Rather than outlay major capital on opening a branch office in the UK straight away, many companies choose to send a single employer to Britain to test the market, act as a sales representative or develop a UK presence.
The Sole Representative of an Overseas Business visa provides a route of entry and stay in the UK for:
- individuals who will be the sole UK representative of an overseas business which seeks to establish and operate a registered branch or wholly-owned subsidiary in the UK, and
- media employees of overseas newspapers, news agencies or broadcasting organisations who are being posted by their overseas employer on a long-term UK posting
Entry into the UK under this category must be for the overseas company’s benefit, not the individual representative. If the budget allocated to the venture is unrealistic when compared with the head organisation’s size and trading activities, or if diversification into the UK involves trading in a sector where the company has no previous experience, the UK Home Office’s suspicions will be raised.
To be eligible for entry as a Sole Representative of an Overseas Business, a person must:
- be an existing employee of a business which recruited the individual abroad and which has its headquarters and main place of business outside the UK
- be a senior employee of a business overseas which does not have a branch, subsidiary or other representative in the UK
- have full authority to take operational decisions on behalf of the overseas business when representing it by establishing and operating either:
- a registered UK branch involved with the same type of business activity as the overseas business, or
- a wholly-owned UK subsidiary involved with the same type of business activity as the overseas business
- be the sole representative of the employer in the UK in this category
- intend to be employed full time as the representative of the overseas business
- not be a majority shareholder in the overseas business
The employee must have documents to show the head company’s business activities, statement of accounts and share distribution.
Evidence of the following will also be required:
- the overseas company’s intention to establish either a wholly-owned subsidiary or register a branch in the UK in the same business activity as the parent company, and
- the applicant is fully familiar with the company’s activities and has full powers to negotiate and take operational decisions without requesting permission from the parent company
A notarised statement will also be required which confirms that the applicant is the sole representative of the company, that the company’s main business activities will be centred overseas and the representative will work solely for the company and not undertake any activities in their own interest.
The representative must also meet the English language requirement and show that they can support themselves and any family members that accompany them to the UK.
Only one person can be considered to be a sole representative of an overseas company at any one time. If the business is planning to bring two representatives to the UK, one will need to come first and acquire a Tier 2 licence for the business to enable the second representative to apply for Tier 2 leave.
Where a sole representative's contract is terminated, the Home Office will expect their replacement to be sponsored under Tier 2 if the UK branch/subsidiary is already established and can be registered as a Tier 2 sponsor. Alternatively, they can be replaced by another sole representative where termination occurs early on and the UK business has not yet acquired premises or started trading.
Home Office considerations
The Home Office will carefully consider both the overseas and proposed UK business and its activities. It is imperative that organisations seeking a Sole Representative of an Overseas Business visa instruct an experienced immigration solicitor who can identify the strengths and weaknesses of any application and deal quickly and competently with questions from Home Office officials.
When considering the overseas business, the Home Office will assess whether the business is a genuine commercial enterprise by taking into account:
- how long the overseas business has been established—businesses operating for less than 12 months will have to justify why they need to establish an operation in the UK
- the turnover and profitability of the overseas business
- the business's registered offices—which must be outside the UK
- the type of business—this must be the same as the intended business in the UK
- the number of employees the overseas business has—where this number is small this may cast doubt on whether the overseas business will remain the headquarters and/or main business
- whether, as a result of the establishment of the UK business, the overseas business premises will cease to be the headquarters and/or main operation—it is not necessarily fatal to the application if the UK operation may at some point outgrow its parent, but it will be fatal if the overseas business will cease trading, and
- the role of the proposed sole representative in the overseas business—where they are the driving force in the overseas business, this may cast doubt on whether the overseas business will remain the organisation’s main base
Is the Sole Representative of an Overseas Business visa right for your business?
The Representative of an Overseas Business category should be used in situations where the person will be based in the UK on a long-term basis. The visa lasts three years, with an opportunity for the representative to extend it for another two.
It may be more appropriate for a representative to apply Tier 2 categories, especially if one or more of the following factors are present:
- the overseas company already has an employee in the UK as a sole representative and wishes to send another representative
- the sole representative will be employed directly by the UK business
- the duties and responsibilities of the sole representative change such that the new role would not meet the requirements for this category
- the activities of the UK business change such that it no longer is concerned with the same type of business activity as the overseas business
- the overseas business ceases to have its headquarters and/or main place of business outside the UK, or
- the UK subsidiary ceases to be wholly owned by the overseas business
Your immigration lawyer will advise you as to which category will be most advantageous to your business situation.
OTS Solicitors is one of the most respected immigration law firms in London. By making an appointment with one of our Immigration Solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We will assist you with all aspects of business immigration law, including applying for a Sole Representative of an Overseas Business visa. If you wish to discuss any of the points raised in this blog, please phone our London office on 0207 936 9960.
Posted on: Tuesday, 30 August, 2016