Meeting the Sole Representative Visa First Commercial Presence Test
The Sole Representative of an Overseas Business visa category may be the ideal business immigration route if you are intending to expand your business venture into the UK. In this blog we answer your questions about the definition of a first commercial presence in the UK and the sole representative visa and look at whether it is the right option for your UK business expansion plans.
UK sole representative visa solicitors
If you need more information on the sole representative visa or advice on applying for a sole representative visa then our expert team of sole representative visa solicitors in the business immigration team at OTS Solicitors in London can help you.
Does the business venture need to be new for a sole representative visa?
As business immigration solicitors we tend to find that one of the most common questions we get asked about sole representative visas is whether the visa can be used for an existing business that is already established in the UK or one that was set up and mothballed. For example, as the overseas parent company decided that the time was not right to continue with UK expansion plans.
You may question why a branch of an overseas parent company or subsidiary company would already be set up and trading in the UK and now require a sole representative visa for a sole representative to gain UK entry clearance.
In many scenarios, overseas parent companies will recruit a British citizen or a UK based settled worker/employee to get the UK base off the ground, assuming that a recruit with in depth knowledge of the UK market may be in a better position to drive the UK business forward than an overseas sole representative. The parent company may then conclude that an individual with hands on experience of the overseas parent organisation is the type of employee needed to make a success of the expansion of the overseas parent company into the UK.
Immigration Rules and definition of first commercial presence in the UK
The Immigration Rules on sole representative visa applications say that the company eligibility criteria for a sole representative visa is that the overseas parent company must intend to establish the company’s first commercial presence in the UK, namely:
A registered branch of the parent company or
A wholly owned subsidiary of the parent company.
If you are thinking of setting up a new business venture in the UK that doesn’t conform to one of those two legal models it is best to take specialist legal advice from sole representative visa solicitors on whether the proposed new business structure is likely to fall within the Immigration Rules. That is because the Home Office refers to branches and subsidiaries as ‘’examples’’ of the type of company structure that constitute an overseas parent companies first commercial presence in the UK.
If your sole representative visa application has been refused because the Home Office says that the company isn’t setting up its first UK commercial presence then sole representative visa solicitors can advise on appeal options.
Sole representative visas and an existing commercial presence in the UK
If you have an existing legal business entity in the UK then you may still meet the company eligibility criteria for an individual employee to secure UK entry clearance as a sole representative if the company or the legal entity in the UK does not:
Employ staff or
Transact any business.
In other words it is a company or entity that has been set up in anticipation of trading but expansion plans have not progressed.
The business visa options if the venture has existing employees or is trading
A specialist business immigration solicitor can look at the alternative business immigration options if your overseas parent company does not meet the sole representative visa test for establishing a first commercial presence in the UK.
If the company has an employee in the UK then the UK branch or company subsidiary may meet the eligibility criteria to apply for a Home Office sponsor licence to enable it to sponsor overseas workers on Tier 2 (General) visas. The overseas based employee identified as a suitable sole representative candidate is likely to meet the Tier 2 (General) visa eligibility criteria in terms of qualifications and the minimum income threshold.
At present an employer with a sponsor licence still has to conduct a Resident Labour Market Test to ascertain if there is a suitably qualified and experienced UK settled worker to carry out the role. However, the requirement to conduct a Resident Labour Market Test will cease with the introduction of the new UK points based Immigration system in January 2021. In any event, most sole representatives are highly specialised candidates and the company would probably be able to satisfy the requirements of the Resident Labour Market Test to secure the highly specialist recruit.
There are also alternative business visa options such as:
A global talent visa if your proposed overseas employee has specialist skills
A business visitor visa – this is only for six months duration and the Immigration Rules set out the permissible activities under a business visitor visa. However, this type of business visa may suit your business requirements if an existing overseas employee meets the eligibility criteria and the work required falls within the permissible activities
A Tier 2 intra company transfer visa for an existing employee of the overseas parent company.
Specialist business immigration solicitors can look at all your business visa options including the eligibility criteria for the sole representative visa and if the overseas parent company meets the first UK commercial presence test.
Sole representative visa solicitors
Based in central London and specialising in business immigration law, OTS Solicitors are recognised in the two leading legal directories, The Legal 500 and Chambers Guide to the Legal Profession. Our sole representative visa solicitors have substantial experience in successfully applying for sole representative visas and advising on sole representative visa refusals and appeal options.
If you have questions about a sole representative visa application or extension or if you have had your sole representative visa application refused and need expert advice call the sole representative visa solicitors on 0203 959 9123 or complete our online enquiry form . Appointments are available by video conference, Skype or telephone.