Doing Business in the UK

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Piers Barrett
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1 Doing Business in the UK Immigration Considerations Annabel P. Mace Supinder S. Sian

2 Introduction Representative of an Overseas Business/Sole Representative Visa Tier 2 of the Points Based System Tier 1 Investor Tier 1 Entrepreneur Business Visitors Q & A 2

3 Sole Representative Visa Key Criteria For an established overseas entity intending to send a non UK/EEA national to establish and operate a wholly-owned subsidiary or branch in the UK The UK branch or subsidiary must operate in the same type of business as the overseas entity The individual should: be an existing senior employee of the overseas entity (but not a majority shareholder); have full authority to take operational decision's on the overseas entity s behalf in the UK and intend to work full time for it in the UK; and provide evidence that they meet the required standard in English language and maintain and can accommodate themselves without recourse to public funds. A sole representative visa can only be issued prior to establishing the UK entity subsequent visas would need to be issued under Tier 2 of the Points Based System. 3

4 Sole Representative Visa Process Application submitted to the British Embassy or Consulate in the individual s normal country of residence prior to the individual travelling to the UK to take up their post. Various documents needed in support of the application including but not limited to: full description of the overseas entity s activities including details of its assets, accounts and share distribution for the previous year; sworn statement from overseas entity confirming criteria and applicant s suitability; the individual s contract of employment with the business outside the UK. Application can normally be fast tracked within a week Initial visa granted for 3 years and applicant can bring dependent spouse/partner and children 4

5 Sole Representative Planning For an Extension In order to be able to obtain a 2 year extension of the sole representative visa beyond the initial 3 years leave, the overseas entity would need to show that: it still has its headquarters and principal place of business outside the United Kingdom; the Sole Representative is employed full time as a representative of the overseas entity and is still required for the employment in question; the Sole Representative has established and is in charge of the overseas entity s branch or wholly owned subsidiary in the UK registered with Companies House; the Sole Representative has generated business on behalf of the bank, principally with businesses in the UK; and the Sole Representative can maintain and accommodate himself and any dependants adequately without recourse to public funds. After 5 continuous years in the UK, Sole Representative may qualify to settle in the UK permanently. 5

6 Tier 2 of the Points Based System - Overview Once a branch or subsidiary is established, the UK entity can apply for apply for a Tier 2 Sponsor Licence. Once granted, the sponsor licence (which is valid for 4 years) will enable the UK entity to issue Certificates of Sponsorship (CoS) to eligible non-eea staff who can then obtain visas from abroad before travelling to the UK to take up a post with the UK entity. CoS can only be issued for roles skilled to NQF Level 6 or above (graduate level upwards) and with minimum prescribed salary (starting at 24,300) Tier 2 (General) CoS usually requires advertising to fulfil resident labour market test (RLMT) individual must fulfil specific English language requirement can lead to permanent residence Tier 2 (ICT) CoS no RLMT but usually requires 12 months service with linked overseas entity cannot lead to permanent residence 6

7 Tier 2 of the Points Based System Obtaining a Licence To obtain a sponsor licence, established UK entity would need to: collate certain official corporate, tax and regulatory documentation to show that it is established as an employer in the UK and links with overseas entities; appoint certain key personnel for the purpose of maintaining the sponsor licence including an Authorising Office, Key Contact and Level 1 User; submit an online sponsor licence form to the Home Office (through its Authorising Officer) pay application fee and submit original supporting documentation. The Home Office will usually carry out an audit of any start-up entity before approving the licence so important to ensure appropriate HR systems in place before submitting application. Audits can take place on notice or unannounced. Once granted, the sponsor licence is subject to strict record keeping and reporting compliance duties. 7

8 Tier 2 of the Points Based System - Compliance General duties including only assigning CoS to migrants who meet the requirements of the relevant category and are likely to comply with their conditions of leave Record keeping duties including keeping prescribed documentation and sponsored migrant s current and historic contact details Reporting duties including absences, change to role, location or immigration status Breach of any compliance duty can lead to sponsor licence being suspended, downgraded or revoked and termination of all sponsored migrants (including those not involved in breach) Civil penalties of 10,000 per illegal employee (due to rise to 20,000 in April 2014) 8

9 Tier 1 Investor The purpose of the Tier 1 (Investor) category is for money to be brought into the UK and invested in ways that help to stimulate growth in the UK as directly as possible. Permission is initially granted for a period of 3 years and 4 months. On extension, permission is granted for a period of 2 years. Applicants may then qualify to settle in the UK permanently after 2, 3, or 5 years continuous residence in the UK (depending on the level of investment). 9

10 Tier 1 Investor Immediate requirements to qualify for a Tier 1 (Investor) visa: You have money of your own, under your control, held in a regulated financial institution and disposable in the UK amounting to no less than 1 million Investments of 1 million made within the last 12 months may be eligible Applicant must be the beneficial owner of the funds. Qualifying investments into the UK must be made in applicant s name. To extend a visa applicant must show: 1 million in the UK of which at least 750,000 has been invested in specified ways (as outlined above); and The money was invested within 3 months of the date of entry in the UK and has been maintained since that date. Alternative: 2 million in personal assets, and 1 million loan by a regulated financial institution for investment into the UK 10

11 Tier 1 Investor Share or loan capital In order to rely on investments made as loan or share capital, an applicant must have made a capital investment in a business operating within the UK economy and subject to UK taxation. The Home Office considers a UK company to be one that is registered in the UK as a Private company limited by shares (Ltd); Private company limited by guarantee; a Private unlimited company; or a Public company limited by shares (plc). The company must also meet all of the following requirements: the company has its registered office or, if it has no registered office, its head office in the UK; it has a UK business bank account showing transactions for the business that are current; and it is subject to UK taxation. UK Government bonds Investment into UK Government bonds are acceptable 11

12 Tier 1 Investor Money cannot be invested into: an offshore company or trust (this is to ensure maximum tax benefit to the UK); open-ended investment companies, investment trust companies or pooled investment vehicles (as these investments cannot be guaranteed to be in the UK); companies mainly engaged in property investment, property management or property development. This prevents investment in companies whose main function is to own or manage land or buildings. It does not prevent investment in, e.g. construction firms, manufacturers or retailers who own their own premises; deposits with a bank, building society or other enterprise whose normal course of business includes the acceptance of deposits; ISAs, premium bonds and saving certificates issued by the National Savings and Investment Agency (NS&I) note that NS&I Guaranteed Income Bond and the Guaranteed Growth Bond are acceptable because they mature after a minimum fixed period; or leveraged investment funds. 12

13 Tier 1 Investor (proposed changes) UK Government commissioned a report on the Tier 1 (Investor) route through its Migration Advisory Committee (MAC) which has recently been published. The MAC s main recommendations are: Increase the minimum 1 million threshold to 2 million. Relax the current restrictions on permissible investment instruments so as to permit wider investment activity; Remove the topping up rule; Remove the provision permitting the investment funds to be sourced by way of a loan against assets. Introduce a 'premium route' instead of the current 5 million and 10 million routes. The premium route would be limited to around 100 applicants per year and places would be available through an auction, with a reserve price set at 2.5 million. The Government must now decide whether to implement the MAC's recommendations. 13

14 Tier 1 Entrepreneur The purpose of the Tier 1 (Entrepreneur) route is to enable migrants to invest in the UK by setting up or taking over and being actively involved in the running of one or more businesses in the UK. Permission is initially granted for a period of 3 years and 4 months. On extension, permission is granted for a period of 2 years. Applicant may then qualify to settle in the UK permanently after 3 or 5 years continuous residence in the UK as a Tier 1 (Entrepreneur). 14

15 Tier 1 Entrepreneur Requirements to qualify for a visa as a Tier 1 (Entrepreneur) migrant: Access to not less than 200,000 in cash to be invested in a UK business. The money must be held in one or more regulated financial institutions The money must be disposable in the UK Applicant must satisfy an English language requirement and a maintenance requirement ( 3,100 held for at least 90 days if applying from outside the UK) Business plan recommended Money invested in the UK in the past twelve months can be counted towards the required 200,000. The money invested should not include the value of any residential accommodation or property development, or property management, or be in the form of a director s loan unless it is unsecured and is subordinated in favour of third-party creditors. 15

16 Tier 1 Entrepreneur Requirements for extending a Tier 1 (Entrepreneur) visa You must have invested not less than 200,000 directly into one or more businesses in the UK AND registered with HM Revenues & Customs as self-employed; or registered a new business in which you are a director; or registered as a director of an existing business AND created the equivalent of at least two new full-time jobs for at least 12 months for persons settled in the UK; or taken over or invested in an existing business and show that your services or investment have resulted in a net increase in employment for persons settled in the UK by creating the equivalent of at least two new full time jobs for at least 12 months for persons settled in the UK. 16

17 Business Visitors A non-eea national working abroad visiting the UK to do business on their own or their employer s behalf may enter as a visitor Maximum stay in any one visit is 6 months and separate visits must not amount to more than 6 months in any 12 month period Work/employment (whether paid or unpaid) is prohibited regardless of duration of visit Permitted business activities are limited but include troubleshooters, trainers or consultants If an Immigration Officer believes that there is an intention to take employment, a visitor can be refused entry and receive a re-entry ban of between 1 and 10 years (where deception used) 17

18 Contact Information Annabel P. Mace Supinder S. Sian

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