The Citizens Directive and Free Movement of Workers Regulation makes provision for frontier workers. Frontier workers are workers who live in one state and commutes to work to another state having taken up employment in that other. It also includes a person who continues in a job having moved to another state.
A returnee is a person who has spent time working in one member state and returns to his home state. Frontier workers and returnees are covered by the EU provisions on the free movement of workers.
Frontier workers benefit from the principle of non-discrimination and equal treatment applicable to workers moving within the EU. This applies equality of treatment in relation to conditions of employment in work including remuneration, dismissal and in the event that they become unemployed reinstatement or re-employment.
Frontier workers like migrant workers are subject to the labour legislation of the country of employment. They enjoy the same social and tax advantages as national workers. They enjoy the same social protection rights as EU migrants save for minor exceptions.
The EU regulations on social security make provisions and benefits for frontier workers. They are guaranteed advantages that other migrant workers do not enjoy such as cross-border access to healthcare.
Taxation of Frontier Workers
Tax arrangements for frontier workers are subject bilateral agreements signed between the EU states to avoid double taxation. The OECD model applies to relief of double taxation of employment income. In addition, most states including Ireland have introduced special reliefs such as transborder worker relief.
The general rule laid down in the OECD model for a person resident in one State but working in another is that taxation applies in the state where he or she works. However, the specific provisions concerning cross-border workers in bilateral double taxation treaties usually grant the right of taxation to the State of residence rather than the State of the place of work, when the person concerned lives in the frontier region of one State and works in the frontier region of another, provided that the person concerned returns home regularly. If the place of residence and/or that of work are located outside the frontier zone, by contrast, the income from work is taxed at source, i.e. in the country of work.
In the latter case, the frontier worker’s employer deducts, for the benefit of the State of employment, the amount of tax due according to the system laid down by that country’s tax legislation. If the household has other sources of income in the country of residence, in particular as a result of work by the spouse, the ‘effective rate’ rule may be applied: the State of residence than reserves the right to take into account the amount of trans-national remuneration when calculating the effective rate of tax payable on the other income of the person concerned.
In the specific case of frontier workers, the burden of public expenditure falls on two States, while the resources, stemming from income tax, in principle accrue only to one of them under the agreements to avoid double taxation.
In these circumstances, cross-border tax equalization entails the sharing of tax resources to eliminate the imbalance between the expenditure and resources of the local authorities located on both sides of the border which are affected by the problem of frontier workers.
Rights of Cross-Border Workers
A cross-border worker, employed, or self-employed person’s social security rights mainly depend on the country where he works. He or she enjoys the same rights as colleagues concerning sickness benefits, maternity and paternity benefits, invalidity, old-age and survivors’ pensions, insurance against accidents at work and occupational diseases, death grants, early-retirement, and family benefits.
With regards to claiming job seeker benefits there are special rules for frontier/cross border workers:
- Frontier workers who are wholly/fully unemployed e.g. made completely redundant, receive benefits in the state in which they live.
- Frontier workers who are partially or intermittently out of work (e.g. reduced working hours) receive unemployment benefits in the state where they were last employed. In the absence of any contractual link with the employer, they are treated as fully unemployed. Where there is no resumption date they are treated as fully unemployed
Withdrawal Agreement Protections
Under the Withdrawal Agreement workers in the home state and frontier workers in the state of work enjoy the rights guaranteed by the Treaty including
- Right not to be discriminated against on the grounds of nationality as regards employment remuneration and other conditions of work and employment
- Right to take up and pursue an activity in accordance with the rules applicable to nationals of the host state or state of work
- right of assistance by the employment offices of the host state of work as offered to its own nationals
- right to equal treatment in respect of conditions of employment and work in particular as regards
- remuneration dismissal and the case of unemployment reinstatement re-employment
- rights to social and tax advantages
- collective rights generally
- the rights and benefits accorded to national workers in matters of housing
- rights for children to be admitted to the general education apprenticeship and vocational training courses of the same conditions as nationals of the host state if such children are residing in the territory where the worker works
Where a direct descendant of a worker who has ceased to reside in the host State is in education in that State, the primary carer for that descendant shall have the right to reside in that State until the descendant reaches the age of majority, and after the age of majority if that descendant continues to need the presence and care of the primary carer in order to pursue and complete his or her education.
Employed frontier workers enjoy the right to enter and exit the State of work in and shall retain the rights they enjoyed as workers there, provided they are in one of the circumstances in the Citizenship Directive, even where they do not move their residence to the State of work.
Rights of self-employed persons
Self-employed persons in the host State and self-employed frontier workers in the State or States of work l enjoy the rights guaranteed by the EU Treaty These rights include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under the conditions laid down by the host State for its own nationals, as set out in the EU Treaty.
Issuance of a document
The State of work may require Union citizens and United Kingdom nationals who have rights as frontier workers under this Title to apply for a document certifying that they have such rights under this the Withdrawal Agreement. Such Union citizens and United Kingdom nationals shall have the right to be issued with such a document.
The Withdrawal Agreement also provides for the recognition in the host state before the end of the transition period of professional qualifications under the qualifications directive of UK nationals in the EU and UK nationals in the UK and their respective family members.
The broad EU qualifications provisions apply. There are certain coordinated fields where there is automatic recognition and other areas where there is recognition is based on experience and/ or qualifications with the possibility of compensating aptitude and or experience requirements.
Mutual recognition of professional qualifications
The UK and the EU have agreed that EU professionals resident or frontier working in the UK, or vice versa, will continue to have their professional qualifications recognised, where they obtained or applied for a recognition decision before the end of the implementation period.
This will cover the European Professional Card, qualifications recognised under the Professional Qualifications directive for the purpose of establishment (but not for the temporary and occasional provision of services), lawyers practising under host state title, approved statutory auditors, and persons engaged in the trade and distribution of toxic products.
Coordination of social security systems
EU Regulations on social security coordination will continue to apply across the whole of the UK at the end of the implementation period for individuals in the scope of the Withdrawal Agreement. This will ensure that citizens who have moved between the UK and the EU before the end of the implementation period are not disadvantaged in their access to pensions, benefits and other forms of social security, including healthcare cover. The Withdrawal Agreement also provides protections in several other circumstances, such as where a UK national, although not living in the EU at the end of the implementation period, has paid social security contributions in a Member State in the past. The rights that flow from those contributions such as benefits, pension, and reciprocal healthcare rights will also be protected.
Member States will be required to take into account contributions paid into their respective social security systems by individuals within the scope of the Withdrawal Agreement. As now, the amount of State Pension to which those individuals will be entitled as a result of the contributions will be determined according to each state’s social security legislation.
Withdrawal Agreement Extract
Persons who are in the scope of the Withdrawal Agreement for full social security coordination purposes will also continue to benefit from the coordination rules, for as long as they remain within the scope of that section. This will ensure that the worker (and their employer) only pay into one social security system at a time and that the right to aggregate both contributions paid, and periods of insured residence completed, to meet different states’ benefit entitlement conditions continues. This includes all contributions made both in the UK and the EU before and after the implementation period, and the rules will also protect the rights that flow from such contributions.
Where the UK, or a Member State, is responsible for the healthcare of those within the scope of the social security coordination part of the Withdrawal Agreement, such individuals will be entitled to reciprocal healthcare cover from their competent country.
The Withdrawal Agreement will also protect the rights of individuals who are in a cross-border situation, (for example a UK national who is in an EU Member State for a holiday or for the duration of a course of study) at the end of the implementation period, and who are entitled to a UK European Health Insurance Card (EHIC), to continue to benefit from that scheme for as long as that cross border situation in the state they are in continues.
The Withdrawal Agreement also protects the rights of people visiting the UK or the EU for planned medical treatment, where authorisation was requested before the end of the implementation period, so they can commence or complete their treatment. This guarantees that patients will be able to complete a course of treatment and provides the certainty that patients need during a vulnerable time in their lives.