Sole Representative Visa: The Centre of Operations Test
For a parent company to satisfy the requirements of the representative of an overseas business visa category it must be a genuine commercial enterprise with its principal place of business outside the UK. Importantly, it must also intend to keeps its main centre of operations abroad.
In this post we look at the requirement for the business to remain centred abroad. Where is the centre of operations test set out? What does the Home Office look for when assessing whether the test is met? And what evidence does an applicant need to provide?
The legal basis for the centre of operations test
Whereas paragraph 144 of the the Immigration Rules clearly sets out various requirements that the parent company must meet, such as to have its headquarters and principal place of business outside the United Kingdom (paragraph 144(i)) and to have no active branch, subsidiary or other representative in the United Kingdom (paragraph 144(ii)(a)), there is no express legal requirement for the parent company to keep its main centre of business operations abroad.
Instead, the centre of operations test is found in an evidentiary provision at paragraph 144(iii)(d)(5) of the Immigration Rules. This states that the applicant must supply from their employer a notarised statement which confirms, amongst other things, that the company’s operations will remain centred overseas. It is this evidential requirement which, alone, provides the legal basis for the centre of operations test.
What factors will the Home Office take into account?
UK Visas & Immigration officials are alive to the fact that any genuine business looking to establish a branch or wholly-owned subsidiary in the UK is likely to want to make its UK branch or subsidiary a success. Indeed, Home Office policy recognises that:
“[The centre of operations test] does not mean that you must refuse a company if there is evidence that it intends its UK branch or subsidiary to flourish so in the long term it might overshadow its parent company.”
However, the same policy document goes on to state:
“You must refuse the application when it is clear the intention is to move the main centre of business to the UK and effectively cease trading outside the UK.”
Guidance issued to Home Office caseworkers indicates that an intention to move the main centre of business to the UK may be inferred if, for example, the applicant is a major shareholder, if they are the driving force behind the parent company, if no or few senior employees will remain abroad or if the company’s success seems linked to the applicant’s specific talents and performance.
Clearly, where two or more of these factors are present, there will be a heightened risk that the caseworker may conclude that the real intention is not for the UK branch or subsidiary to merely flourish, but to move the centre of business operations to the UK.
What evidence is needed to pass the centre of operations test?
As set out above, the only strict evidential requirement in the Immigration Rules is that the applicant for a sole representative visa must provide a notarised statement from their employer in which their employer confirms that the company intends to keeps its main centre of business abroad.
However, this is not the end of the matter. In practice, the Home Office will look beyond the notarised statement from the employer and assess all the available evidence to decide whether or not, in its view, the company intends to keep its centre of business operations outside the UK.
Sole Representative of an Overseas Business visa applicants should therefore ensure that the evidence that they provide in support of their application addresses all relevant matters such as:
- the size of their shareholding;
- their position within the company;
- the number of senior employees who will remain abroad; and
- the extent to which the company’s success is linked to their specific abilities and performance.
Contact Our Business Immigration Barristers
For expert advice and assistance regarding an application for entry clearance, leave to remain or settlement as a Sole Representative of an Overseas Business, contact our business immigration barristers on 0203 617 9173 or complete our enquiry form below.