Introduction: Expatriates vs. Displaced Persons
The increasing mobility of people in the provision of labour services or in the development of independent activities in different countries, as well as the need for companies to send staff to foreign markets, has given rise to the terms “posted” and “expatriate”, as we will see below.
An “expatriate worker” is an individual who, having signed an employment contract with a company in a given country, is assigned, either on a temporary or indefinite basis, to provide labour services in the territory of another country. Generally, a worker hired under an employment contract will be assigned to a foreign country and will be discharged from the social security system of origin, in order to be registered in the host country, assuming obligatory social security coverage.
A “posted worker” is a worker who, having been hired to work on a regular basis in a specific country, is temporarily assigned to provide labour services in another country. Generally, a worker is posted for a specific purpose or mission and for a defined period of time, where the worker remains affiliated to the social security system of his or her country of origin.
Applicable legal regime
According to Article 13 of Regulation EEC 1408/71, workers who move within a Member State of the European Union are subject to the social security regulations of the country where they provide services and are no longer covered by the social security system of their country of origin. However, they are allowed to work in another EU country for a maximum period of 2 years, and continue to be covered by the Social Security of origin, being considered posted workers.
If the destination country is outside the EU, and there is an international social security agreement between the two countries, the worker will be subject to the provisions of that agreement. If there is no agreement, the workers will be considered to be in a situation similar to registration and, therefore, they will have to pay contributions in the country of origin for all contingencies that the destination country does not cover.
With regard to taxation, there are three possibilities:
- Taxation in the country of destination, which will imply acquiring the status of tax resident in that country. In this case, the worker will be exempt from taxation in the country of origin as long as there is an agreement to avoid double taxation between the two countries.
- Remain a tax resident in the country of origin and therefore continue to be taxed. This applies if the worker resides at least 183 days a year in the country of origin or can prove that his or her centre of economic activity remains in that country.
- Taxation in both the country of destination and the country of origin, only if there is no agreement between the two countries to avoid double taxation.
In addition, Directive 96/71/EC of the European Parliament establishes the minimum conditions that employers must guarantee their workers, such as salary, working time, health, safety and hygiene and equal treatment. In the case of Spain, the directive has been transposed by Law 45/1999 of 29 November 1999 on the posting of workers in the framework of the transnational provision of services.
International telework and digital nomads
Digital nomads are people whose jobs allow them to work remotely and change residence frequently, combining high-skilled work with immersive tourism in the country of residence.
In Spain, non-EU foreigners can apply for a residency based on international teleworking. This allows them to carry out a work or professional activity at a distance for companies established outside the country, using exclusively computer, telematic and telecommunication means and systems.
When the applicant is outside Spain, he/she may obtain a permit to reside and work throughout the national territory, for a period of 1 year, unless the period of work is shorter, in which case the visa will have the same duration, and when the applicant is legally in Spain, he/she may obtain a 3-year permit to reside and work throughout the national territory, if he/she so wishes.
Special case of workers: United Kingdom after Brexit
Companies established in Spain that have workers temporarily posted to the UK or Gibraltar before 1 January 2021 must continue to apply the UK legislation transposing Directive 96/71/EC on the posting of workers in the framework of the provision of services during the period of posting of workers during that period.
For workers of companies established in the United Kingdom posted to Spain before 31 December 2020, they may, as from 1 January 2021, remain in Spain and continue to provide such services, without obtaining prior authorisation for residence and work, until the end of the expected duration of the posting. However, from 1 January 2021, workers of companies established in the United Kingdom who are posted to Spain must obtain the visas or residence and work authorisations required under Spanish immigration law, a situation applicable to other EU member states.
In addition to complying with the relevant regulations and the particular ones mentioned in this article, expatriate workers have the option to negotiate optional arrangements with their companies. In general, these companies offer additional compensation to people who move out of their country, such as fringe benefits, and other aspects are usually taken into account, such as financial supplements depending on the country of destination, housing allowances, health insurance, and support for the education of children.
At Navas & Cusí, lawyers specialising in International Law, we will accompany and advise both the company and the employee in the procedure for the posting of workers to a country within or outside the EU, with a team of experts in this area of law.