One year on, artists are still struggling with the legal complexities around performance in the UK. Gary McIndoe explains the details.
For much of 2021, travel to the UK and live performances here were put on hold due to the Covid. Since international borders began to reopen in summer, performers have experienced a new obstacle.
This is the impact of Brexit, which took full effect at 23:00 GMT on 31 December 2020. Since then, the concept of free movement for EU nationals has been lost in the UK, leaving EU arts professionals to navigate a complex post-Brexit immigration system.
EU and non-EU migrants are now treated equally under the UK immigration rules. If travelling for a short period of time, permission to enter as a visitor is needed. If planning a longer stay, formal sponsorship might be necessary.
EU nationals still have a slight advantage in applying for travel documentation as they are not visa nationals. This means that for short visits, they can arrive in the UK and request entry at the border, rather than needing a visa before travel.
What are the rules for arts professionals visiting the UK from the EU?
All visitors arriving in the UK must satisfy relevant immigration rules. This means:
- having a genuine intention to visit the UK, not to live here;
- only intending to carry out activities permitted by their documentation;
- not receiving payment from a UK source, unless expressly permitted to do so.
There is a wide range of activities available to arts professionals entering the UK as visitors:
- giving performances as an individual or as part of a group;
- taking part in competitions or auditions;
- making personal appearances and taking part in promotional activities;
- taking part in one or more cultural events or festivals on the Home Office list of permit-free festivals;
- being a member of personal or technical staff, or a member of the production team of an artist, entertainer, or musician, and supporting the activities outlined above (must be employed to work for the artist outside of the UK);
- being a member of a film crew (actor, producer, director, or technician) employed by an overseas company to take part in a location shoot for a film or programme or other media content that is produced and financed overseas.
Which engagements can be paid?
The difficulty for most travelling arts professionals is that under the standard visitor rules, direct payment for all these activities is prohibited. There are two express permissions for payment in the UK:
- performing at one of the Home Office permit-free festivals;
- completing a permitted paid engagement.
Permit-free festivals are limited in number. Where a festival is included on the Home Office list (examples include Glastonbury, the Cheltenham festivals, the Edinburgh festivals), the arts professional may take part in the event and be paid for their attendance. No additional sponsorship or permissions are needed, and the individual may attend several festivals from the list in a single UK trip lasting not longer than six months.
Permitted paid engagements involve events which do not feature on the permit-free festival list. They also allow payment for participation, but the individual must meet additional specific requirements:
- the engagement must be arranged before travelling to the UK and declared either as part of a visa application (visa nationals) or when requesting permission to enter the UK at border (non-visa nationals);
- the engagement must be evidenced by a formal invitation from a creative (arts or entertainment) organisation, agent, or broadcaster based in the UK;
- the engagement must relate to the applicant’s area of expertise and occupation overseas – this means that the individual must be a paid arts professional already.
Permitted paid engagement is a good route for professional artists and performers to continue working in the UK post-Brexit, but it does not help amateurs or some of those at a very early stage of their career. The permission granted to a permitted paid engagement visitor is also very limited. While the traveller can complete several engagements in a single trip, the maximum time in the UK is one month per entry.
In addition to the restrictions applying to people entering the UK, cabotage and associated rules relating to equipment are just as complex. Arts professionals with multiple engagements in the UK can find it difficult to make adequate arrangements to transport equipment to several venues, although even travel for a sole engagement can require significant preparation.
What rules apply for longer-term performance engagements?
While the options for short-term visitors are helpful and can cover many arts events in the UK, they do not replace the liberty of pre-Brexit free movement. Longer engagements, or engagements that fall outside the scope of the payment exceptions above, must be arranged under more complicated immigration rules.
This is where sponsorship by a UK organisation may be essential. Sponsorship allows a person to travel to the UK for the specific purpose of working and receiving payment here. The sponsoring organisation is often the one that has directly engaged the individual, but not always. In the arts context, it is permissible for another related entity (such as an agent or a promoter) to act as sponsor.
Sponsorship is more formal than the visitor route and usually requires a visa application before travel (although there is an exception when the traveller is engaged in the UK for no more than three months and is a non-visa national). This route – called Creative Worker – allows a lot more flexibility than the visitor options outlined above.
Sponsorship is cumbersome
The downside to sponsorship is that it can be complicated. The creative worker needs a licensed sponsor in the UK who can assign them a Certificate of Sponsorship. The sponsor needs to justify sponsorship of the individual, confirming their necessity to the production and that the level of their salary is suitable.
Codes of Practice agreed with various arts sectors govern this assessment. The worker will be restricted to activity confirmed on the certificate and cannot deviate from this without permission. Time in the UK as a creative worker is also limited to 12 months. Overall, the sponsorship process is cumbersome for UK organisations, requiring much more involvement and responsibility, as well as additional cost.
While post-Brexit performing for EU citizens remains possible, it is much more complex than the system in place before 2021. Arts professionals should research requirements before travel and prepare carefully where documents are required.
Gary McIndoe is Managing Director of Latitude Law.