The new Statement of Changes to the Immigration Rules, including the sole representative / ‘representative of an overseas business’ visa, takes effect on 4 June 2020.
The new requirements include that you do not own or control the parent company either directly or indirectly:
“does not 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”.
Also, you cannot make your wife the main applicant on a sole representative visa, and then come into the UK as the dependent, if cumulatively you and your wife own the majority shares in the company:
“where the [dependent] applicant is accompanying or joining a person granted entry clearance or leave to enter or limited leave to remain as the sole representative of an overseas business within the meaning of paragraph 144(ii)(a), the applicant does not 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”.
The new sole representative (representative of an overseas business) eligibility requirements from 4 June 2020 are:
The overseas parent company will need to:
Be an active and trading overseas business;
1. Have, and continue to have, its headquarters and principal place of business outside the United Kingdom;
2. Have no active branch, subsidiary or other representative in the UK;
3. Intend to establish and operate a branch or wholly-owned subsidiary in the UK:
The branch or subsidiary will need to:
1. Actively trade in the same type of business as the overseas business;
2. Not be established solely for the purpose of facilitating the entry and stay of the sole representative;
3. Intend to maintain the centre of its operations overseas.
You will have to genuinely:
1. Have been recruited and taken on as an employee outside the United Kingdom, by the overseas parent company;
2. Be an existing senior employee of the overseas business;
3. Have the skills, experience and knowledge of the overseas business necessary to undertake the role of sole representative of the overseas business in the UK;
4. Have full authority to negotiate and take operational decisions on behalf of the overseas business;
Intend to be employed full-time as a representative of the overseas business;
5. Not engage in business of your own or represent any other business in the United Kingdom;
6. Not 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;
7. Speak and Understand English to CEFR Level A1;
8. Be able to maintain and accommodate yourself and your dependents.
Hi in this video I’m going to explain the changes to the immigration rules and how these affect these sole representative route or representative of an overseas business visa as it’s known so this is an important means of coming into the UK to set up a branch or subsidiary of an overseas business and I speak about it a lot a lot on this channel and after several videos covering it on this channel now this is these changes are coming up in the statement of changes the immigration rules which are going to take effect from the fourth of June of this year now the first major change that I want to highlight is the requirement in relation to majority control so it was a requirement under the rules and I’ve just highlighted it here that you cannot be a majority shareholder in the overseas business but what they’ve done now has changed that this is going forward for future applications from the 4th of June to say that you’ve got to not only should you not be a majority shareholder but you should not have a majority stake in the business or otherwise own or control the overseas business and that can either be through a shell or shareholding or any other arrangement and is sometimes the case in a certain countries in the Middle East on good guitar for example this one country where you need to have a local person who’s the director or owner of the company and then you might have a you know a side contract I’m relating to the control of the business so basically any such arrangements would need to be disclosed and I you would not qualify for the Sourabh sensitive visa if through some arrangement other than a direct shareholding you in fact controlled the business you owned or controlled the business so they strengthened up that provision but it’s an it’s also the case that sometimes people reduce their shareholding in order to qualify under the rules and that has always been quite difficult because if you just have a look at this provision you’ve got to provide a full description of the company’s activities including details of the company’s assets and accounts and the company’s share distribution for the previous year so if you’ve recently changed the shareholding of share distribution then that will be apparent from the previous documents that you that you submit for the earlier year so that so that’s always been difficult but they have strengthened that now through the amendment that that I’ve just explained now the other important requirement is this and it relates to spouses or partners so I do I do I speak to people I typically but not always men whose wives have some role in the business and what you can’t do now is make your spouse partner a same-sex partner but typically in the examples I’ve dealt with your wife you can’t you know gift her shares in the business and then have her apply so that you’re on a dependent application and you could see what this might this thought might occur to people on a dependent visa you’re not restricted in terms of your work in the UK or the business do you engage in in the UK so there may be a temptation to gifted someone who’s close and trusted so you know that might be your spouse where they apply is the main applicant if they’ve been involved in the business but if it was specifically introduced the provision which would have the effect of preventing that the result of it is that your spouse would have the your spouse and you would have control of the business and I’ll just bring up just bring up the provision here so you can see that this says mmm and this is this is in the requirements for partners I can take you to the name of quite some requirements in a minute but it says where the up where the applicant does as I say your spouse your wife lets in in this example it is accompanying or joining you and you’ve been granted entry clearance or leave to remain under the sole representative category the applicant does not have a majority stake in or otherwise control that oversees business whether that ownership or control is by means of a shareholding partnership agreement sole proprietorship or any other arrangement so this would mean that your spouse wouldn’t be able to have majority shares in the business so you can you couldn’t reach redistribute their shares between you and your wife so that your wife had the majority shares in the business and you had them and not minority shares and the other point is that is that if there was a standalone a dependent application then your spouse in their own right could not have majority shares in the business I’m so it’s conceivable that you could still apply where each of you had minority shares this is you know if your if your spouse is involved in the business each of you had minority shares and cumulatively you did not together have more than majority shares in the business but there’s another point that’s coming in in these amendments and that’s one of genuineness and there’s an expressed provision now that has the effect that you cannot be applying merely to facilitate immigration objectives which is quite understandable to those who’s got to be genuine business reasons for doing what you’re proposing to do and so I think any arrangement where it involves your spouse may lead to difficulties because it would it could trigger at least a consideration of genuineness of whether your application was genuine or a means of facilitating immigration control I think if there’s been any recent distribution of shares between husband and wife while one or both of them are applicants then there’s at least a risk of that falling being deemed fall foul of the of the arrangement so I come I come in a moment to the overview of this route and any other options that you might have but let’s just go on to that what the new requirements are now so as I say from 4th of June 2020 I’m there’s three sets of requirements basically you have to think about the requirements for your you know for the overseas business for the branch or subsidiary you’re setting up in the UK and then requirements for you so to start with the requirement for the overseas company has got to be active and active and trading overseas business and that’s an that’s a new requirement but I suppose it’s always been implied in the in the rules and you’ve got to have and continued it’s got to have and continue to have its headquarters in principal place of business outside of the United Kingdom so that includes through the visa term so you can’t just move the business to the UK and have your headquarters here then you’ve got to have an active branch have no active branch subsidiary or other representative in the UK before you apply and then you’ve got to intend to establish or operate a branch or wholly owned subsidiary in the UK next for the requirements of the point or subsidiary it’s got to actively trade in the same type of business as the overseas business and the language here is slightly clearer than under the old rules that referred to the business category but it’s basically third type of business so slightly less cryptic now next the branch of surgery must not be established for the sole purpose of facilitating entry and stay of the sole representative so that was my point it can’t be me to facilitate immigration objectives and then it wouldn’t the intention will need to be to maintain the centre of the operations overseas then the requirements in relation to you are that you’ve been recruited and taken on as an employee outside of the United Kingdom by the overseas parent company that you’re an existing senior employee of the overseas company so it’s difficult if you’re just appointed for this purpose you need to have that you know an employment contract in place you need to have the skills and experience or knowledge of the overseas business necessary to undertake the role of sole representative of the overseas business in the UK I need to have the authority to negotiate and take operational decisions on behalf of the overseas business the intention must be to employ you full-time as the representative of the overseas business and you mustn’t engage in business of your own or represent any other business in the UK you must not have a majority stake in or otherwise own or control the overseas business this is the point I was explaining before you’ve got to speak and understand English level a1 which is very basic and I said I would say that’s it continues to be a advantage of this visa route is that the for some that the level of English required is very low that’s in speaking and an understanding and then you must be able to accommodate yourself and your dependents and so where does this leave us overall so I think that so representative visa is still a great visa route if you are the senior employee of an existing business you’re looking to come overseas I think where there are you know tensions or additional considerations that come into play or where if you’re the owner manager of your business of the business then it can be tricky to come as a sole representative of that of their business because you’re effectively the prime mover whereas this business this visa route is designed for senior employees rather than rather than owner managers and now under the new rules if you restructure things and redistribute and everything then it will look beyond that to see what the substance of the arrangements are on whether that in fact still means that you have control over the business I’m likewise where spouses are involved if you involve your spouse in the business have her applies the main applicant and you applies the dependent that’s very difficult to achieve now under the rules and if you’re if things have restructured so that your spouse or wife has more than 50% of the shares then that would mean that she would not be able to come in as a dependent under this route so I think one of the continued advantages though is the English requirement which is lower than the other business immigration routes and comparing this to the innovative visa what in and start-up visas well I did an update in yesterday’s live stream in my last livestream where I went over the impact of the statement of changes on the start-up and innovative visa and I would say that if you’re in an innovative area of the economy if you’re in tech already let’s say or you do have an innovative proposal for the UK then there are significant benefits to start-up or innovative visa it does of course depend on your personal circumstances so important to take advice on that if you did want to contact me I’d be very happy to have a consultation with you may contact details are in the description below you can drop me an email for the good advice and assistance and feel free to subscribe I’m going to be going over the other aspects of the statement of changes to the immigration rules and how they affect the exceptional talent provisions in the next live stream thank you very much for listening and I look forward to see you in the next video