Command Paper 7701, presented to Parliament by the Secretary of State for the Home Department on 9th September 2009, makes important changes to the sole representative immigration category, which has until now remained unaltered despite the wholesale changes to other business immigration routes which have characterised the implementation of the UK government's Points Based System.
Under the changes, which will take effect on 1 October 2009, the existing sole representatives' Immigration Rules 144 to 151 are deleted and are comprehensively redrafted. The purpose of the Rule remains to enable a representative of a firm, the headquarters of which are outside the UK, to establish and to operate a registered branch or wholly owned subsidiary of that firm in the UK.
The new category also now encompasses journalists (representatives of overseas newspapers, news agencies or broadcasting organisations) who used to be entitled to apply for entry clearance under Rules 136 to 140 before they were deleted in November of 2008. The Statement explains that it had been expected that journalists would apply for visas under Tier 2 of the Points Based System but that this was of course impossible due to the fact that there was no one in the UK who could act as a Tier 2 Sponsor.
To begin with the category is itself renamed. Sole representative becomes representative of an overseas business. The word sole is dropped because obviously there is going to be more than one journalist from the same newspaper or other media organisation seeking entry in this capacity.
For the first time an English language skill requirement is introduced. The test can be met in a variety of ways. These are being a national of one of the (English-speaking) countries listed at Appendix B paragraph 2 of the Immigration Rules, having a degree at UK Bachelor's or Master's level from a college in one of those countries, or possessing an English language test certificate issued by an approved language test provider to a level specified by the Secretary of State for the Home Department. But that standard will only be as follows:
"...the person is competent in the English language to a basic user standard, including the ability to understand and use familiar everyday expressions, to introduce himself and others and to ask and answer questions about basic personal details".
The second new requirement is that the branch of the overseas business which is to be established in the UK must be going to be engaged in the same business activity as the overseas business.
Apart from these two requirements the new rules are much the same as before - the applicant must be going to be employed full time, must not be a majority shareholder of the overseas company and must not intend to take employment otherwise than in the terms of the Rule.
The Statement of Changes also exempts applicants in the Tier 2 (intra-company) Migrant category from the Tier 2 Rules which require applicants to own less than 10% of the limited company which is sponsoring them, if this is the case.
The rationale is as follows:
Under the Tier 2 (General) category the restriction ensures that a genuine attempt has been made to test the resident labour market. However, it serves no useful purpose under the Tier 2 (Intra-Company Transfer) category and is a barrier to board members of multinational companies applying to work in the UK.
Under the changes, people will be also be able to switch from leave to remain as a representative of an overseas business to leave to remain as a Tier 2 (Migrant). At present sole representatives are not allowed to switch into this category - but those with leave to remain as representatives of overseas newspapers, news agencies or broadcasting organisations can do so.
The changes also complete the implementation of Tier 4 of the Points Based System by permitting Sponsors of Tier 4 Migrants to issue a Confirmation of Acceptance for Studies - to replace (eventually) the visa letter currently required by the Rules.
Gherson has extensive experience in assisting applicants for leave to enter and remain in the sole representative category. The firm's solicitors are fully equipped to advise and represent any applicant or employer seeking to apply in this or any other business immigration category, as well as in the range of alternatives contained in the Points Based System.