Find me the fastest way into the UK
By Adam Landy & Kerry Garcia
Posted: 9th April 2015 09:21
Could your business send an employee to work in the UK if there was an urgent business need to do so and how quickly could they start?
The answer depends upon the steps the business has already taken to plan for this eventuality and the long term intentions of both the migrant and the business.
The UK Immigration Landscape
Successive UK Governments have introduced measures to reduce net migration into the UK, making it increasingly difficult to bring in non-EEA nationals. The pervasive public opinion is that the current level of migration into the UK is too high, meaning that the available routes into the UK are likely to reduce further following the General Election in May 2015.
Working in the UK
Businesses found to be employing foreign workers illegally in the UK, i.e. those without the correct visa, face financial penalties of up to £20,000 per illegal worker and restrictions on their ability to employ migrant workers in the future. Therefore, it is critical that any workers you send to the UK do have the right to work.
Non-EEA nationals must obtain a work visa in order to perform any substantial duties in the UK. The most common type of working visa is a ‘sponsored visa’ under a category called ‘Tier 2’. To qualify for sponsorship the role must be sufficiently skilled and well paid.
The Sponsor Licence
To sponsor a non-EEA national in the UK, the company which the individual will be working for must first obtain a ‘sponsor licence’. To do so, the company must be active and trading in the UK and must provide original documentary evidence of this to the UK Home Office. Such evidence can include corporate annual accounts, employer’s liability insurance certificates, tax registration, bank statements and property ownership documents. If the business wants to transfer employees to the UK from overseas linked companies, then it must also demonstrate the link between the UK and overseas companies. It can often take a number of weeks for this documentation to be collated and for the Home Office to then consider and approve the application for the sponsor licence. However, once issued, a sponsor licence is valid for four years.
Businesses looking to bring non-EEA nationals into the UK without already having a sponsor licence in place should typically expect at least a four week delay to the overall process as a result. This delay can easily be avoided by obtaining the sponsor licence in anticipation of the need to use it in future.
Categories of sponsorship
The quickest sponsored routes into the UK are available to non-EEA migrants who have worked for an overseas linked company for at least 12 months and wish to transfer to the UK (an Intra Company Transfer or ‘ICT’) or those who will be paid a guaranteed annual income over £153,500 whilst in the UK. Assuming the sponsor licence is in place, individuals under these categories are usually able to come to work in the UK within two to four weeks depending upon which country they are applying from.
However, non-EEA migrants coming to the UK on the basis of the ICT route may only remain in the UK for up to 5 years and must then leave the UK. Unless they are paid over £153,500, there is a 12 month cooling off period meaning they cannot obtain a subsequent sponsored Tier 2 visa for at least 12 months.
If the proposed non-EEA migrant either has not worked for an overseas linked company for at least 12 months, earns less than £153,500 or wishes to stay in the UK long term, they must apply for a Tier 2 (General) visa. This route leads to settlement in the UK and, ultimately, British citizenship. However, before sponsoring a non-EEA national under this category, the sponsor must check that no settled workers in the UK can perform the role. In particular the UK position must be advertised in accordance with strict Home Office requirements for at least 28 days and the sponsor must be satisfied that no suitable settled workers applied for the role before it can be offered to the non-EEA migrant. Once the advert closes, the sponsor must apply to the Home Office for the right to sponsor a non-EEA migrant for the role. This whole process can add a further one to three months to the usual two to four week timeframe.
It is critical to consider the long term impact of the visa category on both the migrant and the business and to choose the best category of sponsorship on a case by case basis, even where there is a need to bring a non-EEA national to the UK urgently.
Are there any other options?
The business visitor category is for non-EEA nationals who work outside the UK but intend to visit the UK for a short time to do business. It is a quick route into the UK for many non-EEA nationals as non “visa nationals” (e.g. Americans) are not required to make an application before arriving in the UK.
Business visitors in theory may spend up to six months in any 12 month period in the UK. They must not receive their salary or pay from a UK source, must not intend to live for extended periods in the UK through frequent or successive visits and are only permitted to carry out limited business activities whilst in the UK.
These activities include attending meetings or conferences that have been arranged before coming to the UK, arranging deals or negotiating or signing contracts, conducting site visits and attending board meetings (provided the person is not employed by a UK company).
Questions will be asked if someone visits the UK frequently or stays for long periods at a time. If it is believed that the person will actually be 'working' in the UK it is likely to lead to issues on entry to the UK and could lead to refused entry. This refusal could then prejudice future applications. If there has been deception, or false or misleading information has been provided, this can trigger a re-entry ban of up to five years.
It is worth checking if there is any other route into the UK for the individual. If the person is a Commonwealth citizen with a grandparent born in the UK they could apply for an ancestry visa. Those with a British or EEA partner may also be able to come to the UK on that basis.
Provided the business has not established a subsidiary in the UK or a branch in the UK or has just taken preliminary steps to do so, the ‘sole representative’ route could also enable you to bring the person to the UK although to qualify, the non-EEA national must be a senior employee (but not a majority shareholder) of a business based outside of the UK and must have authority to take operational decisions on behalf of the overseas business.
All of these routes can lead to settlement and British citizenship too.
Businesses should consider how well prepared they are for this potential scenario, before it arises in practice. Proactive forethought, rather than reactionary afterthought, will leave the business best placed to bring someone to the UK urgently. Time invested in the process now will almost certainly save time and costs to the business in future when every day the non-EEA is not in the UK will affect the business.
Note too that the best short term answer may not be the ideal long term solution.
Adam Landy is a Senior Associate at Stevens & Bolton LLP and specialises in business immigration law. He acts for clients from all sectors, from large multinational organisations to SMEs and individuals in relation to business and personal immigration matters. He has a broad range of experience including advising employers on registration as a sponsor under Tier 2 of the points based immigration system, Tier 2 sponsorship and employing non-EEA nationals. He also advises individuals on obtaining entry clearance, further leave to remain, settlement and naturalisation as British citizens as well as applications by temporary workers under Tier 5 and high net worth individuals under Tier 1 (Investor).
Kerry Garcia is a Partner in the Employment, Immigration & Pension team and joined Stevens & Bolton LLP in 2006 after working at a City firm for six years. She heads up the firm’s immigration practice. Kerry is experienced in all aspects of business immigration law and also advises in relation to obtaining indefinite leave to remain and naturalisation. Kerry regularly advises employers and individuals in relation to the points based immigration system, including assisting employers with the sponsorship registration process, assigning certificates of sponsorship and entry clearance and extension applications. She also advises on sponsorship compliance and issues arising relating to illegal working and right to work checks. Kerry is recognised in the Chambers directory for her extensive knowledge of immigration compliance and the Points Based System.