Immigration law in the United Kingdom – and more specifically, corporate immigration in the United Kingdom – is broadly covered by the Immigration Rules.
The Immigration Act 1971 provides the secretary of state with statutory power to lay before Parliament rules or any changes to the rules as he or she sees fit.
Over the years, the Immigration Rules have been changed on numerous occasions to reflect the immigration policy at the time. The rules are supplemented by guidance which holds more or less the same status as the rules and is intended to complement them and provide guidance where there is ambiguity.
In addition to the Immigration Rules, case law and primary legislation also govern the corporate immigration spectrum.
Corporate immigration is mainly covered by the Points-Based System under the Immigration Rules; while other work-based and family categories are covered by the Immigration Rules and not by the Points-Based System.
UK Visas and Immigration – an arm of the Home Office, which is governed by the secretary of state – regulate and is responsible for the immigration system in the United Kingdom. UK Visas and Immigration has all the powers it needs to enforce the rules, including the power to:
- refuse visa applications to enter or remain in the United Kingdom;
- temporarily or permanently ban someone from entry to the United Kingdom;
- enforce fines; and
- remove the ability to sponsor workers.
The general approach to immigration fluctuates according to the court of public opinion. Immigration is and always has been a highly politicised area of the law; and despite the United Kingdom’s need for skilled labour, consecutive governments have made it increasingly difficult and expensive for skilled workers, investors and entrepreneurs to come to the United Kingdom. The approach to immigration remains, unfortunately, one of hostility.
Business visitors are covered by the standard visit visa rules.
Individuals who are considered ‘non-visa nationals’ are not required to apply for a visa and are either granted or refused entry at the border. Most other applicants (visa nationals) are required to apply for a visit visa before they travel to the United Kingdom.
This will usually involve providing an explanation on the purpose of the visit to the United Kingdom and submitting to a means and intentions-based assessment.
While ‘work’ is generally prohibited under the visit visa rules, certain business activities are permitted. These include:
- attending meetings, conferences, seminars and interviews;
- giving a one-off or short series of talks and speeches, provided that these are not organised as commercial events and will not make a profit for the organiser;
- negotiating and signing deals and contracts;
- attending trade fairs, for promotional work only, provided that the visitor is not directly selling at the fair;
- carrying out site visits and inspections;
- gathering information for an overseas employer; and
- being briefed on the requirements of a UK-based customer, provided that any work for the customer is done outside of the United Kingdom.
An employee of an overseas-based company may advise and consult, troubleshoot, provide training and share skills and knowledge on a specific internal project with UK employees of the same corporate group, provided that no work is carried out directly with clients.
There are also certain activities that people in certain industries can carry out – for example:
- scientists and academic scientists and researchers may:
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- gather information and facts for a specific project which directly relates to their employment overseas, or conduct independent research; and
- share knowledge or advise on an international project that is being led from the United Kingdom, provided that the visitor is not carrying out research in the United Kingdom;
- academics may:
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- take part in formal exchange arrangements with UK counterparts (including doctors);
- conduct research for their own purposes if they are on sabbatical leave from their home institution; and
- if they are an eminent senior doctor or dentist, take part in research, teaching or clinical practice, provided that this does not amount to filling a permanent teaching post;
- in the legal field:
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- expert witnesses may visit the United Kingdom to give evidence in a UK court, while other witnesses may attend a court hearing in the United Kingdom if summoned in person by a UK court; and
- overseas lawyers may advise a UK-based client on specific international litigation and/or an international transaction;
- religious workers overseas may visit the United Kingdom to preach or do pastoral work;
- artists, entertainers and musicians may:
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- give performances as an individual or as part of a group;
- take part in competitions or auditions;
- make personal appearances and take part in promotional activities; and
- take part in one or more cultural events or festivals on the list of permit free festivals in the Appendix Visitor: Permit Free Festival List;
- personal and technical staff and members of the production team of an artist, entertainer or musician may support the activities listed above, provided that they are:
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- attending the same event as the artist, entertainer or musician; and
- employed to work for him or her outside of the United Kingdom;
- film crews (actors, producers, directors and technicians) employed by an overseas company may visit the United Kingdom to take part in a location shoot for a film or programme or other media content that is produced and financed overseas;
- sportspeople may:
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- take part in a sports tournament or sports event as an individual or part of a team;
- make personal appearances and take part in promotional activities;
- take part in trials, provided that these are not in front of a paying audience;
- take part in short periods of training, provided that they are not being paid by a UK sporting body; and
- join an amateur team or club to gain experience in a particular sport if they are an amateur in that sport; and
- personal and technical staff of sportspeople, and sports officials, may support the activities in, if they are attending the same event as the sportsperson. Such personal and technical staff must be employed to work for the sportsperson outside the United Kingdom.
All visitors – business or otherwise – can stay in the United Kingdom for up to six months from the time they enter the country.
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A number of categories under the immigration rules allow work to be conducted, including students and people on family visas. Work permits, however, generally refer to the sponsored worker route.
Skilled Worker visa: As the name suggests, the Skilled Worker visa is intended to enable skilled workers to come to the United Kingdom in a sponsored capacity. Businesses in the United Kingdom can apply for a sponsor licence and, where necessary, fill vacancies for skilled workers by overseas nationals.
Intra-company visa: This allows workers of overseas businesses to send members of their staff to a UK branch to work there.
Tier 1 Investor visa: This requires applicants to invest a minimum of £2 million in UK bonds and equities for up to five years. Once invested, applicants are free to live, work and study in the United Kingdom. Dependants (spouses and children under 18) can also apply and enjoy the same rights.
Sole Representative visa: An overseas business may send a senior employee to the United Kingdom to oversee the growth and expansion of a UK branch of its business in the United Kingdom.
Graduate visa: A Graduate visa gives an applicant permission to stay and work in the United Kingdom for any employer for at least two years after successfully completing a bachelor’s or master’s degree in the United Kingdom.
Youth mobility: 18 to 30-year-olds from certain countries (eg, Australia, Canada, New Zealand) can come to the United Kingdom to work for up to two years.
Government-authorised exchange: Applicants can apply for a visa for up to 12 months for work experience or to do training or complete an overseas government language programme, conduct research or undertake a fellowship through an approved government-authorised exchange scheme
Frontier Worker scheme: EU nationals who live in the European Union but spend time working in the United Kingdom for short periods can apply for a permit under the Frontier Worker scheme.
Applicants must normally have already been working in the United Kingdom prior to 31 December 2020 in order to apply.
Global Talent visa: An applicant can apply for a Global Talent visa to work in the United Kingdom if he or she is a leader or potential leader in one of the following fields:
- academia and research;
- arts and culture; and
- digital technology
These fields are quite broad and include the film, media, literature, fashion design and music industries.
Start-up/Innovator visa: Start-up and Innovator visas both allow an applicant to apply for a visa to set up and run an innovative business in the United Kingdom. The Start-up visa is aimed at budding entrepreneurs, while the Innovator visa is aimed at more experienced entrepreneurs. Both routes require applicants to have an innovative new idea which:
- is both scalable and viable; and
- has the approval of an independent government-approved endorsing body.
There is no maximum period of stay under:
- the Skilled Worker visa;
- the Tier 1 Investor visa;
- the sole representative route; and
- the Intra-company visa.
When applicants are sponsored, they are usually sponsored for a maximum period of five years at a time. This can be extended if the applicant does not qualify for permanent residence at the end of the five-year period.
Note this will be very detailed for every type of UK visa available and not really practical for this type of guide!
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Although previous governments have imposed quotas on the number of applicants being sponsored, there are currently no limits on the number of people that may apply under the various worker routes.
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Most working categories will lead to settlement after a continuous period of five years’ residence in the United Kingdom. In addition to the residence requirements, applicants must meet the substantive requirements of their visa – for example, a skilled worker sponsored by an organisation in a certain role on a certain salary must remain employed in that position in that category.
Finally, in almost all settlement applications, applicants must complete the Life in the UK test and English language tests.
Foreign citizens with ancestral connections can apply under the Ancestral visa. This is normally limited to applicants who are:
- Commonwealth citizens;
- British overseas citizens;
- British overseas territories citizens;
- British nationals (overseas); or
- citizens of Zimbabwe.
Applicants applying for settlement must normally evidence their residence in the United Kingdom and provide:
- evidence of their residence in the United Kingdom;
- passports held during their stay in the United Kingdom;
- evidence of completion of the Life in the UK test and their English language ability; and
- evidence that they meet the substantive aspects of their visas.
The current fee for settlement is £2,389.
The process involves:
- making an online application;
- uploading the supporting evidence; and
- providing biometrics.
The timeframes generally depend on the route for settlement and can take anywhere between one week and six months.
EU citizens who have pre-settled status in the United Kingdom can apply for settled status after completing five years’ residence in the United Kingdom. While they must complete the online application and provide evidence in support of their applications, they are not required to pay a fee.
Dependants can apply at the same time as or after the main applicant. Dependants in most work categories must also complete five years’ residence in the United Kingdom; and adult dependants must also complete the Life in the UK and English language tests.
Dependants are free to live, work and study in the United Kingdom.
Civil/unmarried partners must provide evidence of their relationship in the form of cohabitation for at least two years before they can apply. The same applies for same sex-partners.
Overseas employees of existing UK businesses may come to the United Kingdom on an Intra-company visa as long as the UK branch has a licence that enables it to sponsor employees.
An overseas employee of an international business setting up its first presence in the United Kingdom can transfer on a Representative of an Overseas Business visa.
There is no maximum stay allowed under this regime and the visa can be extended for as long as necessary.
Before an employer can sponsor someone under the Intra-company regime, it requires a licence. In order to obtain a licence, it must satisfy the Home Office that, as an organisation, it has adequate HR and recordkeeping processes in place and can be trusted as an organisation to sponsor overseas employees.
In order to apply for a licence, an organisation must provide certain information and documentation, including:
- details of why it is applying for a sponsor licence and the sector in which it operates; and
- a hierarchy chart detailing all owners, directors and board members. For organisations with 50 or fewer employees, the names and job titles of all individuals within the company must be stated.
Any four of the following documents must also be provided:
- the company’s latest audited annual accounts;
- the employer’s liability insurance certificate for at least £5 million from an authorised insurer;
- a certificate of value added tax (VAT) registration and the latest VAT return confirming the company’s VAT registration number;
- the latest corporate/business bank statement and/or a letter from the bank setting out the dealings it has had with the company, including the nature and duration of those dealings;
- the latest notice to file a company tax return (CT603 and Company Tax Return CT600);
- proof of ownership of the company’s business premises or proof of lease of its business premises;
- evidence of registration with Her Majesty’s Revenue & Customs as an employer to pay pay as you earn (PAYE) tax and national insurance, with proof of its PAYE reference number and accounts office reference number; and
- an affidavit confirming the company’s ownership structure and its relationship with the overseas branch.
The fee is £536 for a small sponsor or £1,408 for a large sponsor.
A company is usually a small sponsor if two of the following criteria apply:
- annual turnover of £10.2 million or less;
- total assets of £5.1 million or less; and
- 50 employees or fewer.
A sponsor licence can take approximately eight weeks to obtain. The process involves submitting an online application followed by emailing supporting documents.
Labour market tests are no longer required, although it is good practice to keep a record of all recruitment carried out to fill a role.
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Immigration has generally become quite restrictive for entrepreneurs and investors. However, the new sponsorship regime has made it easier for employers seeking to recruit talent. Other positive measures include the anticipated introduction in Spring 2022 of a new Global Business Mobility regime, which looks like it will encompass the Intra-Company, Sole Representative and visit visa routes to allow employees of overseas companies to come to the United Kingdom to work on specific projects or help with the expansion of the business in the United Kingdom.
Maintain comprehensive records and invest in internal policies. As long as the HR function performs well in terms of recruitment, recordkeeping, carrying out right to work checks and so on, the rest is easy.
