The Immigration Rules for the Representative of an Overseas Business also known as “Sole Rep” are going to be changed for new applicants as of 4 June 2020.
Following the closure of the Tier 1 (Entrepreneur) route, presumably the UK government has seen an increase in the number of Sole Rep applications and decided to clamp down on the route.
The new changes provide some clarifications such as ensuring that the overseas parent company continues to have their headquarters and main place of business abroad outside the United Kingdom and not totally move their activities to the UK and to ensure that the parent company intends to keep their main centre of business abroad.
In addition, the applicant must be a senior employee of the overseas parent company and cannot engage in any side or own businesses in the UK nor represent any other business.
The real bad news is that the new changes introduced a very new and absolutely subjective test by introducing to the Immigration Rules a “genuineness test”. This addition to the Immigration Rules will certainly give free hand to the decision-makers in refusing applicants merely on the basis of their own subjective evaluation regardless of submitting all the correct documentary evidence.
The change to the Immigration Rules is not welcome and will lead to the strong potential of seeing negative decisions reading like '...you are being refused as you do not satisfy the Immigration Rules as we are not satisfied that you are a genuine applicant'.
The changes also elaborate that the UK arm of the business, either a subsidiary or a branch, should not be established merely for the purpose of facilitating the residence and entry to the UK.
Further, the changes now clearly stipulate that applicants must have "relevant" experience, skills and knowledge of the business. This will certainly allow decision-makers to freely interpret who is actually "relevant" enough instead of applying an objective assessment.
More fundamentally, the amended Immigration Rules now limit and will prevent those who have "majority stake" in the overseas parent company to apply under the route.
The new Rules now state that applicants should not have a majority stake, own or control the overseas business, regardless of the type of the control, either through shareholding, partnership or any other form. Currently the Rules simply state that applicants can not be majority shareholders which provided a degree of flexibility to business looking to setup a representation arm in the UK.
More importantly for families, it will be no longer viable for the spouse partner of someone with a majority stake in the overseas business to apply under the route, and have their partner (with a majority stake) come to the UK as their dependant.
The new Rules will come into effect on 4 June 2020, however applications submitted before then will be decided in accordance with the current slightly more generous Immigration Rules.
While the changes come with a very short notice and during a difficult quarantine time and where all the Visa Centres and Government Bodies are closed due to the corona virus, applications can still be made online under the current rules and biometrics be enrolled later when the centres have opened.
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Article by Atef Elmarakby - Immigration Law Specialist Consultant at GOOD ADVICE UK