Regulatory framework and trends
Trends and developments Have there been any notable recent trends or developments regarding business-related immigration in your jurisdiction, including any government policy initiatives?
The government has introduced a number of changes in the Tier 2 visa category, specifically aimed at the temporary worker route. The immigration skills charge was recently introduced for applications submitted under Tier 2 and sponsors are liable to pay a levy of £1,000 per annum.
Domestic law What legislation and regulations govern immigration in your jurisdiction?
Primary legislation consists of the Immigration Act 1971, which provides the legislative foundation for immigration powers.
The Immigration Rules list the requirements for each visa category.
EU law also plays an active role, as well as the requirement for the law to be compatible with the European Convention on Human Rights.
International agreements Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?
As part of the United Kingdom’s membership of the European Union, nationals are granted freedom of movement. EU nationals have the right to live and work in the United Kingdom on an unrestricted basis. As a result of Brexit implications, the government has proposed that this right be curtailed. Further announcements are due.
Regulatory authorities Which government authorities regulate immigration and what is the extent of their enforcement powers?
The Home Office is the relevant government department that oversees the immigration system. Responsibilities are divided into three separate departments:
- Border Force;
- Immigration Enforcement; and
- UK Visas and Immigration.
Enforcement powers consist of detention and removal of migrants from the United Kingdom if they are found to be in breach of their conditions of stay. Recent changes have also introduced new powers in respect of migrants requiring valid leave in the United Kingdom before:
- opening bank accounts;
- entering into tenancy agreements; and
- applying for a UK driving licence.
Can the decisions of these authorities be appealed?
Refusal of applications made under the points-based system attracts the right of an administrative review. The review is carried out by a senior caseworker who reviews the reasons for refusal. Only limited evidence can be supplied as per the review process.
Recent case law Has there been any notable recent case law regarding immigration?
There has been no recent notable case law regarding commercial immigration law.
Visa requirements In what circumstances is a visa required for business visitors?
All nationals of the countries mentioned in Appendix 2 of the Immigration Rules are classed as visa nationals for immigration purposes. They must apply for a visa in advance of their arrival to the United Kingdom. Visas must be applied for overseas at a designated British visa issuing post, such as a British embassy. Non-visa nationals are not required to apply for a visa in advance if they seek entry as a visitor. They are permitted to seek entry on arrival at the UK border.
Restrictions What restrictions are imposed on business visitors in terms of the work that they may undertake and their period of stay in your jurisdiction?
Appendix 5 of Immigration Rules
Visa nationals and non-visa nationals are permitted to stay in the United Kingdom for up to six months. Visitors undertaking business activities are permitted to:
- attend meetings, conferences, seminars and interviews;
- give a one-off or short series of talks and speeches, provided these are not organised as commercial events and will not make a profit for the organiser;
- negotiate and sign deals and contracts;
- attend trade fairs, for promotional work only, provided that the visitor is not directly selling;
- carry out site visits and inspections;
- gather information for their employment overseas; and
- be briefed on the requirements of a UK-based customer, provided that any work for the customer is done outside the United Kingdom.
However, visitors are not permitted to work in the United Kingdom or receive any payment. The exception to this general rule is if the migrant is engaged in a permitted paid engagement. The permitted engagements are listed in Appendix 5 of the Immigration Rules. The migrant’s proposed engagements must also:
- be arranged before the applicant travels to the United Kingdom;
- be declared as part of the application for a visitor visa or leave to enter;
- be evidenced by a formal invitation, as required by Appendix 4; and
- relate to the applicant’s area of expertise and occupation overseas.
Application and entry How are business visitor visas obtained and what is the typical turnaround time?
Visitor visas for visa nationals are applied for overseas at a designated British overseas post, which may include a British embassy. Migrants are required to complete an online form on the Visa4UK website. Standard processing times vary in each country; however, the average processing time takes up to 15 working days. Migrants must attend a biometric appointment where they are required to provide fingerprints and undergo an iris scan.
If granted, visas will be issued by way of a vignette sticker in the migrant’s current passport.
Non-visa nationals may seek entry on arrival at the UK border.
Are any visa waiver or fast-track entry programmes available?
Migrants are eligible to join the Registered Traveller Scheme, which permits faster entry at the UK border using ePassport gates or the UK/EU entry lane. Initial registration costs £70, and a £50 yearly renewal fee applies. Only a limited number of nationalities are permitted to use the scheme.
Short-term training What rules and procedures apply for visitors seeking to undertake short-term training in your jurisdiction?
A visitor who works for an overseas company may receive training from the UK-based company if it is required for the visitor’s overseas employment and is not available in his or her home country. Short training sessions are also permitted by trainers who are contracted to deliver global training.
Transit In what circumstances is a transit visa required to pass through your jurisdiction? How is it obtained?
Visa nationals must obtain a transit visa in advance of their travel to the United Kingdom. They are required to apply overseas at a designated post, such as a British embassy. The application will be made on the Visa4Uk website.
An exemption applies and visa nationals meeting additional criteria may be permitted to seek leave to enter at the UK border. The visitor must:
- have arrived by air and be departing by air;
- be genuinely in transit to another country, meaning that the purpose of his or her visit is to transit through the United Kingdom and that the applicant is taking a reasonable transit route;
- not access public funds or medical treatment, work or study in the United Kingdom;
- genuinely intend to leave the United Kingdom before 11:59pm on the day following arrival;
- have a confirmed booking on a flight departing the United Kingdom before 11:59pm on the day following arrival; and
- be assured entry to his or her country of destination and any other countries that he or she is transiting through.
The visitor must also:
- be travelling to or from (or on part of a reasonable journey to or from) Australia, Canada, New Zealand or the United States and have a valid visa for that country;
- be travelling from (or on part of a reasonable journey from) Australia, Canada, New Zealand or the United States less than six months since his or her last entry into that country with a valid entry visa;
- hold a valid permanent residence permit issued by:
- Canada (issued after June 28 2002); or
- New Zealand;
- hold a valid US I-551 permanent resident card, issued on or after April 21 1998;
- hold a valid US I-551 temporary immigrant visa (a wet-ink stamp version will not be accepted);
- hold an expired US I-551 permanent resident card issued on or after April 21 1998, provided that it is accompanied by a valid I-797 letter authorising an extension of the period of permanent residency;
- hold a valid standalone US immigration Form 155A/155B attached to a sealed brown envelope;
- hold a valid common format residence permit issued by a European Economic Area (EEA) state (pursuant to EU Regulation 1030/2002) or Switzerland;
- hold a valid uniform format Category D visa for entry to a state in the EEA or Switzerland;
- be travelling on to the Republic of Ireland and have a valid Irish biometric visa; or
- be travelling from the Republic of Ireland less than three months since the applicant was last given permission to land or be in the republic by the Irish authorities with a valid Irish biometric visa.
Non-visa nationals are permitted to seek leave to enter for transit purposes at the UK border.
New hires What sponsored visas or work permits are available to employers seeking to hire foreign nationals in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?
The sponsored visa route is the Tier 2 visa category. The route is divided into two categories: general and intra-company transfer.
Tier 2 (general) allows employers to move staff for permanent roles in the United Kingdom. The following criteria must be met:
- a six-year maximum stay;
- after five years’ continuous residence, a sponsored employee may, subject to meeting additional criteria, apply for permanent residence in the United Kingdom (known as ‘indefinite leave to remain’);
- a minimum salary of £30,000 per annum is required;
- mandatory advertising of the role is required if the job attracts a salary of less than £159,600 (known as the ‘resident labour market test’) – advertisements for the job must be placed in two different media for a minimum of 28 calendar days; and
- applicants must meet the English language requirement in one of the following ways:
- be a national of a majority-English-speaking country;
- hold a degree that was taught or researched in English and is equivalent to a UK bachelor’s degree or above;
- have passed an English language test at the appropriate level; or
- have met the English language requirements when given a previous grant of leave.
The Tier 2 (intra-company transfer) route is an alternative route and enables employees to transfer existing employees to the United Kingdom on a temporary basis. This category does not lead to permanent residence. Two sub-categories exist:
- Tier 2 (intra-company transfer) long-term route has the following criteria:
- a five-year maximum stay (or up to nine years if the migrant earns £120,000 or more);
- a minimum salary of £41,500 per annum; and
- the migrant must have worked for the overseas company for a minimum of 12 months (an exemption applies if the salary is £73,900 or more per annum).
- Tier 2 (intra-company transfer) graduate trainee route has the following criteria:
- migrants from the overseas organisation must be part of a structured graduate training programme;
- a 12-month maximum stay;
- the migrant must have worked for the overseas company for a minimum of three months; and
- a minimum salary of £23,000 per annum.
Intra-company transfers What sponsored visas or work permits are available to multinational employers seeking to transfer foreign employees to your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?
Do any special rules govern secondments?
The Tier 2 (intra-company transfer) route provides sponsored employers a means of transferring overseas workers to the United Kingdom on a temporary basis. This can include working on new projects or providing extra personal capacity in the UK branch of the company.
Sponsor requirements and considerations What are the eligibility and procedural requirements for employers to sponsor foreign employees?
An employer must obtain a sponsor licence before sponsoring migrant workers. The employer is usually required to submit a number of mandatory documents to the Home Office and explain the reason for applying for the licence. Applications are made via an online portal and demand a fee.
What ongoing reporting and record-keeping requirements apply to sponsors?
Licence sponsors must meet and maintain compliance in a number of critical areas:
- Sponsor licence details must be kept up to date (including named personnel) on the licence. Any changes must be reported to the Home Office via the online sponsor management portal.
- Sponsors must ensure that migrant duties and salary comply with the information contained in the certificate of sponsorship.
- The sponsor licence HR systems must ensure compliance in the following areas:
- monitoring immigration status and preventing illegal employment;
- maintaining migrant contact details;
- record keeping and recruitment practice;
- migrant tracking and monitoring; and
- other general and specific sponsor reporting duties.
In what circumstances (if any) must the employer submit to resident labour market testing before hiring or transferring foreign employees? Do any exemptions apply?
Migrants sponsored under the Tier 2 (general) route must conduct the resident labour market test. The test must be undertaken before any migrant worker can be sponsored.
The following exemptions apply:
- a job offer with a salary of £159,600 or above (classed as the ‘high earner threshold’);
- a job which is featured in the shortage occupation list as defined by the Home Office;
- an extension application where the migrant worker is working for the same sponsor; and
- switching from a Tier 4 student visa and having been awarded a recognised bachelor’s or master’s degree.
Are there any annual quota limits or restrictions on certain positions that can be filled by foreign nationals?
The Home Office publishes a list of standard occupational codes relating to the job roles for which a migrant worker may be sponsored. The roles must also meet the prescribed salary.
The number of Tier 2 (general) restricted certificates of sponsorship which can be issued annually is 20,700. This quota allocation is spread evenly per calendar month.
Are there any immigration exemptions or other special schemes for shortage occupations in your jurisdiction?
The Home Office lists shortage occupations based on existing shortages in the skilled workforce. Migrants sponsored under a shortage occupation are exempt from the resident labour market test. The list also includes a number of roles which would not normally attract sponsorship (eg, chefs).
How long does it typically take to obtain a sponsored visa? Is expedited visa processing available?
The Home Office has a standard processing time of up to eight weeks to process new sponsor licence applications. At present, there is no expedited service.
What rules govern the hiring of foreign third-party contractors?
Migrants sponsored by Company A may proceed to work as a contractor for Company B on its premises. However, the migrant’s sponsor must maintain full control of migrant duties and responsibilities.
What are the penalties for sponsor non-compliance with the relevant immigration laws and regulations?
Non-compliance of a licensed sponsor may result in:
- the downgrading of a sponsor licence to a B rating – this prevents the licensed sponsor from sponsoring any new migrant workers and the sponsor would also be subject to a three-month action plan by the Home Office;
- licence suspension; and
- revocation of the sponsor licence – any migrants currently sponsored will have their current immigration leave (permission) curtailed.
Are there any other special considerations for sponsors in your jurisdiction?
Special considerations are covered by sponsors – see above.
General employee requirements Must sponsored employees meet any language requirements?
Migrants sponsored under the Tier 2 (general) route must attain a B1 standard in the English language requirement. This can be met in various ways. Migrants sponsored under the Tier 2 (intra-company transfer) route are not required to meet the language requirement.
Are sponsored employees subject to any medical checks?
Migrants who reside in certain countries and who are seeking entry for more than six months must undergo tuberculosis testing at an approved overseas Home Office clinic.
Must sponsored employees meet any medical or other insurance requirements?
Subject to meeting the tuberculosis requirement, sponsored migrants are not required to meet any other medical or insurance requirements. UK Visas and Immigration has the authority to refer any passenger who, in its opinion, is in poor physical or mental health to the port health authority for medical assessment.
Are sponsored employees subject to any security or background checks?
Sponsored migrants are subject to Home Office checks at the point of applying for a visa. This can include checks on the criminal records database and the immigration database.
Are sponsored employees subject to any restrictions on studying or working second or volunteer jobs?
Sponsored migrants are permitted to undertake supplementary employment in addition to the job for which they are being sponsored. This supplementary employment must be for no more than 20 hours per week and must be related to the profession for which they are being sponsored.
Secondary employment is permitted only with a licensed sponsor. A new application will need to be submitted in the United Kingdom after the applicant has been assigned a certificate of sponsorship and the migrant has commenced work with the first sponsor.
Voluntary work is permitted as long as no payment is received.
Are there any rules or standards governing the equivalence of sponsored employees’ foreign qualifications?
The National Recognition Information Centre (NARIC) is the agency responsible for confirming whether academic qualifications meet the English language requirements and are the equivalent of a UK bachelor degree. This is necessary for applications submitted under the Tier 2 (general) category. Migrants who have obtained their degree from a non-English-speaking country must submit their degree to NARIC for verification.
What are the penalties for employee non-compliance with the relevant immigration laws and regulations?
A sponsored migrant may have his or her sponsorship withdrawn by the employer should certain criteria (eg, attendance) not be met. In addition, employers holding a sponsor licence have a duty to inform the Home Office of any relevant matters such as unauthorised absence.
Sponsored migrants may face fines and detention to facilitate removal from the United Kingdom.
Highly skilled individuals What unsponsored immigration routes are available for highly skilled foreign nationals to seek employment in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?
The Tier 1 route provides an alternative route for highly skilled migrants to live and work in the United Kingdom. Migrants are not required to be sponsored by a licensed sponsor; they can be entrepreneurs, investors or of exceptional talent.
Entrepreneurs What unsponsored immigration routes are available for entrepreneurs seeking to establish a business in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?
The entrepreneur route allows migrants to set up or run a business in the United Kingdom. To apply, the migrant must have:
- access to £50,000 in investment funds from an approved source; or
- access to £200,000 in investment funds, which must be the migrant’s own money or made available to him or her via a third party.
Any application will be subject to a genuine entrepreneur test. The Home Office must be satisfied that the migrant genuinely intends to take over at least one business in the United Kingdom. The Home Office will also actively consider the migrant’s background, including the source of any funds, mandatory business plan and professional background.
The maximum stay permitted is five years. Permanent residence may be applied for after five years’ continuous residence.
Graduate entrepreneur This visa category is open to recent UK graduates who have a business idea which they wish to set up. Applicants must receive an official endorsement before applying. The endorsement can be from a UK higher education institute or from the Department for International Trade. There is a limit of 2,000 places per annum for this category.
Investors What unsponsored immigration routes are available for foreign investors seeking to invest in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?
The investor route permits migrants to invest a minimum of £2 million in UK government bonds, share capital or loan capital.
Migrants are eligible for permanent residence under this visa category after five years. An accelerated settlement route applies which allows a reduced qualifying period for settlement purposes. Investment of at least £5 million reduces this to three years, or a £10 million investment reduces this to two years.
Ancestry Are any immigration routes open to foreign nationals based on ancestry or descent?
Yes. The UK ancestry visa route provides an alternative route to work in the United Kingdom. The migrant must be a Commonwealth citizen and provide evidence that one of his or her grandparents was born in the United Kingdom.
Other routes Are there any other unsponsored immigration routes?
There are other visa routes which provide entry to the United Kingdom.
The representative of the overseas business route permits entry to overseas migrants who work for an overseas entity. It must be the intention of that entity to establish a commercial operating presence in the United Kingdom. The migrant must:
- hold a senior position with the entity;
- be employed and paid outside the United Kingdom; and
- have extensive expertise within the sector.
Turkish nationals who intend to establish a new business in the United Kingdom may seek entry under the Turkish ECAA Visa route. Applicants may also join an existing business operating in the United Kingdom if they will be actively concerned in the running of the business.
Extensions, permanent residence and citizenship
Extensions and status changes Can short-term visa or work permit holders switch to long-term visas? If so, what conditions and procedures apply?
Visitors to the United Kingdom are not permitted to switch to any visa category while in the United Kingdom. Migrants holding Tier 2 (intra-company transfer) visas are prohibited from switching to the Tier 2 (general) category.
Under what conditions can long-term visas be extended?
Permanent residence Can long-term visa holders apply for permanent residence? If so, what conditions and procedures apply?
Subject to meeting additional criteria, a number of visa categories permit migrants and any dependants to apply for indefinite leave to remain after five years’ continuous residence in the United Kingdom.
If granted, the migrant and any dependants have the right to live and work in the United Kingdom on an unrestricted basis. The indefinite leave to remain holder must not be absent from the United Kingdom for more than two years, as this will lead to the withdrawal of the indefinite leave to remain.
Citizenship Can long-term visa holders or permanent residents apply for citizenship? If so, what conditions and procedures apply?
Migrants must have lived in the United Kingdom for at least five years before the date of their application. Migrants must have been permanent residents for at least 12 months before they are eligible to apply for naturalisation.
Migrants must also meet the absence criteria, have knowledge of English and satisfy the ‘life in the UK’ test. If the application is successful, migrants must attend a citizenship ceremony at their local town hall.
Eligibility Who qualifies as a dependant for immigration purposes?
Dependants are classified as the migrant’s spouse, civil partner and unmarried or same-sex partners.
Dependants who are unmarried must demonstrate that they have lived with the migrant for at least two years. Evidence to support this may include the submission of utility bills and bank statements.
Conditions and restrictions What conditions and restrictions apply to bringing dependants to your jurisdiction (including with respect to access to labour markets, education and public benefits)?
Dependants have the right to work and study on an unrestricted basis in the United Kingdom. This is subject to the migrant residing in the United Kingdom and abiding by the conditions of his or her visa. Any revocation of the migrant’s visa will also affect the dependant’s visa.