Introduction

If you are a self-employed EU citizen seeking to come to work in the UK, or a British citizen wishing to work in the EU, what does the EU-UK Trade and Co-operation Agreement (applying to those who seek to move from 2021 onwards) do for you? You might be an artist, a journalist, or a lawyer. You might wish to come for a short while and provide a service. Or come and establish yourself, so you can work and reside. What does the Agreement do for you?

Artists, Journalists, Lawyers

These three groups represent the variety of self-employed persons. Artists, say by music, painting or performance, produce work that cannot simply be substituted. Further, their work enriches and inspires those who are exposed to it. Journalists work within a largely unregulated profession and have singular contributions to make. An Italian journalist who moves to the UK, reports on British life to Italians and brings aspect of Italian life to UK readers and viewers. Lawyers work as members of regulated professions and have particular skills and knowledge developed in one country that enables them to advise and represent clients in another within their specialist areas.

No risk to immigration control, jobs, or social security

That there is movement of such people across borders, back and forth, as part of the ordinary incidence of life, is unremarkable and unobjectionable. There is no risk to the job market in the host country through allowing such people to so move (they are self-employed) and no risk to social security systems either (they still have to pay taxes and national/social insurance contributions). Nor is there any risk to immigration control. Such persons will always require permission to enter and reside in a country and may be expelled for criminal conduct and the like. That being the case, what provision has been made for them?

Sadly, very little. The post-Brexit Trade and Cooperation Agreement has crippled the ability of all three groups of self-employed people to move easily without paying fees, suffering delays, and being restricted in what they can do. There is no point in soft-soaping this or wishing the problem away. The Hobbesian manifestation of sovereignty that Brexit entails in terms of international relations has led to a bare bones arrangement that lets self-employed British citizens down when they seek to move to the EU and stops the UK being a destination to which such self-employed EU citizens who might wish to come. Why is the Agreement so bad?

The Trade and Cooperation Agreement

The Agreement is bad for three reasons.  First, there is no provision for self-employed persons to establish themselves, so as to work and reside: British citizens cannot do so in an EU state, EU citizens cannot do so in the UK.

Second, there is only very limited provision for short-term movement if a self-employed person wishes to provide a service and get paid (take a fee) from a client in the host state. As regards Artists, no provision is made. Nothing at all. As regards journalists, no provision is made. Nothing at all. As regards lawyers, the provision made is poor: the scope of permitted work in limited, visas may be required prior to travel, sponsorship requirements may be imposed, application fees may be charged, delays in processing application may lead to loss of work, and, for British citizens there are carve-outs and exceptions in many EU states than render the rights illusory. For example, a British citizen lawyer seeking to work in Hungary faces all the above hurdles and faces an economic needs test. Further, a cooperation contract with a Hungarian law firm or attorney is required.  All in all, it is very thin gruel indeed for the self-employed.

Third, for self-employed British citizen artists and journalists seeking to work around the EU, they have to try and do so via the national immigration rules in each EU state. These rules will vary from state to state. That means more problems. Visas and/or work permits may be required. There may be associated fees. There may be more delays. For an artist a gig, concert or show may be missed. For the journalist a news event may go unreported. Moreover, entry into France does not mean the person can simply move on to Italy; Italy will have its own rules to be satisfied. There may be more fees, more delays.

Why has this happened?

The UK stance in the Trade and Cooperation Agreement negotiations was to grasp for a ‘precedent-based’ approach to mobility arrangements, such as is found in the short-term mobility provisions of the multilateral General Agreement on Trade and Services (GATS) and like bi-lateral treaties. This was a mistake for two reasons. First, GATS and like bi-lateral treaties focus on narrow classes of professional people, lawyers, engineers, management consultants, and not the full gamut of self-employed people such as artists and journalists. Second, the EU states participate in the GATS mobility provisions knowing its limited provisions do not apply in and among themselves as they have free movement of persons. This puts the UK at a serious structural disadvantage vis-à-vis its near-neighbours: why should customers in EU states seek the services of self-employed British citizens when it is so much easier to seek the same from nationals of other EU states?  Why should self-employed EU citizens contribute in the UK when it is so much easier to do so in another EU state? The UK risks autarky; its self-employed citizens isolation.

What is to be done?

The manifest inadequacies of the provision made requires urgent correction if self-employed British citizens are to be able to work in EU states without disproportionate costs, administrative burdens, and delays, and to ensure that the UK remains a place for self-employed EU citizens artists, journalists, and lawyers, and the like to contribute. A mobility side-agreement between the EU and the UK is required so that all self-employed persons can move to provide services without the need for visas or work permits, without needing to pay application fees, and to enable them to spend up to 90 days at a time in an EU state or the UK (as the case may be). Thereafter, once that Agreement is tried and tested, say for two years, consideration needs to be given to further adjustment to it so that such self-employed persons who move to provide services can switch into a category of establishment/residence on satisfaction of prescribed conditions. Were the UK to make such a side-agreement, it would retain the ability to enforce immigration control to those who use it by refusing entry on grounds of prior conduct and expelling those who presence is not conducive to the public good on grounds of conduct. There is every reason to rectify the problem and to do so as a matter of urgency.