Introduction
Step one: determining whether UK Expansion Worker licence is appropriate
Step two: preparing the application
Step three: completing and submitting the application
Step four: complying with requests from Home Office and awaiting decision
Comment


Introduction

The sponsor licence requirements for businesses seeking to set up in the United Kingdom under the Expansion Worker route differ in some significant respects from those applicable to other sponsor licence applicants. This article provides an overview of how the process works.

The UK Expansion Worker route enables at any one time up to five senior managers or specialist employees of an established overseas business to set up a UK branch or wholly owned UK subsidiary. Unlike its predecessor, the Representative of an Overseas Business route, which was for sole representatives, a sponsor licence is required. Since the UK business acts as the sponsor under this route and will not already be active and trading at the time of application, there is a modified sponsor licence process to follow.

Step one: determining whether UK Expansion Worker licence is appropriate

A UK Expansion Worker licence will only be appropriate to apply for if:

  • the overseas business intends to set up a commercial trading presence in the United Kingdom, either as a branch or wholly-owned subsidiary;
  • there is a UK "footprint" in terms of the United Kingdom branch or subsidiary having been registered with Companies House, or of having secured premises in the United Kingdom; and
  • the UK business is not already active and trading in the United Kingdom.

If the overseas business does not intend to establish a branch or subsidiary in the United Kingdom but has a contract with a UK business, the Service Supplier or Secondment Worker routes may be relevant options. This would require the UK client business to act as the sponsor.

If a UK trading presence has already been set up, the UK Expansion Worker route will not be appropriate. The Senior or Specialist Worker and/or Skilled Worker routes should be considered instead.

Step two: preparing the application

Before applying for a UK Expansion Worker sponsor licence, the business must:

  • decide who will be the key personnel for the licence;
  • compile supporting documents; and
  • determine UK human resources systems and policies.

Key personnel
The following roles must be allocated before making the application:

  • authorising officer (AO) – this is the individual in the UK business who is ultimately responsible for oversight of activities under the licence, including the appointment of key personnel and ensuring compliance with sponsor duties;
  • key contact – this is the main point of contact for the Home Office; and
  • level one user – there must be at least level one user, as this role oversees the day-to-day activities of the licence on the Home Office's sponsor management system (SMS).

Additional SMS level one users and level two users (who only have limited access to the SMS) can be added once the sponsor licence has been granted.

The general rule is that all key personnel must be based in the United Kingdom. However, because businesses under the UK Expansion Worker route will not be active and trading in the United Kingdom, the Home Office has introduced a "provisional" sponsor licence rating process to cover the situation where the proposed AO needs to be sponsored to enter the United Kingdom.

If the provisional sponsor licence process is used and the application is successful, the licence will initially be granted with the capability to sponsor only one worker (the AO). This is done through setting a certificate of sponsorship (CoS) allocation of one place. A CoS is in effect an electronic work permit, which an applicant for immigration permission must include the reference number of as part of their application.

The AO must be nominated in the application as the level one user and must create and assign a CoS for themselves. They must then apply for entry clearance under the UK Expansion Worker route.

Unlike the previous sole representative route, there is no prohibition on a UK Expansion Worker migrant (AO or otherwise) having a majority interest or control over the overseas business.

After the AO's entry clearance application is approved (and irrespective of whether they have yet travelled to the United Kingdom), the AO must update their details on the SMS to include:

  • the type of permission that they have (UK Expansion Worker);
  • the expiry date of their permission;
  • their Home Office reference number (this can be their visa application form number, their biometric residence permit number or any other reference number provided by the Home Office to the AO); and
  • their UK address (when they know this).

They also need to ask for the licence rating to be changed from provisional to A-rating. Once the A-rating has been granted, a request for a CoS allocation of up to an additional four places can be made. This would take the number of individuals who could be sponsored under the licence up to five, including the AO.

The AO must ensure they enter the United Kingdom on their entry clearance within 28 days of the start date noted on their CoS.

If the UK business has a locally recruited person who can act as the AO, they can apply for an A-rating (rather than a provisional rating) and request a CoS allocation of up to five places as part of the licence application.

Supporting documents
The supporting documents for a UK Expansion Worker sponsor licence are also different from other licences in the following respects:

  • only a UK footprint (as described above) needs to be shown – it is not necessary, for example, to have a UK business bank account already set up with an institution regulated by the Financial Conduct Authority and the Prudential Regulation Authority;
  • evidence must be provided that the overseas business has been active and trading throughout at least the three years immediately before the application, unless the application is being made by a Japanese business under the UK-Japan Comprehensive Economic Partnership Agreement, in which case the overseas business must only be genuinely trading at the time of the application and will only be allowed to sponsor one worker at a time; and
  • business planning and financial evidence must be provided to demonstrate a credible expansion plan to establish a UK business of the same type as the overseas business within two years.

There are limited exceptions to having to provide the overseas trading and credible expansion plan – for example, where the overseas business is listed on certain London or international stock exchanges, or if the viability of the UK expansion is verified by a UK government department.

HR systems and policies
Sponsor licence holders must fulfil certain compliance duties, recordkeeping duties and reporting duties. The UK business must put in place human resources policies that cover the sponsor licence duties and be prepared to comment and/or show them to the Home Office.

Step three: completing and submitting the application

The form for the sponsor licence application is an online form, which must be submitted by the AO. The supporting documents for the application must then be submitted to the Home Office within five working days.

Step four: complying with requests from Home Office and awaiting decision

The Home Office may ask for additional information or documents and may also visit the UK premises (if premises have been secured) to check that the appropriate human resources systems are in place.

Sponsor licence applications are currently taking two to three months on average to consider. Processing can take longer if there is higher than usual demand, additional queries are raised, or a pre-licence visit is considered appropriate.

A pre-licence priority service is available at a cost of £500 per application. This service allows for straight-forward applications to be considered within 10 working days of fee payment or submission of a fully complete application and supporting documents (whichever is later); however, availability of this cannot be guaranteed.

Comment

If the application is successful, a UK Expansion Worker licence is granted for four years and cannot be renewed. The expectation is that the UK business should normally be set up within two years.

It is not possible for more than five people to be sponsored under the UK Expansion Worker licence at any one time. Therefore, if one of five sponsored workers stops having UK immigration permission for any reason, it would be possible to ask for an additional CoS allocation of one to replace that person. It would not be possible to request a CoS allocation of two as that would mean that six people could be in the United Kingdom at the one time.

Employers should plan UK Expansion Worker sponsor licence applications as early as possible due to the detailed supporting documents required and the high general demand for sponsor licences at present.

For further information on this topic please contact Andrew Osborne, Supinder Singh Sian or Li Xiang at Lewis Silkin by telephone (+44 20 7074 8000‚Äč) or email ([email protected], [email protected]m or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.