Will Santa Be Allowed to Enter a Post-Brexit UK This Year?
By Gary McIndoe, U.K. Immigration Solicitor
Santa Claus, Father Christmas, Saint Nicholas, or Kris Kringle; whatever you call the jolly man in red at Christmastime, we can all agree on one thing; he is magic. Travelling the entire world in just one night, he delivers presents to good children and demands nothing in return (although he will gratefully accept offerings of refreshment).
The origins of Santa Claus are uncertain. Some trace him back to modern-day Turkey, others to Dutch folklore. There are those who swear that he lives in Lapland, more claim his base is the North Pole.
Ho-Ho-Home Office has the final say
Does it matter? Maybe; the Ho-Ho-Home Office determines the permission a person needs to enter the UK starting with their country of origin. If we assume that Santa is European (that would cover origins in Scandinavia including Finland, the Netherlands,) or perhaps from North America (covering Greenland, arctic areas of Canada, even New York, where our understanding of Santa originates), then he will be a non-visa national. This means travel to the UK is permitted for short trips without obtaining a visa in advance. If Santa’s true nationality is something else — Turkish, as many believe — unless he holds a diplomatic passport, a visa is needed before arrival at the UK border.
We never see Santa come through passport control but let us assume he is a law-abiding citizen who makes sure to comply with UK Border rules. On what basis is he then admitted to the UK? Is he complying with the restrictions of any permission he is granted? We looked at this issue in brief last year, but since then Brexit has taken effect and much has changed in UK immigration law. How is Santa staying within the rules in 2021?
Travelling for business activity
Santa travels to the UK for business activity, and that is tricky because such activities are heavily restricted, especially for visitors; providing goods and services to the public is expressly prohibited, for example. There are exceptions for “drivers on a genuine international route between the UK and a country outside the UK,” allowing for delivery of goods and/or cabotage operations. However, these drivers “must be employed or contracted to an operator registered in a country outside the UK or be a self-employed operator and driver based outside the UK and the operator must hold an International Operators Licence or be operating on an own account basis.” If Santa does not meet these requirements — even if he is accepted as a “driver” on a “genuine international route” — then his activities in the UK cannot validly be conducted as a business visitor.
Santa does not receive UK payment, although arguably he receives support towards his subsistence in the UK via donations from individual households. This is acceptable under UK visitor rules providing there is a genuine personal or business relationship between Santa and the person making the donation. That must be the case; Santa knows when we are sleeping and when we’re awake, which is a clear indication of a genuine relationship.
Frontier Worker Permit Scheme
What to do if Santa’s business activities fall outside the permitted scope of the visitor route? In December last year the UK introduced the Frontier Worker Permit scheme. This could be a good option for Santa. He should be eligible if it is accepted that he is from the EU, Switzerland, Norway, Iceland, or Liechtenstein; he is based outside the UK; he began working in the UK by 31 December 2020; and he has undertaken effective work in the UK at least once every 12 months since he started working here. None of this should present a particular difficult to our Saint Nic. However, Home Office guidance confirms that evidence of work, such as a contract, is required; and to be genuine and effective, Santa’s activity should not be “marginal or ancilliary” requiring little time being spent in the UK. As his work in the UK is logically concluded within an hour or two at most, this is where his case may flounder. He should also be paid — benefits in kind such as mince pies and carrots wouldn’t be sufficient.
What if I’m not European?
So, we may have found workable options for a European Santa, but what about other nationalities? They cannot benefit from the Frontier Worker Scheme, so unless their activities can be restricted to those expressly permitted under the visitor rules, there are limited options. Formal sponsorship feels excessive for activities which only cover one night of the year, and who would act as Santa’s sponsor in the UK? The Queen maybe, but she does not appear to have a sponsor licence already, and delivery drivers are not sufficiently highly skilled for sponsorship.
Temporary migration routes
The government could step in. In the past few months, we have seen the introduction of temporary migration routes for HGV drivers, some farmers, and abattoir workers. A similar approach could see a special time-limited category for Santa Claus alone, although it would be better to have a long-term option that could be used every year.
Santa has always found a way to get the job done in the past, so I am not worried about whether he will be visiting homes in the UK this Christmas. As the song goes, everybody’s waiting for the man with the plan, and I am sure Santa has his visa issues covered.
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The author is an English-qualified solicitor with more than 30 years’ experience advising corporate and private clients on UK-inbound mobility. Reach out to Gary and request a consultation today.
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