International Operational Mobility: Exploiting the Benefits and Managing the Risks 

As companies expand their international footprint and seek new markets for their products and services, it is vital that full consideration is given to the regulatory, immigration and legal frameworks in each of the countries in which they wish to operate.  

Compliance with international visa, work permits and licensing requirements 

If employees or contractors are engaged by a business to carry out duties on the ground in a foreign jurisdiction then it is vital that they hold the necessary visa or work permit, and also establish whether the specific type of work to be undertaken requires a licence in that country. For example, many jurisdictions require specific licences to carry out professional services, for filming or reporting activities, and for  conducting investigations. 

Too often, employees and contractors wrongly assume they can just enter a foreign jurisdiction to carry out various work tasks under a visa exemption scheme or a tourist visa. There is also much confusion around the scope of tasks that can be legally undertaken on a business visa as the type and scope of those visa terms vary between countries. As an example, speaking at an international conference is treated differently by countries, with some jurisdictions requiring specific business visas that can vary according to the speaker’s nationality. 

It is also worth considering this from another perspective; that of visitors arriving in the UK for work. The relevant section in the Immigration Rules is Appendix V: Visitor, which was recently updated on 11 April 2024, and which details the activities which are specifically prohibited for visitors, as well as what they are permitted to do. The Rules confirm prohibited activities and payment requirements, as well as eligibility requirements for visitors attending the UK for training or paid engagements, and should be adhered to strictly to avoid the penalties referred to below.  

Risks 

Businesses who fail to adhere to the regulatory, immigration and legal frameworks run significant risks which can have far reaching impact on the business, an employee, or a contractor. Consequences of ignoring these rules range from bad publicity to severe penalties including arrest and charge with criminal offences, significant fines, deportation and exclusion from a jurisdiction.  Companies can also find that such breaches result in their local business units losing their foreign worker hiring privileges and facing restriction on hiring foreign workers in future. 

Significant risks can arise in this area for Regional HR or risk professionals or professional experts undertaking investigations outside the country in which they are based. Businesses will need to give thought to how disciplinary or regulatory issues will be handled if they arise in another jurisdiction.  

Engaging in work overseas without the necessary visa and work permit can lead to the illegal and unauthorized collection of evidence during the overseas placement.  It follows that such evidence may be deemed inadmissible in any legal proceedings and undermine the legal position of the company.  It may also lead to the professional adviser having an obligation to self-report to the appropriate professional body that they have committed a criminal offence and subsequently find they are subject to disciplinary proceedings from the company and the professional body. 

Data privacy laws also vary greatly between jurisdictions and the collection and transfer of evidence will be subject to strict legal compliance.  There is significant further risk in having no visa or the wrong visa type and work permit and then taking collected evidence out of country with the potential for committing a number of different criminal offences. 

In litigation proceedings, it is vital that lawyers consider whether the evidence has been obtained legally. A line of questioning around whether the expert had the necessary visas, work permits and licences in place when carrying out the work covered in the expert report would be appropriate where the work described was outside of that expert’s home jurisdiction.  

Protective Steps 

It is crucial for employers to understand the legal framework in whatever jurisdiction they’re operating in, to ensure that all obligations are met. It may be difficult to monitor senior employees who travel frequently, but employers should ensure they take all reasonable steps to ensure that immigration requirements are complied with. It may be worth considering the inclusion of contractual terms for senior executives, obliging them to comply with immigration requirements where applicable. While an employer may remain ultimately liable for sanctions, it may be helpful to take commensurate action with staff. In addition, employers will want to ensure they have clear policies on travel and data protection and that they are keeping clear records in the event of an investigation.   

In terms of contractors, businesses should carefully review insurance arrangements and indemnities to ensure they aren’t inadvertently accepting liability for the actions that should be the independent contractor’s responsibility. It is also worth bearing in mind that significant foreign travel could give rise to more general claims about the territorial scope of UK employment laws.  While many businesses benefit hugely from the opportunities presented by operating in different markets, it will be important to ensure that employment relationships are properly managed and documented to avoid those benefits being outweighed by the risks involved.