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Immigration

Particularly given the global economic climate in recent years a number of countries, including the UK, have tightened their immigration laws. With a talent shortage in certain sectors and more complex rules, arranging UK work visas for key non-European hires is an important HR issue for UK employers.

Most citizens of the European Economic Area (EEA) have the right to work in the UK without restriction. Some non-EEA citizens may be able to start work in the UK immediately if they have a general UK visa already, such as a partner/spouse visa or a personal skilled Tier 1 visa. If not, they will need a new work visa.

Business travel

Non-European employees frequently want to travel to the UK for business reasons. They may visit the UK, but citizens of certain countries are required to apply for a visit visa prior to travel (they are known as 'visa nationals'). In all cases, the visitor must only perform permissible business activities (e.g. business meetings) while in the UK and only come to the UK for short trips, even though a legally compliant visitor can technically stay in the UK for up to six months cumulatively in any 12 month period. It is important that the business visitor does not perform productive "work" and does not appear to the UK authorities to be working.

people paperchainVisa Applications

Generally, initial visa applications must be made to the British Embassy/Consulate in the applicant's country of nationality or residency (if different) – visitors to the UK cannot apply in the UK for full visas. Family members of applicants getting Tier 1 or Tier 2 visas can obtain dependants visas too and the applicant's qualifying partner or spouse can work in the UK without restriction.

Sole Representative Visa

This visa is only available for an overseas business that does not yet have a presence in the UK. It allows one senior and established employee of the overseas entity who owns 50% or less of the business to come to the UK to set up and run a new wholly owned UK subsidiary or registered UK establishment. Prior to applying for this visa there must not be any trading presence or employees already in the UK, although a shell company without employees is permitted.

Sponsor Licence

A UK employer that wants to hire a non-EEA citizen on a work visa will need to apply for a sponsor licence so that it can sponsor Tier 2 work permits. It cannot do this until the UK office has at least one employee "on the ground" working full-time in the UK to oversee and take responsibility for the licence. This person can be any nationality provided that he/she has the right to work in the UK for that business. There are minimum skill and salary levels for all Tier 2 visas and other eligibility and compliance conditions for the UK employer.

Tier 2 General Visa

A sponsor licence is required before an employee can apply for this visa. Tier 2 General is used for new non-EEA hires into the UK business, for example the recruitment of an employee currently sponsored on a Tier 2 General visa with another UK employer. It is particularly beneficial for migrants wanting to have the option of UK permanent residency after five years, as this is not available to Tier 2 ICT employees. However, the sponsor may have to go through additional process and delay, because often it must advertise the role to the resident workforce for at least 28 days and request permission from the UK's immigration authorities to hire against the UK's immigration cap if the employee is resident outside the UK.

Tier 2 Intra Company Transfer (ICT) Visa

Once a sponsor licence has been obtained, an overseas office linked to the UK business can transfer employees (usually with at least 12 months' employment service) to the UK on Tier 2 ICT visas so that they can work for the UK entity. Tier 2 ICT visas do not lead to permanent residency and the total visa duration is capped. The benefit of this visa is that the UK entity will be exempt from having to advertise the positions in the UK and from the UK's immigration cap. This is the most flexible and usual work visa route for international businesses.

Tier 1 Entrepreneur Visa

This is a personal visa. No sponsor licence is needed and therefore it can be arranged faster than a Tier 2 visa. The visa is ideal for individuals wanting ownership or involvement with a UK business. The visa requires personal investment of at least £200,000 (£50,000 in some limited cases) into a new or existing UK business, registration as self-employed or a UK director and creation of two or more full-time jobs for settled workers lasting at least 12 months each. Work is permitted for the business that receives the investment, but unlike a Tier 2 visa, work is not a condition of the visa. As part of the visa application process, the UK immigration authorities will assess the entrepreneur's prior track record and future plans in a 'genuine entrepreneur' test.

The Tier 1 Exceptional Talent is a personal visa for recognised or emerging leaders in their field. It requires prior endorsement by a third party body, who will assess the applicant's credentials and track record against set criteria when deciding whether to endorse. Tech City UK (Tech Nation) is the appropriate endorsing body in the digital technology sector. There are up to 200 visas available per year for applicants in the tech category. It can be granted for up to 5 years, allows the applicant to work for any employer and also is eligible for permanent residency.

Other visas

There are other temporary and long-term UK visa options, which will depend on the applicant's circumstances and objectives. Advice should always be sought to determine the appropriate visa route in each case.

Compliancein handcuffs

The UK immigration authorities are focusing on enforcement and are targeting "rogue" employers or those perceived to abuse the system. Penalties for employers who employ illegal workers include a civil penalty of up to £20,000 per illegal worker plus a criminal offence of "knowingly employing" illegal workers, which attracts a custodial sentence of up to two years. As a result, the checks made on employers and individuals applying for UK visas are thorough, and there limited rights of appeal.

A UK employer that holds a sponsor licence is subject to additional specific obligations, including in relation to record keeping and reporting duties. UK Visas & Immigration has the right to conduct unannounced visits/audits on sponsors at any time, so it is essential for the UK business to conduct regular immigration compliance health checks.

UK Visas & Immigration regularly updates the immigration rules and changes can come with little or no notice. Immigration advice should always be sought before an application is made.