How to Switch from Sole Representative to Skilled Worker
On 11 April 2022, the Sole Representative category closed to new applicants. Those who already held permission have been able to extend and settle. You can find helpful blog posts and information on extending and settling in this category here and here.
A Climate of Harsh Decision-Making
It has become increasingly clear to practitioners that just because a Sole Representative met the requirements in a previous application, and little has changed, does not mean that their extension or settlement application is secure. While in some decisions we have merely seen the Rules being applied more stringently, in other cases there have been unexpected and new interpretations of the Rules.
We have had success in challenging some of these decisions through Administrative Reviews and Judicial Reviews. However, the Judicial Review process comes with costs risks and there is no right of appeal against refusals in this category. Even successful extension and settlement applications can take months longer than expected to decide, with numerous detailed requests for further information and evidence from decision-makers.
We have also seen increased inflexibility demonstrated by decision-makers. Generally, reasons provided for a company’s lack of trading or shareholding issues, even where impacted by the Covid-19 pandemic, are not accepted. Companies that do not have ample evidence to show that each requirement is met, should take advice as to whether continuing in this route is the best option.
Alternative Immigration Options for Businesses
In many cases, UK branches and subsidiaries of overseas companies can apply for Skilled Worker sponsor licences, so that they can switch their sole representatives into the Skilled Worker category. In short, applying for a sponsor licence is a three stage process:
- Stage one: The UK company will need to apply for a Sponsor Licence;
- Stage two: Once the licence is granted, the UK company will have to assign the proposed applicant a Certificate of Sponsorship;
- Stage three: They will then be able to apply for permission to stay in the UK as a Skilled Worker.
Things to note for switching Sole Representatives in particular, are as as follows:
- Consider timing: It is necessary to begin this process well in advance of the expiry of a Sole Representative’s permission. Sponsor licence applications can take 1-2 months to prepare. After submission of the application, the published processing time is 8 weeks (although a 10 day priority service is usually available for an additional £500). With the upcoming increases to the Skilled Worker general salary threshold, these decision-making times may stretch as a glut of businesses apply, trying to avoid the hike. The licence needs to be granted before the Skilled Worker application can be made. Ideally, a business would leave 6 months or more before the Sole Representative’s current permission expires for this process to unfold, although at a push it can be done in 3-4 months.
- Consider mandatory documentation: Where the UK branch or subsidiary was incorporated less than 18 months before the licence application is made, it is mandatory to have a UK business bank account, with a bank which is both FCA and PRA regulated. The process of opening this account can occasionally take longer than expected, delaying the licence application.
- Consider the business structure: If the UK branch or subsidiary is still a one-person operation, this will need to change before a licence application can be made. Companies will need a UK-based British or settled employee or office holder (e.g. a director) in order to take on the Key Personnel roles on the licence. The Key Personnel will need to oversee the company’s compliance with UK employment, company and immigration law, communicate with the Home Office, and manage the licence on a day-to-day basis including reporting changes in circumstances and other essential information. They also cannot be related to the proposed Skilled Worker.
- Consider the business’ viability: Where the UK entity is not yet trading, it will be necessary to provide clear evidence of its viability, including that it can afford the proposed Skilled Worker’s salary. This may include evidence of available investment funds, evidence of upcoming contracts or invoices, a business plan and similar. The particular evidence necessary is very specific to the business in question.
- Consider salary levels: It may be that the Sole Representatives salary will need to be increased when they switch. There is no minimum salary for a Sole Representative. Skilled Workers on the other hand must meet a complex salary requirement, and levels are due to increase significantly in some circumstances, from April 2024.
- Consider the route to settlement: Time spent in the UK as a Sole Representative counts towards the continuous residence requirement when applying to settle as a Skilled Worker. This means that if you have already spent 4 years as a Sole Representative, you will only have to be a Skilled Worker for 1 more year before you can apply to settle (if all other settlement requirements are met).
The extent of the climate of harsh decision-making for Sole Representatives is significant enough that it can be advisable to switch categories rather than risk an extension or settlement application. Our barristers have built up extensive experience both in challenging refusals for Sole Representatives and switching them into the Skilled Worker route. We are happy to advise in detail in a consultation.
Contact our Business Immigration Barristers
For expert advice and assistance with Representative of Overseas Business applications, Skilled Worker applications, Sponsor Licences or compliance issues contact our business immigration barristers on 0203 617 9173 or complete our enquiry form below.
