Iain Halliday

Santa lives in Lapland, in Finland, so we can presume he is a Finnish (and therefore EU) citizen. At the moment he enjoys freedom of movement throughout the EU. He can come to the UK to visit for up to 3 months, and to deliver services as a self-employed person for an unlimited period of time.

The UK will not leave the EU until 31 January 2020 at the earliest, so Christmas 2019 will be no problem. Santa’s elves can continue making presents in his workshop in Lapland, safe in the knowledge that there will be no customs or immigration barriers preventing delivery of those presents to the UK. At the moment Santa does not need a visa to come to the UK to work; he is not subject to immigration control and can enter at any time (and by any means) without breaking the law. He is required to remain economically active if he wishes to stay for longer than three months, and may be required to leave if he is not working or self-sufficient. However he cannot be forced to comply with any additional requirements over and above these prerequisites of EU free movement law.

Christmas 2020 is a little less certain. In the event of a no-deal Brexit on 31 January 2020, EU citizens wishing to come to the UK after that date will be subject to immigration control. Theresa May originally planned that EU citizens would be granted a three-month visa at the UK border and would need to apply for European Temporary Leave to Remain, which would last for three years, before the end of that three-month period. This would cause a problem from Santa, who tends not to enter the UK through border control. Thankfully, when he took over the leadership of the Conservative party (and by default the country), Boris Johnson changed this.

The current plan is that EU citizens will continue being able to enter the UK without a visa until 31 December 2020 (by which point they will have to have applied for European Temporary Leave to Remain or have left the UK). This won’t be a problem for Santa, who is unlikely to hang around in the UK after completing his deliveries. He should, however, keep an eye out for any future changes. This is all just policy so can change (and has changed) at short notice. If the Withdrawal Agreement is concluded, free movement will continue in its current form until 31 December 2020.

So either way, Christmas 2020 should hopefully come and go without a hitch. Things are not looking quite so rosy for Christmas 2021. By this time the transitional period will have ended and the UK’s new immigration system will be in place. Santa will need a visa to come to the UK. If he enters the UK in the usual way, in his sleigh pulled by reindeer, he’ll be guilty of a criminal offence and could be sent to prison for up to six months. Avoiding border control and entering the UK by other means is not permissible. There are exceptions for people who are members of the crew of a ship or aircraft. However these provisions would be of no use to Santa as they do not permit the crew to deliver goods once in the UK. There’s also no provision for reindeer sleighs.

To avoid committing the criminal offence of illegal entry, Santa would need to be granted a UK visa allowing him to enter the UK. The most appropriate visa would probably be a visit visa. In order to obtain a visit visa, he would need to enter the UK through an air or sea port and speak to an Immigration Officer (or pass through an e-gate). Gone are the days of flying through the skies, landing on rooftops, and sliding down chimneys. The reindeer will need to stay at home after Brexit.

Entry as a visitor is far from guaranteed. Work is generally prohibited with a visit visa. However some “business activities” are permitted, providing no payment will be received from a UK source for the activities. One such activity is “a driver on a genuine international route delivering goods or passengers from abroad to the UK”. However, the visit visa rules require the driver to be “employed outside the UK”. Santa has no employer. He’s his own boss. So entry under this category would be uncertain. There are no other suitable visa categories. So Santa will need to hire a UK based distributor or courier company to deliver the presents around the UK (or perhaps send an elf, who would be an employee). All of these options would incur additional expense. Santa may just have to miss out the UK after Brexit.

What about the presents?

All of this just concerns Santa’s ability, as a self-employed person, to enter the UK for a short period to deliver the presents. I haven’t even got to the restrictions on the presents. Santa would need to hire a trade lawyer for that. Needless to say, once the free movement of goods comes to an end, all of the presents would have to pass through UK customs and any import tariffs paid. The precise details will depend on what, if any, future trade deal is agreed between the UK and the EU (the Withdrawal Agreement covers only the process of leaving the EU, we haven’t event started negotiating the agreement which will govern our future relationship!).

After Brexit, Santa, and any other EU citizen who wants to deliver goods to the UK, can no longer be sure that they will be able to do so without restrictions. This is what happens when you bring an end to free movement of goods and people. Never mind though, on the upside we will have “taken back control” – whatever that means!

Iain Halliday is an associate at McGill & Co