Just as UK companies are looking to set up business in the EU in the post Brexit world, overseas companies are looking afresh at the UK as a suitable business base for a subsidiary or branch office. Geography has a lot to be said for the UK; close to the EU but no longer part of the European Union. In this blog our business immigration solicitors answer your questions on whether the sole representative visa is the best option for an overseas national to secure entry clearance to the UK to further the expansion plans of an overseas based business.
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London based OTS Solicitors are specialists in business immigration law. If your business needs advice on the sole representative visa or any aspect of business immigration law call us on 0203 959 9123 or complete our online enquiry form. Appointments are available by phone call or video call.
Who is the sole representative visa aimed at?
The sole representative visa (otherwise known or referred to as the sole representative of an overseas business visa) is for international businesses who want to send an employee who is subject to UK immigration controls to the UK to either set up a branch or a UK based wholly-owned subsidiary of the overseas parent company.
Who is eligible for a sole representative visa?
UK immigration solicitors have always said that the eligibility criteria for the sole representative visa have always struck overseas based business owners as a bit odd. The applicant for the sole representative visa is the individual tasked with setting up the branch or subsidiary in the UK. The individual must be a senior employee of the overseas company and they must be recruited from outside the UK . However, whilst the sole representative visa holder must be a senior employee with the authority to take key operational decisions in the UK, the visa holder can't be a majority shareholder. The eligibility criteria seem strange as for many SMEs the investment involved in setting up a branch or subsidiary in the UK would justify the transfer of a shareholder to the UK who also holds a managerial position in the overseas company.
Can a sole representative hold any shares in the overseas parent company?
According to Home Office guidance, the eligibility criteria for the sole representative visa is that the sole representative mustn’t own or control more than a fifty percent shareholding in the overseas parent company. Accordingly, a sole representative can hold shares in the parent company. If the proposed sole representative does own more than fifty percent of the shares in the overseas parent company, they can sell all or some of their shares but the sole representative will have to provide up to date evidence of the extent of their shareholding.
Can a sole representative hold shares in the UK subsidiary company?
If the overseas parent company is intending to set up a UK subsidiary company then the parent company will need to own the shares in the UK subsidiary business. The sole representative can't do so.
Can a sole representative be employed by the UK branch or subsidiary company?
To qualify for a sole representative visa, a sole representative must be employed by the overseas parent company rather than by the UK subsidiary company.
Can the sole representative work on a part-time basis for the overseas business?
The immigration rules say that a sole representative visa holder has to work full-time for the overseas parent company. An applicant therefore can't intend to combine their role as a sole representative with setting up their own business or taking up part-time or consultancy or freelance work in the UK. The intention behind the rules is that the sole representative must be more than a figurehead for the UK branch or subsidiary.
How senior an employee does the sole representative need to be to qualify for a sole representative visa?
The immigration rules and Home Office guidance don’t prescribe how senior an employee has to be to meet the eligibility criteria for a sole representative visa but the sole representative must be sufficiently senior and experienced to be given the power to exercise decision making over the UK operation of the subsidiary or branch of the parent company.
Can the sole representative be a new employee of the overseas parent company?
The immigration rules and Home Office guidance don’t say that an employee of the overseas parent company must have been employed overseas by the parent company for a minimum period. Whether the employee is a new employee or a long serving member of staff, the sole representative will need to demonstrate that they have the seniority and the experience to carry out the role of sole representative.
Does a sole representative need to be paid a minimum salary threshold to qualify for a sole representative visa?
Unlike the skilled worker visa, there is no minimum salary threshold for a sole representative visa applicant. The parent company therefore doesn’t have to consider the complex salary thresholds applicable to the skilled worker visa . However, as the sole representative is meant to be a senior employee with UK decision making authority, the likelihood is that the salary will be set at a reasonably high standard by the overseas company.
Can a sole representative join an existing UK branch or subsidiary of the overseas parent company?
A sole representative can secure a sole representative visa in circumstances where a branch or subsidiary has been legally set up but isn’t trading and doesn’t have employees. In other words, just the ‘groundwork’ has been undertaken.
Can more than one sole representative be employed by the overseas parent company?
Only one sole representative can be employed by an overseas company and secure a sole representative visa. If the sole representative isn’t coming to the UK to set up the branch or subsidiary company they may qualify as a skilled migrant worker under the skilled worker visa or alternate business or work visa.
How long can an employee fill the role of sole representative of an overseas business?
A sole representative visa lasts for three years. A sole representative can apply to the Home Office to extend their sole representative visa for a further two years. Once a sole representative has been residing in the UK for five years or more then they can apply for indefinite leave to remain in the UK provided that they meet all the eligibility criteria for an ilr application.
Once Indefinite Leave to Remain has been secured the sole representative is no longer subject to UK immigration controls and visa requirements and , if they choose to do so and meet the eligibility criteria, they can apply for British Citizenship after they have held ilr status for twelve months. If the sole representative has married a British citizen then the twelve-month period won't be applicable to them.
What documents does a sole representative need to provide to secure a sole representative visa?
A sole representative needs to supply both personal documents and company related paperwork in support of their sole representative visa application as the Home Office needs to be satisfied that both the individual sole representative and the overseas parent company meet the immigration rules for the granting of a sole representative visa.
The overseas parent company will need to be able to establish that it is:
- An active and trading business.
- Based overseas with its headquarters and centre of operations located outside the UK.
- Setting up a first branch or UK subsidiary company.
- Planning to remain based overseas and that the purpose of setting up a branch or subsidiary isn’t to transfer the base of the overseas business to the UK.
The sole representative will need to show that:
- They are a senior employee of the overseas business.
- They have the skills and experience to be a sole representative.
- They don’t have a majority shareholding in the overseas parent company.
- They have the authority to make the operational decisions for the UK branch or subsidiary.
- They will be working as a sole representative on a full-time basis.
- They meet the English language requirement and the maintenance requirement.
If a sole representative wants to bring family members with them to the UK then the family members will need to meet the eligibility criteria for a dependant visa.
How can OTS Solicitors help with a sole representative visa application
As the eligibility criteria and the supporting documents required for a sole representative visa can be complicated it is best to speak to a specialist sole representative visa solicitor about the eligibility criteria and the specific supporting documents that will be needed to best secure the sole representative visa.
UK online and London based business immigration and sole representative visa solicitors
London based OTS Solicitors specialise in business immigration law and sole representative visa applications. OTS Solicitorsare recommended in the two leading law directories, Chambers Guide to the Legal Profession and Legal 500. For proactive expert advice on sole representative visas and all your business immigration law, employment law and corporate law needs contact OTS Solicitors on 0203 959 9123 or contact us online. Appointments are available by phone or video call.
For the best expert legal advice and outcome on your UK immigration application, contact OTS immigration solicitors on 0203 959 9123 or contact us online.
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Posted on: Thursday, 01 April, 2021