Remote working has become the new norm due to the recent Covid-19 pandemic. Many businesses across the globe have introduced work from home measures and have adapted their processes to accommodate this.
The practical aspects of remote working should be carefully planned, and companies/individuals should be wise to the wider legal implications – particularly when employees are to work remotely from a foreign country.
In such scenario, the first and most vital step is ensuring that one has the appropriate legal right to work in the foreign county they will be working in.
Hong Kong
The usual route for foreign nationals looking to work in Hong Kong is to obtain a visa under the General Employment Policy (GEP). Whilst it is technically possible for a foreign company to sponsor a foreign national’s visa under the GEP, it is difficult as the specific criteria that must be met includes:
- the foreign company being registered with the Companies Registry;
- the foreign company having secured a business registration certificate from the Commissioner of Inland Revenue;
- providing evidence that the foreign company’s business activity will be able to make a substantial contribution to the Hong Kong economy; and
- providing evidence that the foreign national possesses special skills, knowledge and experience that are in need in Hong Kong and cannot be provided by a Hong Kong local.
Currently, there is no specific remote working visa in Hong Kong, such as a digital nomad visa. Foreign nationals employed by foreign companies who are not able to obtain a visa under the GEP will be able to work as visitors in Hong Kong, but only for certain limited activities. Please see: Permissible Activities for Visitors | Immigration Department (immd.gov.hk).
On 28 December 2022, the Top Talent Pass Scheme was introduced which enables graduates of the world’s top 100 universities with annual incomes of HKD2.5 million or above to obtain a Hong Kong visa for up to two years. A Top Talent Pass Scheme visa only has a time limitation and carries no conditions of stay, meaning a visa obtained via this route would enable an individual to work remotely in Hong Kong for a foreign company.
Of course, many will not fulfil the criteria for the Top Talent Pass Scheme, but there are other visa options open to foreign nationals depending on their specific circumstances. These include but are not limited to Investment as Entrepreneur visa, the Quality Migrant Admission Scheme, Residence as Dependants and one should keep an eye out for the reintroduction of the Capital Investment Entrant Scheme.
UK
There is no visa to accommodate remote working for a foreign company in the UK. To obtain a work visa, an individual must be sponsored by a trading UK company for an eligible role. The company must be an approved sponsor by the UK Visas and Immigration Agency.
Similar to Hong Kong, remote working is permitted, to an extent, for visitors to the UK. Permitted remote working activities vary depending on the sector that the visitor is working in:
- General Business – meetings, conferences, interviews, deals, site visits.
- Intra-Corporate – advise, trouble-shoot, train.
- Goods – install, dismantle, repair, service.
- Sector Specific – legal (expert witness), creative (performance, sports (tournament).
The overall purpose of the trip will be considered. The person cannot be entering the UK with the intention of working remotely for an extended period or through frequent or successive visits.
Practically speaking, global companies should not be sending their employees to remotely work from the UK, unless they fall within the visitor exceptions.
Of course, many in Hong Kong are British Nationals (Overseas) (BNO) citizens. BNO citizens and their family members can apply for BNO visas which entitles eligible persons to stay for either 2 years and 6 months or 5 years. During such stay individuals are free to work and study, meaning working remotely would be an option.
EU
Due to the free movement of labour within the EU, EU nationals can freely work within each EU county. If a non-EU remote worker is looking to work within an EU country for a foreign company not in the EU, they will be subject to that individual EU country’s immigration laws.
- France
If a non-EU foreign national is located in personal accommodation in France, not at any premises of a company in France and does not perform any productive work for a company located in France or any activities linked to a company on France, they are authorised to work remotely from personal accommodation under “visitor” status.
- Portugal
Portugal has 5 types of visas open to those looking to work remotely: the Temporary-Stay Visa (allows holders to live and work in Portugal for up to one year); D7 Passive Income Visa; The D2 Entrepreneur Visa; the Portugal Golden Visa; and the short-stay tourist visa (90 days). The most appropriate visa will depend on an individual’s specific circumstances and intentions.
- Belgium
Remote working in Belgium is considered working: work permit exempt activities are allowed; for other activities a work permit (short term) will be required.
- Germany
Non-EU nationals coming to Germany as a business visitor are permitted to work remotely for their foreign employer (e.g. from a computer) in their accommodation. Freelancers and creatives may obtain long-term residence permits.
- Croatia
Croatia offers a digital nomad visa that allows non-EU nationals to work in Croatia from six months to a year, with the option to reapply on expiry provided the individual has left the country for 90 days since their visa expiry date.
- Italy
Italy does not have any specific provision regarding remote working, however they are set to launch a digital nomad visa within the coming year. In the meantime, the Italian Self-employment Visa can be considered.
- Spain
In January 2023, Spain launched their Digital Nomad Visa, allowing remote workers and freelancers to live and work in Spain for up to one year and renew the visa for up to five years.
- Estonia
An individual working as a freelancer or for a foreign company can utilise a digital nomad visa which allows such individuals to live and work in Estonia for up to one year.
USA
Currently there is no specific remote worker visa that allows for foreign nationals working for a foreign company to remotely work in the USA. Any income earned in the USA is deemed as “US source income”, therefore a remote worker in the USA would be considered a self-employed individual and would need authorisation from the USA government to work remotely.
Corporate considerations
Companies should be wary of the tax implications, particularly if having an employee working abroad could lead to the company having a “place of business” abroad. A “place of business” will likely establish a tax connection within that country, leading to incomes taxes and sales taxes. Whether a foreign entity has established a “place of business” within a country, will depend on the specific country’s laws. Various factors can influence whether a “place of business” can be found, widely speaking these include:
- Whether the worker is an employee or consultant
- The role of the employee
- Where the worker is working
- The visa status of the worker
- The length of time the worker is working in the jurisdiction.
A remote worker may be liable to tax in their local jurisdiction as well as in the overseas jurisdiction they are working in. If there is a double tax treaty between the local jurisdictions and the overseas jurisdiction, relief from double taxation may be available provided the prescribed conditions in the double tax treaty are fulfilled.
Although tax implications are the main concern. Regard should also be given to:
- Foreign employment law applicability
- Local health & safety obligations
- How the individual’s insurance cover is affected
- Compliance with foreign data protection rights
Examples of countries who have introduced remote working practices
- United Arab Emirates
The Remote Working Visa scheme permits foreign nationals to work in the U.A.E for their overseas employer for up to one year.
- Barbados
Foreign nationals can remotely work in Barbados for one year through the Barbados Welcome Stamp.
- Cayman Islands
The Global Citizen Concierge Program allows foreign nationals to work remotely for a foreign employer for up to two years.
- Bermuda
Bermuda offers a digital nomad visa through a “One Year Residential Certificate”, which allows foreign nationals employed abroad, freelancers, students, etc, to work in Bermuda for one year. After one year, individuals can re-apply for an additional year.
- Mexico
The Temporary Residence for Remote Worker visa allows foreign nationals to remotely work in Mexico for one year and can be renewed for up to four years.
- Costa Rica
Costa Rica currently offers a Digital Nomad Visa, allowing foreign nationals to live and work in Costa Rica for one year, this can be extended for one additional year.
Final considerations
One has a right to be excited by the prospect of working abroad and the possibility of doing so is becoming reality for many people in more and more places. Whether you are an individual who wishes to work abroad or a company with employees working abroad, it is paramount that immigration laws are complied with. Violations of such can lead to serious consequences. In Hong Kong, immigration violations carry criminal liability.
Individuals should ensure that they comply with local laws and, where necessary, obtain appropriate legal advice.
Every situation is different and needs bespoke advice, so please do not hesitate to contact our Employment & Immigration team for specific enquiries.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
