This new addition to the Getting The Deal Through series offers a comparative summary of corporate immigration in the global sphere, with contributions from leading international practitioners. Topics covered include: short and long term transfers, permit procedures and timelines, routes for entrepreneurs and highly skilled, extensions and variations of permits and rights of dependants.
Overview
In broad terms what is your government’s policy towards business immigration?
The UK policy towards immigration distinguishes between European Economic Area (EEA) (and Swiss) nationals and non-EEA nationals.
EEA and Swiss nationals currently have the right to work in the UK, with no need to apply for entry clearance or leave to remain (a visa). An annual cap of 20,700 has been set on the number of non-EEA migrants entering the UK for work under the Tier 2 route, which affects non-EEA nationals who have been offered a job by a company based in the UK. This cap does not apply to individuals who are earning £159,600 or more, individuals who are already in the UK and wish to extend their immigration permission in a permissible category (unless the individual is in the UK as a Tier 4 partner) or those coming in under the Tier 2 (intra-company transfer (ICT)) subcategory.
A number of other measures have also been introduced by the UK government to curb immigration into the UK, including the introduction of a mandatory 12-month cooling-off period outside the UK for some Tier 2 migrants and restrictions on in-country switching between categories.
Short-term transfers
In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?
A short-term visa would be necessary for someone who works abroad but who intends to visit the UK for short periods of time in order to transact business on their or their employer’s behalf. Note that certain nationals (known as ‘visa nationals’) are required to obtain business visit visas in order to enter the UK for this purpose. Other non-visa nationals can enter the UK and present themselves to an immigration officer at their port of arrival. It is important to check whether an individual requires a visa before travelling to the UK. Short-term visas can be obtained by making a business visitor visa application to a UK diplomatic post in the individual’s country of origin or legal residence. It is important to note that the need to obtain a visa for the UK is determined by the activity that the Individual Is undertaking and not the duration of the visit. As such If an individual Is undertaking 'productive work', beyond that of business meetings a work permit will be required, Irrespective of the duration of their visit to the UK (see below)
What are the main restrictions on a business visitor?
A business visitor cannot undertake work activities while in the UK. There is a list of permissible activities that a business visitor is allowed to undertake, which includes attending meetings, interviews, conferences, one-off training sessions and conducting site visits. Note, this is not an exhaustive list. More recently, the visitor rules have been expanded and business visitors may undertake recreational study for up to 30 days as long as this is not the main reason for the visit.
Business visitors can remain in the UK for a maximum of 180 days at any one time providing the expiry date on their visa allows them to do so. Frequent business visitors can be issued with business visitor visas for two, five or 10 years. However, business visitors must not spend more than six months in the UK in any rolling 12-month period.
A further restriction is that business visitors should not receive their salary from a UK source, although they can receive reasonable expenses to cover the cost of travel and subsistence. Note that the only time a salary from a UK source is permissible is if a multinational company administers their entire payroll from the UK.
Is work authorisation or immigration permission needed to give or receive short-term training?
An individual may require immigration permission to give or receive short-term training. Depending upon the specific circumstances of the individual or the type of training, it may be possible to qualify as a business visitor. In the event that the business visitor criteria are not met, the individual would be required to apply under a suitable Tier 2 category.
Are transit visas required to travel through your country? How are these obtained? Are they only required for certain nationals?
Transit visas are required in certain circumstances for specific nationals. If an individual from one of the specified countries is staying in the UK for up to 48 hours before continuing their journey to another country, they will need to apply for a visitor-in-transit visa. If the individual wishes to stay for longer than 48 hours, they will need to apply for a visitor visa.
Certain nationals who wish to transit through the UK will require direct airside transit visas. These visas are valid for up to 24 hours and individuals who have been granted this visa do not enter the UK nor do they pass through immigration control. Individuals should check the relevant list of nationalities that are required to obtain a direct airside transit visa before transiting the UK.
Long-term transfers
What are the main work and business permit categories used by companies to transfer skilled staff?
The most widely used immigration category is the Tier 2 skilled workers category. The Tier 2 (General) subcategory can be used to facilitate the employment of a new hire to the company and bring over employees who will be undertaking a permanent UK role that cannot be filled by a settled worker. The Tier 2 (ICT) subcategory allows the company, provided it is a multinational company, to temporarily move existing employees to the UK. The Tier 2 (ICT) subcategory is broken down into a number of specific subcategories: Long-term Staff and Graduate Trainee, which can be utilised depending on the business’s needs.
What are the procedures for obtaining these permissions? At what stage can work begin?
The Tier 2 category is the main category that UK companies use to employ skilled, non-EEA staff. In order to sponsor an individual under the Tier 2 category, an employer must first obtain a Tier 2 sponsor licence by applying to the Home Office. The Home Office is the UK government department that deals with all immigration applications. If the sponsor licence is granted, the employer will be able to issue certificates of sponsorship to their skilled migrant staff, providing they meet the relevant criteria. The migrant must then apply for entry clearance (if applying outside the UK) or leave to remain (if applying from inside the UK) in order to be granted the requisite immigration permission to work in the UK. All of these steps must be undertaken before the individual can commence work in the UK. Please note that for applicants applying from outside the UK, they will typically be subject to the monthly quota (known as Restricted Certificates of Sponsorship) and this quota has, since late 2017, been frequently oversubscribed.
What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?
There is no minimum period of stay granted by the Home Office. The maximum duration a single visa can be issued under the most commonly used subcategories of Tier 2 is five years. This can be extended for up to nine years for staff earning £120,000 a year or more under Tier 2 (ICT) and six years under Tier 2 (General). Other subcategories have different periods of leave attached, which vary in length depending on the category.
How long does it typically take to process the main categories?
Processing times for Tier 2 applications are dependent upon a number of factors including, but not limited to, the subcategory under which the individual is applying, the country in which they are applying, the complexity of the matter and the availability of the required documents needed to process the application. Standard processing times from the point of commencing the application process to receiving the visa are approximately two to 12 weeks.
Some countries, for example the US, operate a priority service whereby applications are usually processed within approximately five working days from the date the documents are received by the UK diplomatic post abroad. Note this does not include the time required to prepare the application up to the point of submission. The availability of priority processing services is dependent on the country and the application category. At present, the Home Office is in the process of extending priority processing to a number of additional posts.
Is it necessary to obtain any benefits or facilities for staff to secure a work permit?
It is not necessary for employers to provide their employees with any benefits or facilities in order to obtain working immigration permission. However, when making a Tier 2 application, an employer may wish to certify that they will maintain and accommodate an employee for the first month of their employment. If an employer chooses not to do this then the individual will need to provide evidence to the Home Office that they have the requisite funds to meet this requirement by way of personal bank account statements.
Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?
The most commonly used immigration category is Tier 2, which is part of the points-based system. This immigration route is subject to a set of objective criteria, which means that all applications made under this category must meet the set points criteria and no discretion is permitted. However, it is possible in exceptional circumstances to have applications approved that fall outside the UK Immigration Rules.
Is there a special route for high net worth individuals or investors?
High net worth individuals may apply under the Tier 1 (Entrepreneur) or Tier 1 (Investor) categories. The Entrepreneur subcategory aims to allow individuals to invest in the UK by setting up or taking over and being actively involved in the running of a business. In order to qualify under this subcategory, applicants must have access to a minimum of £200,000 (or £50,000 in certain circumstances) in addition to meeting other mandatory criteria.
The Investor subcategory is designed for high net worth individuals who wish to make a substantial financial investment in the UK. Individuals must be able to invest a minimum of £2 million in the UK, in addition to meeting other mandatory criteria.
For both categories, the UK immigration regulations contain detailed requirements concerning the nature of the investment and the criteria for eligibility.
Is there a special route for highly skilled individuals?
The Tier 1 (Exceptional Talent) subcategory is for non-EEA migrants that are internationally recognised as world leaders or potential world-leading talent in the fields of science and the arts who wish to work in the UK. The subcategory is limited to 2,000 endorsements per year. These are divided between five designated ‘competent bodies’: the Royal Society (natural sciences and medical science research), Arts Council England, the British Academy (humanities and social sciences), the Royal Academy of Engineering and Tech City UK. Note that, should an applicant receive an endorsement, a visa is not automatically issued and the applicant must still meet further mandatory criteria.
In April 2012, the UK government also introduced the Tier 1 (Graduate Entrepreneur) subcategory that allows UK graduates, identified by UK higher education institutions as having developed world-class innovative ideas or entrepreneurial skills, to extend their stay in the UK after graduation to establish one or more businesses in the UK. This subcategory is limited to 2,000 places a year. Some 1,900 endorsements are allocated to higher education institutions to endorse graduates in any subject. One hundred endorsements are allocated to the Department for International Trade to endorse overseas graduates.
Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?
Under the Tier 1 (Investor) subcategory, an individual may be eligible to settle in the UK if they have been living in the UK for two, three or five years with enough assets and investments. The amount of time depends on the level of investment, which can be either cash or assets and a loan. Accelerated settlement status can be achieved by investing either £5 million (obtaining settlement after three years) or £10 million (obtaining settlement after two years). Applicants must invest the full relevant amount in UK government stocks and bonds or shares in UK trading companies.
Under the Tier 1 (Entrepreneur) subcategory, an individual may be eligible to settle in the UK if they have been living in the UK for three or five years. All Tier 1 (Entrepreneur) individuals who have invested the minimum required amount in a business in the UK can qualify for settlement after five years. If, after three years, the net number of settled employees has increased to 10 or the business has had a turnover or increased turnover of £5 million, the individual will be able to apply for settlement at that point.
Under the Tier 2 (General) route, individuals earning over £159,600 are exempt from the annual cap of certificates of sponsorship and the employer does not have to undertake the resident labour market test. Furthermore, individuals who have held a Tier 2 (General) visa within the previous 12 months and wish to make a subsequent Tier 2 application from outside the UK after their initial visa has expired, may have to spend 12 months outside the UK before they can reapply to return to the UK under the Tier 2 category, unless they are earning over £159,600.
Is there a minimum salary requirement for the main categories for company transfers?
There are minimum salary requirements applicable to the Tier 2 (ICT) subcategories. These vary depending on factors such as the length of the proposed UK assignment, type of role the non-EEA national will be undertaking in the UK and the subcategory under which they will be applying (typically £41,500 for Long-term Staff and £23,000 for Graduate Trainees. The Home Office publishes codes of practice that specify the minimum salary requirements for the role as well as minimum salary thresholds for the visa category. The employer should determine the relevant salary requirement for the sponsored worker by identifying the appropriate code that matches most closely to the job. If the individual is working in the UK for less than 12 months, they will be assessed on their pro rata yearly earnings.
Is there a quota system or resident labour market test?
There is a quota system in the UK that applies to non-EEA nationals who are being sponsored under the Tier 2 (General) subcategory. The quota (annual cap) applies to migrants applying for a visa from outside the UK and earning a salary of less than £159,600 or those applying from within the UK and switching from the Tier 4 partner category. The current quota limit is 20,700. There is also a limit of 2,000 places per year for individuals applying under the Tier 1 (Exceptional Talent) and a limit of 2,000 places for Tier 1 (Graduate Entrepreneur) categories.
The UK also requires a resident labour market test (advertising) to be completed for Tier 2 (General) applications unless the role qualifies for an exemption. Employers must demonstrate that they have advertised the vacancy to the resident labour market for a minimum of 28 days via two specific mediums and have been unable to find a suitable settled worker. The medium of advertising is dependent on the salary of the role being advertised.
Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?
The skill threshold for Tier 2 employment requires that a role is National Qualifications Framework level 6 or above. Individuals must have worked for the company for at least 12 months directly prior to a transfer if they will be applying under the Tier 2 (ICT) Long-term Staff subcategory, unless they are earning over £73,900. The Tier 2 (ICT) Graduate Trainee subcategory requires that the individual must have been employed by the company for a minimum of three months prior to the transfer.
Under the Tier 2 (General) subcategory, individuals must be able to demonstrate their competence in the English language.
Individuals applying under both categories must demonstrate that they have sufficient funds to maintain and support themselves and any dependants in the first month without having to resort to public funds. Employers are also able to certify this requirement for any Tier 2 migrants.
What is the process for third-party contractors to obtain work permission?
A third-party contractor may work on another company’s premises if there is a contract in place that enables the work to be undertaken. The sponsoring company must have full responsibility and control for the contractor’s duties, functions and output while they are working on the client company’s site.
If the contractor’s duties or responsibilities fall outside the scope of the contract between the client company and the sponsoring company, the contractor may have to be sponsored directly by the client company.
Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?
Individuals are no longer required to claim points for qualifications under the Tier 2 category. However, sponsors must be able to show that the individuals are suitably qualified for the role they are undertaking in the UK and they may still need to rely on their degree to meet the English language requirement.
In addition, individuals switching from the Tier 4 (Student/General) subcategory to the Tier 2 (General) subcategory within the UK will need to show that they have been awarded their degree, unless they are completing a PhD.
Individuals applying under the Tier 1 (Exceptional Talent) subcategory will need to be endorsed by the relevant competent body as designated by the Home Office. Each of the competent bodies has their own requirements, which take into account the individual’s qualifications, skills, career history and potential contribution to the UK.
Extensions and variations
Can a short-term visa be converted in-country into longer-term authorisations? If so, what is the process?
Restrictions apply on switching immigration categories within the UK and individuals with Tier 2 permission cannot convert their short-term visa into a longer-term visa while in the UK. Individuals must return to their country of origin or legal residence and apply at a UK diplomatic post for new immigration permission under a different category or subcategory.
Individuals who have held a Tier 2 (ICT) Long-term Staff visa within the previous 12 months and who wish to make a further Tier 2 application will be subject to a 12-month cooling-off period outside the UK before they can re-apply. The exceptions to this are if the individual will be making an application under the Tier 2 (ICT) Long-term Staff visa subcategory, will be earning a minimum salary of £120,000 or if they are applying under Tier 2 (General) and will be earning a minimum salary of £159,600 or where they were only being sponsored in Tier 2 as recorded by the certificate of sponsorship for a period of three months or less.
Can long-term immigration permission be extended?
Broadly speaking, immigration permission can be extended but the maximum period varies depending on the category.
Individuals issued with a certificate of sponsorship under the Tier 2 (ICT) Long-term Staff subcategory can only extend their stay up to a maximum of five years (unless they are earning a salary of £120,000 or more, in which case the maximum is nine years). Once the maximum period is complete, the individual must leave the UK and cannot apply for further Tier 2 permission for a period of 12 months unless they are receiving a salary package of £120,000 or more.
Tier 2 (General) migrants can extend their leave up to a maximum of six years in total and may be eligible to apply for indefinite leave to remain in the UK (settlement) after five years. If they do not qualify for settlement, they must leave the UK once they have spent six years in the country. They will also be subject to the 12-month cooling-off period outside the UK, unless they are earning a salary of £159,600 or more.
What are the rules on and implications of exit and re-entry for work permits?
As a general rule, individuals are able to exit and re-enter the UK until the expiry of their visa. However, if individuals will be based primarily outside the UK, they should apply for a multiple-entry visa.
If an individual remains outside the UK for a continuous period of more than two years, their immigration permission may automatically lapse.
Further, individuals should note that if they eventually wish to apply for settlement in the UK or UK citizenship, absences outside the UK may have an effect on their eligibility for any such application and should therefore be monitored.
How can immigrants qualify for permanent residency or citizenship?
Permanent residency in the UK is referred to as ‘settlement’ or ‘indefinite leave to remain’. If an individual is in a category that permits settlement, and provided they meet the requirements in place at the time they apply, they will usually be able to apply after a five-year residence period. Individuals under the Tier 1 (Investor) or Tier 1 (Entrepreneur) subcategories may be eligible to apply for settlement after two (Investor) or three (Investor and Entrepreneur) years if certain criteria are met. Note that certain Tier 2 (ICT) migrants who submitted their entry clearance application after 6 April 2010 are not eligible for settlement after five years of continuous residence spent in the UK but may be eligible for settlement after 10 years. They will be required to meet the eligibility requirements for this category at the time of application.
A migrant’s absences from the UK may affect their ability to apply for settlement. During the five-year residence period in the UK, there must be no more than 180 days’ absences in any rolling 12-month period, unless there are exceptional circumstances. Settlement status can lapse if an individual remains outside the UK for a continuous period of more than two years.
Individuals must usually have held settled status for at least a year before being able to apply for citizenship. Note that the residency requirements for settlement and citizenship are different.
Must immigration permission be cancelled at the end of employment in your jurisdiction?
If an individual is sponsored under Tier 2 or the former work permit scheme and the individual resigns, is dismissed or made redundant or their assignment ends earlier than anticipated, the sponsoring organisation must notify the Home Office that the individual is no longer being sponsored. If an individual has more than 60 days remaining on their current visa, the Home Office will usually curtail their permission to 60 days and if the individual wishes to remain in the UK they will be required to make a new visa application before that date to extend their stay. However, if the assignment ends in line with their visa, no notification is required.
When and how the notification must be made will be dependent upon the type of sponsorship the individual holds.
Are there any specific restrictions on a holder of employment permission?
Under Tier 2, an individual is only permitted to work in the UK in the job specified on the certificate of sponsorship (work permit) for the sponsoring organisation. However, they may also:
• undertake voluntary work in any sector;
• undertake a course of study provided it does not interfere with the job they have been sponsored to do in the UK; or
• take an extra job in the same sector at the same level as that specified on the certificate of sponsorship provided they do not work more than 20 hours per week in their secondary employment.
If an individual with Tier 2 permission wishes to significantly change his or her role or change employer in the UK, he or she must submit a new application and obtain new immigration permission before commencing in the new role or with the new employer.
Other restrictions include a prohibition on migrants claiming public funds while in the UK and a requirement that certain nationals register their status with the police if they are granted UK immigration permission for more than six months.
Dependants
Who qualifies as a dependant?
The following people qualify as dependants:
• partners including spouses, civil partners, unmarried partners or same-sex partners; and
• children, including adoptive children, under the age of 18 years. It is important to note that children who are already in the UK as dependants may extend their immigration permission beyond 18 years of age in line with the main applicant provided they remain financially and emotionally dependent on the main applicant and meet certain requirements.
Are dependants automatically allowed to work or attend school?
Under the Tier 2 category, dependants are permitted to work. However, they are not allowed to work as a doctor or dentist in training.
It is compulsory for children between the ages of five and 16 to be in full-time education, regardless of their immigration status. Dependants can also attend further education colleges, sixth-form colleges and universities as long as they have the required qualifications (if necessary) and fees are paid (where applicable).
What social benefits are dependants entitled to?
Dependants must show that they are able to maintain and accommodate themselves for the duration of their stay in the UK without relying upon public funds.
As part of the application process, migrants pay the Immigration Health Surcharge and as such will be able to receive healthcare from the National Health Service (NHS).. Immigration applications can be refused however if an individual has previously incurred NHS charges that remain unpaid (if treatment was received without a suitable visa status).
Other matters
Are prior criminal convictions a barrier to obtaining immigration permission?
Applications for entry clearance or leave to remain in the UK can be refused if the applicant has been convicted of a criminal offence, particularly where individuals have been sentenced to a period of imprisonment of 12 months or more.
For EEA citizens seeking entry to the UK, under current legislation, previous criminal convictions alone cannot constitute sufficient grounds for refusal and exclusion can only be based on the grounds of public policy, public security or public health.
What are the penalties for companies and individuals for non-compliance with immigration law? How are these applied in practice?
If an organisation is discovered to be employing workers illegally they can be fined up to £20,000 per illegal worker and face reputational damage from any resulting publicity. Any employer who was aware of the illegal working could also be imprisoned for up to five years and fines can be unlimited.
Organisations could also have their sponsor licence rating downgraded or lose their licence in its entirety, which affects an organisation’s ability to employ new non-EEA migrants and to continue to employ any existing sponsored employees.
Individuals who are found to be non-compliant with UK immigration law may be refused entry or asked to leave the UK and, in the most serious of cases, an individual can be banned from entering the UK.
Are there any minimum language requirements for migrants?
Under the Tier 2 category, an English language requirement must be met by all migrants applying under Tier 2 (General).
At present, applicants are able to show that they meet the English language requirement in one of three ways:
• being a national of a country recognised as being majority English-speaking;
• obtaining a specific score in an approved English language test; or
• obtaining a qualification that has been taught in English and is recognised by the UK national academic recognition information centre as being equivalent to a UK bachelor’s degree or above.
Is medical screening required to obtain immigration permission?
Non-EEA migrants applying for a UK visa for more than six months may be referred for a medical examination. In addition, individuals who state health or medical treatment as a reason for their visit to the UK, or those who appear not to be in good mental or physical health, can also be referred. The cost for the health screening varies depending on the country of origin and it is the migrant’s responsibility to meet this cost and failure to attend could result in the refusal of the visa application.
Individuals applying from particular countries are required to obtain a certificate to prove they are free from infectious pulmonary tuberculosis if they are applying for a visa that is more than six months in duration. They should consult the UK diplomatic post before travelling. These individuals must carry their medical certificate in their hand luggage to avoid being delayed on arrival to the UK. It is also possible for individuals to be chosen for medical screening on entry to the UK.
There is now an immigration health surcharge that must be paid by all non-EEA migrants who are applying to come to or remain in the UK for six months or more. There are some exempt people and the amount payable depends on the duration of the visa being applied for.
Is there a specific procedure for employees on secondment to a client site in your jurisdiction?
Under the Tier 2 category, a non-EEA employee may be seconded to a third-party client site by the UK sponsor. There must be a time-bound contract in place between the companies for the provision of goods or services. The sponsoring company must have full responsibility and control of the employee’s duties, functions and output while he or she is working on the client company’s site and it must continue to employ and pay the secondee. The employee must be seconded as an extra member of staff to assist with the delivery of the contract.
A non-EEA national may also be seconded to the UK under the business visitor rules and similar considerations will apply. In addition, the UK client company must have no direct corporate relationship with the overseas company.
UPDATE & TRENDS
Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?
As part of Brexit negotiations, the continued right of EEA (and Swiss) nationals to live, work and travel freely in the UK, after 29 March 2019, remains subject to agreement as part of the exit deal. The Home Office have issued a statement of intent (in June 2018) that seeks to facilitate those individuals, and their associated family members, arriving in the UK before the end of the proposed transition period (31 December 2020) to be able to continue to reside in the UK and to ultimately secure Settled Status. No details have, at this time (July 2018), been given as to the proposed position for EEA nationals post-December 2020. All such agreements relating to freedom of movement remain at proposal stage and are subject to agreement and ratification by the UK and all other 27 EU member states.
