Sole Representative Visa: Facilitating Entry or Stay
My prior posts dealt with the new amendments to the sole representative visa category and the anxieties they revealed. Firstly, I considered the changes to ownership and control of the parent company. Secondly, I considered the new skills, experience and knowledge requirement. This post considers the third anxiety, the branch/subsidiary being established solely for the purpose of facilitating the entry and stay of the representative. My final post will consider the overarching additional requirement of genuineness.
Establishment solely for the purpose of facilitating the entry and stay of the applicant
An interesting addition to the sole representative Rules in paragraph 144, is the requirement that the branch or subsidiary of the overseas business “is not being established solely for the purpose of facilitating the entry and stay of the applicant”.
This seems simple, it cannot be solely for that purpose, but of course leaves open that it could be an ancillary purpose.
A genuine overseas business could have a senior employee who suggests to management that they are able and willing to assist the company open a branch in the UK. That employee wouldn’t mind relocating to the UK, where her family could benefit from life in the UK, and her children could attend British schools. The company wants to open the branch because it makes good business sense with respect to their expansion plans and opportunities in the market. I see no reason why this genuine sole representative should be prohibited from meeting the Rules. Facilitating her entry is not the “sole” reason.
The Explanatory Memorandum (at §7.22) states that the “amendment is being made to prevent an overseas business sending a representative to facilitate their entry to the UK when there is no genuine intention for them to establish a branch or subsidiary in the UK”. This supports my above interpretation—so long as the overseas business does have a genuine intention, representatives should then be in the clear.
How the Home Office will assess the intentions of the parent company and the representative, and whether they will be disbelieved, is a separate matter.
I imagine this provision was inserted to provide for another ground for refusal full of double negatives: “on the balance of probabilities I am not satisfied the branch is not being established solely for the purpose of facilitating the entry and stay of the applicant”. This is likely to be levelled whenever there are suspicions regarding genuineness, or if an applicant is unable to answer detailed questions regarding the business’ plans during an interview.
However, this is quite a large accusation to level against an overseas business. It is tantamount to an accusation that the business was attempting (for after all it is their intention), and the representative who would surely be part of any facilitation plot, to circumvent the requirements of the Immigration Rules and abuse the system. Such an allegation would likely have knock-on effects for future applications in this category, and for the migrant themselves.
It will be important to consider the context of the accusation and whether an allegation of deception has been made. A general ground for refusal for most applications is that of paragraph 320(11). It is triggered where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by using deception in an application for entry clearance, and other aggravating circumstances (including making frivolous applications) apply.
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