The employee must:
- be lawfully resident in the EU member state in which the employer is established
- be lawfully and habitually employed by an employer who is temporarily providing a service in the UK
- not intend to take any other employment, and
- intend to leave the UK at the end of the period during which their employer is providing the service
No specific seniority with the sending company is specified. Depending on the facts of the case, it has been suggested that the 'habitual employment' (as it was originally requested by the European Court of Justice) test could be satisfied in a matter of months. Procedure
The application process involves three principal stages:
- completion and submission of an online visa application form
- biometric data collection at the British diplomatic post or visa application centre in the country where the employee is applying, and
- submission of the original supporting documents to the British diplomatic post
Requirements and documents
While there is no mandatory application form or guidance on what documents to provide, it is advisable to submit the following supporting documents with the application:
- a contract for services between the employer and the client in the UK
- the employee's payslips and employment contract, and
- letters from employer and UK client confirming duration of the assignment (if not evident from the client contract alone)
How long can the posting last?
Entry clearance should be issued for the length of the contract.
What is the position for family members?
Family members are allowed to reside and work in the UK in line with the Van der Elst employee. Prior to relocating to the UK, family members (including non-visa nationals) should apply for entry clearance to join/accompany the employee. Applications from family members should be handled in a similar way to EEA family permit applications.
Remarks and practical problems
There is no application fee. British diplomatic posts do not process a significant number of Van der Elst applications and therefore it is advisable to submit representations as to the legal basis of the applications to avoid delay. Some entry clearance officers may be unwilling to grant more than six months leave to enter. Refusals do not attract a full right of appeal.
Natasha Chell, Partner at Laura Devine Solicitors
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