According to the European Commission's preparatory document of 6 October 2020 on the posting of workers, as from 1 January 2021, workers of companies from the United Kingdom or the European Union already posted to the territory of the European Union or the United Kingdom respectively will no longer be covered by Directive 96/71/EC.
This means that their right to continue to provide services after the end of the transitional period will depend on the law of the country where the worker is posted, i.e: for workers posted to the United Kingdom, on the national law of the United Kingdom; and for workers posted to the European Union, on the law of the European Union and the national law of the Member States of the European Union, without the posted workers generally being considered as beneficiaries of the withdrawal agreement.
In this respect, workers posted to Spain by a company established in the United Kingdom before 31 December 2020 may, from 1 January 2021, remain in Spain and continue to provide their services without obtaining prior authorisation to reside and work (Article 6 of Royal Decree Law 38/2020 of 29 December, adopting measures to adjust the United Kingdom of Great Britain and Northern Ireland to the status of third country following the end of the transitional period provided for in the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community of 31 January 2020) provided that the United Kingdom grants similar treatment to workers posted in the United Kingdom by an undertaking established in Spain.
However, if an extension of the duration of the posting originally planned and communicated to the employment authority is necessary, a residence and work permit must be applied for. The national employment situation does not apply and no visa is required.
In addition, workers from companies established in the United Kingdom who are posted to Spain from 1 January 2021 must obtain the necessary visas or residence and work permits as provided for in Spanish immigration law.
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