The sole representative, or overseas representative visa, is closed to new applications. But there are still many people on that visa pathway, and many people who have received refusals of either extensions or indefinite leave to remain applications.
One of the challenges is that it can take as long as six months, a year, 18 months, or even two years to get a response on any administrative review you may have brought. I have done some videos about how to bring an administrative review effectively.
You can speed that up in some situations. For example, if there are kids involved who are linked to the admin review and they have to be overseas for some compelling reason, then you can request expedition. But generally speaking, it is hard to speed up the process. You just have to wait.
And the challenge with waiting is that, if you leave the United Kingdom, then the administrative review is deemed to be withdrawn:
So that means you are effectively landlocked in the UK, pending the outcome of the application. That is you and your family.
What I would like to discuss now is what is involved in switching to the Skilled Worker visa.
If you are switching to the Skilled Worker visa, there needs to be an entity that applies for the sponsor licence. If that is your overseas entity’s subsidiary or branch in the UK, then that entity could potentially apply for a sponsor licence, depending on its business traction in the UK.
The genuineness of the role is less of a hurdle because you will have already occupied that role and have been carrying it out, potentially for several years.
The other option is for another entity to sponsor you, or for you to set up your own fresh company. Now, I would not recommend, in most cases, setting up your own fresh company because there are restrictions on the visa that limit you quite considerably.
This provision here under ROB 16.1C requires that the applicant must not have undertaken work for any other business, or be engaged in a business of their own:
You would probably be engaged in a business of your own if you set up your own business and you were director and shareholder of that business.
There may be some scope for arguing that you set up the business as a preliminary step, but you did not actually engage in the business or do any work for it. But that might be a difficult argument to run.
There are also the conditions in ROB 11.3 that state one of the conditions of your visa is that no work is permitted other than working for the overseas business which the applicant represents:
So setting up your own business as director and shareholder is going to, in most cases, put you in breach of your visa terms.
The admin review is looking into the past, and the breach may not come to the attention of the Home Office. But there is a duty of candour. And if your admin review succeeds – as many of my admin reviews have – then they may remit that to a different decision maker and ask for an update, or ask what the latest position is now.
They could ask for communications concerning it, or they could independently identify it on Companies House and then ask you for communications. Then they will determine whether you have engaged in an independent business, done work in breach of your visa conditions, and at that point could refuse your admin review on that different basis.
The other point is: under the new rules, if you invest in a new company – so you put some money in to prove, for example, that you can be paid the statutory minimum salary – then that could trigger a raising of the statutory minimum by the amount that you invested divided over the number of years in the visa term, i.e. “investments … Any such subtractions will be averaged over the length of time the applicant is being sponsored for, for the purpose of salary considerations”. :
For example, if you apply for a Skilled Worker visa for five years and you have invested 50k in the company, then the minimum would likely be increased by £10,000. In other words, £50k divided by five. So if the statutory minimum default was £70k, then it would be increased to £80k – those figures being purely examples.
So if there is money coming into a new entity which you have not set up, you do not control it, but it is going to be sponsoring you, then the investment sums would ideally not come from you or from a connected party.
The emphasis for the Home Office decision maker is on the genuineness of the role and whether the whole thing is being done mainly for immigration purposes.
Now the other point is the procedural mechanisms involved. Upon the in-country Skilled Worker visa application being made, the admin review would be deemed to have been withdrawn the day before. This would bring your permission under section 3C to an end, and you and your family would be overstaying in the UK from that point.
However, that overstaying would be disregarded for the purposes of the Skilled Worker visa application, as long as the application was made within 14 days. And that is under 39E.B2 of the rules:
The same would apply to the fresh dependent applications made by your family members, if you do have family here on the dependent routes, as long as those applications are also made within 14 days.
Those applications would be made within 14 days, because, upon making the Skilled Worker application – if you are issued a certificate of sponsorship – your permission under section 3C would be deemed to have terminated the day before, i.e. 24 hours before. So you would be within the 14 days.
So there would be a short period of technical overstaying – for example 24 hours. It will be disregarded for the purpose of the Skilled Worker application.
But by making that application and discontinuing your administrative review – if that is what you decide to do because you have been waiting so long and you cannot wait any longer – you would lose the opportunity to get your overseas representative extension or indefinite leave to remain, if the administrative review were to succeed.
So I hope that is helpful regarding some of the considerations you should take into account. I am happy to assist you with my consultation service if you want to get in touch. That is on the link below.