Immigration solutions to working in the UK territorial waters

Since 12 April 2023, UK immigration law has clarified that all “offshore workers” require to hold appropriate UK immigration permission to work in the UK territorial waters, with there now being a specific definition of who is considered an “offshore worker” for immigration purposes.

The previous position

Whilst the jurisdiction of UK immigration law has always applied to the UK landmass, and the UK territorial waters (that is 12 nautical miles from the coastline and all internal waters), previously, there were instances where crew members of ships could be exempt from UK immigration laws, where for example, they did not disembark from the vessel. This meant that there was scope for them to come to the UK temporarily, without necessarily requiring UK immigration permission to do so.

Implications of the changes

However, these individuals are now likely caught by the new section 11A of the Immigration Act 1971, which defines an “offshore worker” as:

• someone who arrives in UK waters;
• for the purposes of undertaking work in those waters; and
• without first entering the UK (e.g. going through UK passport/ border control)

Anyone who falls under the definition of “offshore worker” is no longer exempt from UK immigration laws, whether they disembark or not. In other words, they now explicitly require to have permission to come to work in the UK territorial waters, bringing them in line with everyone else who enters via the UK landmass. In addition, it means that offshore workers, or their sponsor if they have one, are required to notify the Home Office.

In practice, this poses greater issues for offshore businesses, who now need to consider what immigration options are open to them and indeed whether it remains feasible and cost effective for them to operate UK projects.

This might be problematic since there is no longer an Offshore Worker visa category available which was beneficial where operations took place on the UK Continental Shelf (and beyond), where UK immigration laws don’t apply, and also in the UK territorial waters. It has since been replaced by the UK Continental Shelf Worker visa category which would allow individuals to base themselves in the UK, but not to work in the UK (territorial waters).

Possible solutions

In limited circumstances, it may be possible for individuals to carry out prescribed “permitted activities” under the Visitor rules. This won’t be suitable for every individual and will be entirely fact-dependent to determine whether the work will qualify under “permitted activities” or not. However, it could be a good option as it is possible to spend up to 6 months in the UK, and unless an individual is considered a “visa national”, there is no need to apply for a visa.

For longer term projects, or where the Visitor route does not fit, the Skilled Worker route and Global Business Mobility: Senior or Specialist Worker (former Intra-Company Transfer) route may be viable. Both require there to be a UK employer/ sponsor and various other stringent requirements also need to be met such as there being an appropriate “job code” to sponsor the role under and paying the appropriate minimum salary rate – the starting point which is usually £26,200 or £45,800 gross per annum respectively. Whilst the Skilled Worker route might potentially be more attractive, there is an English language requirement which needs to be met, and this is not always achievable by otherwise skilled individuals. Conversely, the Senior or Specialist Worker route has no English language requirement so can be more attractive, but there are less jobs which can be sponsored compared to the Skilled Worker route.

Where an overseas business wishes to expand into the UK for the first time, the Global Business Mobility: UK Expansion Worker (former Sole Rep) route may be viable. It is quite time intensive as there is a need to prove the overseas business is genuinely trading and it will only be possible to initially send one individual to the UK, with scope to eventually send up to 5 in total.

The Frontier Worker permit may also be a viable option specifically for EU nationals. This broadly requires that the individual lives outside the UK and that they commenced working in the UK before 31 December 2020. They also need to have worked at least once in the UK every year since.

Other options may be available and will ultimately depend on business needs and the circumstances of each individual coming to the UK. For further advice on offshore workers, or to discuss any other UK immigration issues, please contact our immigration team directly immigration@burnesspaull.com.