Sole Representative Visa Route to Change from 4 June 2020

In the Statement of Changes in Immigration Rules presented to Parliament in May 2020, released last week, the Secretary of State has made clear that she will significantly tighten the sole representative of an overseas business visa category from 4 June 2020. 

As I explain in my subsequent blog posts, although the requirements for a sole representative visa in the Rules are drafted relatively simply, the arguably unlawful way they have been applied under the current regime has in practice already led to a bottleneck, with fewer applicants being granted. The new Rules will make it even more difficult and increase the evidential burden on the sole representative.

What are the current sole representative visa requirements? 

Paragraph 144 of the Immigration Rules sets out all of the factors that should be considered when assessing an initial application of a representative of an overseas business. There are requirements for the overseas business and for the representative, with most evidence being required from the overseas business rather than representative.

The overseas parent company has to: 

• Have its headquarters and principal place of business outside the United Kingdom; 
• Have no branch, subsidiary or other representative in the UK;
• Intend to establish a branch or subsidiary in the UK, operating in the same type of business as the overseas business; and
• Intend to maintain the centre of its operations overseas.

The proposed sole representative has to:

• Be a senior employee in the business;
• Have been recruited outside of the UK;
• Have full authority to take operational decisions on behalf of the business;
• Not hold more than 50% of the shares in the business;
• Not intend to take employment other than for the oversea business;
• Be competent in the English language to at least CEFR Level A1 (speaking and listening);
• Be able to maintain and accommodate him/herself and his/her dependents.

In terms of evidence, the overseas business has to provide a:

• Full description of the company’s activities, including details of the company’s assets and accounts and the company share distribution for the previous year;
• Letter which confirms the overseas company will establish a wholly-owned subsidiary or register a branch in the UK in the same business activity as the parent company;
• Job description, salary details and contract of employment for the proposed sole representative;
• Letter confirming the sole representative is fully familiar with the company’s activities and has full powers to negotiate and take operational decisions without reference to the parent company; and
• Notarised statement which confirms:
  • the proposed sole representative will be their sole representative in the UK; 
  • the company has no other active branch, subsidiary or representative in the UK; 
  • its operations will remain centred overseas; and 
  • the proposed sole representative will not engage in business of their own nor represent any other company’s interest.

The proposed sole representative only has to provide evidence they meet the English language requirement, and can maintain and accommodate him/herself and any dependants adequately without recourse to public funds.

What are the changes to initial sole representative visa applications?

From 4 June 2020, in order to satisfy the requirements for a sole representative visa the overseas parent company will need to: 

• Be an active and trading overseas business;
• Have, and continue to have, its headquarters and principal place of business outside the United Kingdom; 
• Have no active branch, subsidiary or other representative in the UK;
• Intend to establish and operate a branch or wholly-owned subsidiary in the UK:
  • That branch or subsidiary will actively trade in the same type of business as the overseas business;
  • That branch or subsidiary cannot be established solely for the purpose of facilitating the entry and stay of the sole representative; and
• Intend to maintain the centre of its operations overseas.

The proposed sole representative will have to genuinely:

• Have been recruited and taken on as an employee outside the United Kingdom, by the overseas parent company;
• Be an existing senior employee of the overseas business;
• Have the  skills, experience and knowledge of the overseas business necessary to undertake the role of sole representative of the overseas business in the UK;
• Have full authority to negotiate and take operational decisions on behalf of the overseas business;
• Intend to be employed full-time as a representative of the overseas business;
• Not engage in business of his own or represent any other business’s interest in the United Kingdom; 
• Not have a majority stake in, or otherwise own or control, that overseas business, whether that ownership or control is by means of a shareholding, partnership agreement, sole proprietorship or any other arrangement;
• Be competent in the English language to at least CEFR Level A1 (speaking and listening);
• Be able to maintain and accommodate him/herself and his/her dependents.

The importance of this new genuineness requirement will be unpacked in subsequent blog posts.

In terms of the evidence, the full description of the parent company’s activities will still need to include details of the company’s assets and accounts and the company share distribution for the previous year. To this, details regarding ownership for the previous year will additionally be required. 

Additionally, a letter from the parent company must confirm the proposed sole representative has the relevant skills, experience, knowledge and authority to negotiate and take operational decisions on behalf of the overseas business. 

What are the changes to sole representative visa extension applications?

The sole representative always had to show that (s)he is employed full time as a representative of that overseas business and has established and is in charge of its registered branch or wholly owned subsidiary. 

From 4 June 2020, it is clarified that that branch or subsidiary must have been “established in the UK in accordance with paragraph 144 of these rules”.  This is to clarify that the branch or subsidiary cannot have been established overseas.

What are the changes to dependent applications?

As for a spouse, civil partner, unmarried or same-sex partner of the sole representative, there will be a new requirement that where they are accompanying or joining them, the partner cannot “have a majority stake in, or otherwise own or control, that overseas business, whether that ownership or control is by means of a shareholding, partnership agreement, sole proprietorship or any other arrangement”. 

Cumulatively, it appears that the partner and representative can together have a majority or more than a majority, but neither can individually. This means a sole representative could not transfer ownership/control or shares to their partner accompanying them to the UK to meet the requirement. Nor could the majority shareholder instead have their partner make the application as a sole representative, while the majority shareholder accompanies their partner as their dependent. 

Contact our Business Immigration Barristers

For advice and assistance with your application for a Sole Representative of an Overseas Business visa, contact our business immigration barristers on 0203 617 9173 or complete our enquiry form below.