides to move his grotto to the green and pleasant lands of the UK, then there is still time for him to apply to the EUSS. Alternatively, if he wants to keep commuting, he could look at the Government’s new frontier worker permit rules.
Draft legislation for the rules applying to frontier workers has now been set out in The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020. If enacted as proposed, Santa could apply for a frontier worker permit, allowing him to commute to the UK for work. However, he would need to maintain the status of ‘frontier worker’ between Christmas Eves. Frontier worker permits are designed for more regular commuting between the UK and EU than Santa’s annual fly-by and so his status is likely to expire six months after Christmas. Without settled status or a frontier worker permit, Santa will be wondering what immigration routes are available to him and whether he needs a visa.
A Christmas Visit
Santa has stops to make all over the world and so his time in the UK will only be brief. He will, therefore, be hoping to be classed as a ‘visitor’ in order to avoid the eligibility criteria of the UK’s new points-based system. Santa would, allegedly, satisfy some tier 2 (skilled worker) criteria, such as the English language requirement, but would probably struggle to prove he has a valid job offer from a sponsored UK employer or that the milk and cookies he receives on Christmas Eve amount to the minimum salary threshold. A tier 2 visa would not be necessary though if Santa can prove he is a visitor – more specifically in this case, a standard or a transit visitor.
Dashing Through the Snow
Transit visitors are permitted to stay in the UK for up to 48 hours in order to transit the UK on route to another country. Since Santa only plans to pop by before catching his connecting sleigh-ride West, this seems, at first, to be a good option. However, two eligibility criteria for this route may cause problems. Firstly, Santa would need to prove that the genuine reason for his presence in the UK is merely transit rather than, for example, the delivery of presents. Secondly, he will need to prove that he is taking a reasonable route, which will be difficult if his route involves visiting every household in the UK.
Santa Claus is Coming to Town
Hope is not lost though as Santa could be granted entry for up to six months to engage in a host of permitted activities, provided he can be considered a standard visitor. Most of the criteria for a genuine standard visitor will be easily satisfied including the intention not to stay long-term and the requirement to have sufficient funds for his stay. The two causes for concern though are that standard visitors are not allowed to work or receive payment during their stay. It is possible that the aforementioned milk and cookies could amount to payment, however, if push came to shove, Santa could put forward an argument that these are exempt as reasonable expenses. The more pressing question is whether Santa’s activities on Christmas Eve can be considered ‘work’.
The concept of ‘working’ under the UK’s immigration rules includes activities such as volunteering and ‘providing goods and services’. However, the rules also expressly include ‘selling’ goods to the public without making express provisions for what appears, in Santa’s case, to be the giving of gifts. The work-related ‘permitted acts’ are of little assistance – Santa could put forward an argument that he is conducting a series of site visits or that his work is purely promotional, but these would be tenuous at best. Fortunately, PA 9 of the visitor rules: permitted activities appendix comes to Santa’s rescue. This section relates to overseas roles requiring specific activities in the UK and permits a driver employed outside of the UK and on a genuine international route to visit the UK in order to deliver or collect goods or passengers between the UK and overseas. Of course, Santa is his own boss, but there is nothing stopping him setting up the Finnish incorporated entity Ho Ho Ho Oy in order to employ himself. As such Santa would have a strong application to enter the UK as a standard visitor.
Hurry Down the Chimney
Hooray, Santa can come to town for the foreseeable future, but what about the presents themselves? Santa is currently able to bring the presents to the UK with the benefit of the free movement of goods. This freedom provides tariff‑free access to the single market and prohibits non‑tariff barriers such as product regulation. Once this freedom comes to an end on 31 December 2020, Santa may have to pay import tariffs in order to bring his gifts into the UK. Whether or not the UK Global Tariff will apply to each of our Christmas presents in 2021 largely depends on whether a deal with the EU is reached beforehand. So, if you are hoping to find a Sable or a ’54 convertible under the tree next Christmas, the UK and EU Brexit negotiators will need to stay off of Santa’s naughty list.