It has been around for a long time, way before the new, trendy visas such as the start-up, innovator and global talent visas. There is some comfort, some reassurance about this visa. It was first introduced in October 2009 when it amalgamated the two previous categories of 'sole representative of an overseas business' and 'representative of overseas newspapers, news agencies or broadcasting organisations'. It has been an attractive route since its inception due to being outside the Points-Based System.
The Secretary of State mentioned in May this year that she intended to significantly tighten this visa category and the results were seen in June 2020 when changes such as the inclusion of the requirement of 'genuineness' were made. Compared to other categories, this visa was less complex and a lot of requirements involved a degree of interpretation; which meant flexibility. The guidance has always remained slightly unclear, especially with regards to what exactly is required in the business plan and the permissible level of involvement in any other business the representative can have. We will focus on some of the key changes of the visa route and why the changes were introduced.
The main cause for concern arising from this visa category was that it was being abused by individuals who merely sought entry into the UK, but had little intention of setting up a branch or subsidiary in the UK. Therefore, the issue of genuineness caught the attention of the Government. Consequently, the immigration rules were amended to include this element. It also led to the inclusion of the requirement that the branch or subsidiary is "…not being established solely for the purposes of facilitating the entry and stay of the applicant." This requirement was included to circumvent any applications being made with the sole intention of the representative entering the UK as opposed to the establishment of a subsidiary or branch. The overseas business and the representative's intention would be of particular importance here to assess whether this requirement has been met.
A closer look at the visa category establishes that there were further issues relating to the ownership and control element of the visa, which effectively intended for the parent company to retain ownership and control. Further to this, it was also to ensure the representative did not hold significant control over the company to prevent the facilitation of the parent company relocating to the UK. This resulted in a significant amendment that ownership of the business is not limited to shares. This meant a representative could have significant ownership of the business without holding any financial ties to the business. The Home Office have specifically incorporated this into the rules "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." This was included to overcome the issue of applicants having an obvious interest in more than one business in the UK, but being able to apply for the visa regardless because they did not hold a majority share in another company. As a result, someone could have a significant interest in a company in the UK, but simply transfer their shareholding to another shareholder of that company, but continue to have integral involvement in that company. Thus, the rules have become more transparent and the definitions have become more specific to ensure the visa is less likely to be abused.
It is also interesting to note that there is an additional provision in place for dependants of those on sole representative visas. The additional provision states they also 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". This is to avoid the situation where an applicant transfers his shares to their partner to demonstrate they have no significant interest in another company.
Another point which is worth mentioning is that the amended rules now specify that the employer must provide a letter to confirm the proposed representative's skills, knowledge and experience are suitable for the senior position of being the sole representative of the overseas business and that his individual has the ability to make important operational decisions on behalf of the company. Yet, it still remains unclear whether the letter alone would be sufficient to evidence that the applicant is suitable or whether further evidence would be required, such as a CV.
Furthermore, with regards to the documents which must be provided as evidence, the rules remain the same. However, there is the addition of providing details of ownership for the previous year. This is most likely to ensure the application is genuine and the company genuinely intends to set up a branch or subsidiary in the UK.
Apart from the recent changes, it has been noted that in recent years there have been an increasing amount of applicants that are instructing a third party company to draft their business plan for them as part of their application. This is generally acceptable but a cautious approach should be taken because the instructions and details must originate from the company itself. If the representative is unable to fully understand or even explain the business plan then this will raise suspicion that the application is not genuine. In the event the representative is interviewed by the Home Office, then they should be fully prepared to answer any questions about the company's business expansion plan and the reasons for expanding the business's presence to the UK.
Overall, there has been a lot of speculation over the last few years as to whether this visa category will be abolished, however as the Government has chosen to tighten the requirements instead, it seems like this category is here to stay for a little longer. Either way, this visa has been valuable to businesses who genuinely intend to set up a branch or subsidiary in the UK. It provides flexibility, a route to settlement and no initial investment is required by the applicant.
If you are interested in applying for this visa or require further information then please do not hesitate to contact our immigration team.