Setting up in the UK – a UK immigration guide for US companies

What are the Immigration options for a US business wishing to setup in the UK? As some of the best Immigration lawyers in London, we look at the different visa routes available for US companies looking to establish a presence in the UK and ensure that key workers can work in the UK.

It’s a relatively straightforward process to set up a UK company – even for non-UK residents. However, more complex are the various Immigration routes available so that you can ensure that key personnel can be in the UK to oversee the process and to be on hand once the legal formalities of setting up a company are completed, and the real work begins.

The sole representative route is available if you’re planning to set up a branch or wholly owned subsidiary of your US company in the UK. As the name implies, it’s for a ‘sole representative’ to come to the UK with the intention of setting up your company’s ‘first commercial presence’ in the UK. There are eligibility requirements which mean the sole representative must

- Be recruited an employed outside the UK, by a company whose HQ and principal place of business is also outside the UK

- Must be very experienced in and knowledgeable about the industry concerned

- Hold a senior position in the company, without being a major shareholder, and have decision making powers.

It won’t necessarily defeat the visa application if your company already has a legal entity in the UK, as long as it does not employ staff or carry out business.

Your sole representative may have to satisfy an English language requirement. If he or she is a US citizen, they are exempt from this. They will have to provide documentation in support of the application – a UK Immigration lawyer will be able to assist you to make sure your documentation will satisfy the UK Visas and Immigration entry clearance officer dealing with your application.

As a sole representative, you will have to pay the healthcare surcharge which will allow you to access medical treatment on the NHS while you’re in the UK.

An individual can apply for a Tier 1 Entrepreneur Visa up to 3 months before they want to travel to the UK. This route is available to individuals who have funds available to invest in a business in the UK and will be involved in that business. The minimum investment is £50,000 and there are conditions specifying where the money must come from. There is more flexibility around the source of the funds if you can invest £200,000 in the UK (or have already done so). Alongside eligibility requirements, some important points to note as regards the Tier 1 Entrepreneur Visa route are:

- The Genuine entrepreneur Test which is designed to demonstrate that you are genuinely coming to the UK to set up or work in a business and to invest the funds you have declared.

- The need for a detailed business plan. Part of the Genuine entrepreneur Test, but it’s fundamental to have a clear business plan about what you’re proposing for the UK business.

- There a clear ‘job creation’ targets to fulfil, particularly if you are planning to extend your Tier 1 Entrepreneur Visa beyond the initial period.

- The money that is to be invested can be available to the business rather than the individual; it can also be provided by an existing business, provided it is subject to control by the Tier 1 entrepreneur within that business.

Alongside the personal eligibility and funding requirements for a Tier 1 Entrepreneur Visa, it’s important to understand the criteria that apply in relation to job creation – your business must create at least 2 full time roles for the UK settled workforce.

Once you’ve established your UK business, how do you ensure that you can bring in the right team members to work with you. The UK Immigration Rules include the option for UK businesses to recruit from overseas, including from the US using the Sponsorship Licence. Once the employing organisation has a licence in place, then subject to conditions, it can issue certificates of sponsorship in support of employees coming to work in the business from outside the EU/EEA. The Sponsorship Licence ‘Tier 2 visa route’ is be complex, primarily because it involves the 2 stages – firstly obtaining the licence, secondly, using the system appropriately and in accordance with the relevant conditions in place. In particular

- You may have to satisfy the Resident Labour Market test for any given vacancy. This involves advertising the role within the UK to see if there are any suitable candidates in the settled workforce

- There are ongoing compliance and audit obligations. Record-keeping is very important for organisations issuing certificates of sponsorship to overseas employees

- Certificates of Sponsorship are not transferable from one employee to another

It’s also worth bearing in mind that there is a cap on new employees coming to the UK under this route. Recent news that doctors and nurses (who have taken up about 40% of the allocation under the skilled worker cap) will be removed from the cap (currently 20,700 per annum) should ease the situation significantly.

Obviously with the different options available for US companies looking to set up a branch or subsidiary in the UK it’s vital to make sure you make the correct applications and use the correct visa route so that you can achieve your business aims. UK business immigration law is complex, so using the best Immigration lawyers you can afford will smooth the process.