IMMIGRATION ROUTES FOR

SMALL & MEDIUM BUSINESSES

IMMIGRATION ROUTES FOR

SMALL & MEDIUM BUSINESSES

Whether you wish to establish a new business in the UK, recruit a talented foreign worker or check if your business is reviewing its employees’ rights to work correctly, our UK immigration barristers are well versed in the immigration rules for small and

medium businesses.

Our specialist immigration barristers work closely with small and medium sized businesses to ensure that their immigration requirements are met. Providing a completely outsourced immigration service, our immigration barristers design tailored immigration solutions that

enable SMEs to meet their business objectives in full compliance with UK immigration law.

About usRichmond Chambers LLP is an award-winning, innovative partnership of specialist immigration barristers. Winner of the ‘Best Immigration Set of the Year - UK’ award at the Global Mobility and Immigration Awards 2014, winner of the ‘Best Emerging Firm’ award at the MPF Awards for Management Excellence 2014 and winner of the ‘ABS of the Year’ award at the Modern Law Awards 2014, our barrister-led law firm has established itself as a leading provider of tailored immigration law solutions to businesses within the UK and overseas.

Our team of specialist immigration barristers has experience in assisting all types of businesses, from small start-ups to established medium-sized enterprises. We are experts in business immigration law and will guide you through the complex Home Office rules and policies, identifying immigration strategies that complement your business plan. Whether you wish to apply for a Sponsor Licence or submit a work visa application on behalf of a prospective employee, our immigration barristers will simplify the process for you and help you to protect your business from any immigration compliance issues.

For advice and assistance with bringing employees to the UK, employing a non EEA worker or obtaining a Sponsor Licence, please contact our business immigration barristers and lawyers in London on 020 3617 9173 or by email info@richmondchambers.com.

General visa informationIn the UK, employers have to balance their business needs with their duty to prevent illegal working. If you wish to employ a worker from outside the European Economic Area, the employee must obtain, or already have, permission to work. You will be required to check that all your employees have the required immigration permission to work for you in the UK.

The following categories of people have the right to work in the UK:

J British Citizens (this is the only form of British nationality where the holder automatically has the right to work. British Nationals, British Nationals (Overseas), British Overseas Territories Citizens, British Overseas Citizens, British Subjects and British Protected Persons do not normally have the automatic right to work in the UK);

J EEA citizens and citizens of Switzerland;

J Those with the right of abode in the UK;

J Those with no time limit on their stay in the UK; and

J Those with a visa or permission to remain in the UK which permits work (this may be subject to conditions, such as a maximum number of hours to be worked in a week, which must be complied with).

Students may have permission to work, but if they do, this will be limited during term time. Some individuals with applications pending with the Home Office may also have permission to work in the UK. In this case you will need to obtain a Positive Verification Notice from UKVI’s Employer Checking Service.

If your employee does not already have permission to work in the UK, there are several visa options available to your business:

J Visit (Standard) – Business visa;

J Representative of an Overseas Business visa;

J Tier 2 General visa;

J Tier 2 Intra-company Transfer (ICT) visa;

J Tier 5 Temporary Worker visa;

J Tier 5 Youth Mobility Scheme (YMS) visa.

Visit (Standard) – Business VisaThe Visit (Standard) – Business visa is designed for non-EEA nationals who wish to come to the UK for a short period for the purpose of undertaking business activities.

The Visit (Standard) – Business visa will allow individuals to undertake a wide range of business activities in the UK. Individuals in this category are not permitted to undertake paid or unpaid work for a UK company. If you wish for the individual to undertake work whilst they are in the UK, you should consider applying for one of the other work visas below.

The Visit (Standard) – Business visa is normally granted for 6 months.

The individual will be permitted to undertake a wide range of business activities in the UK, including but not limited to:

J Attend or speak at meetings, conferences, seminars and interviews;

J Negotiate and sign deals and contracts;

J Attend trade fairs for promotional work;

J Carry out site visits and inspections;

J Gather information for an overseas employer;

J An employee of an overseas company can advise, consult, troubleshoot and share knowledge with UK employees of the same corporate group.

Representative of an Overseas Business VisaThe Representative of an Overseas Business visa is designed for senior employees of overseas businesses that are seeking to establish a commercial presence in the UK.

The person you are seeking to send to the UK must be a senior employee who has full authority to take operational decisions on behalf of the business. They must not intend to take any other employment whilst in the UK and must hold less than 50% of the shares in the overseas business. They will also need to show that they can maintain and accommodate themselves adequately in the UK and that they can speak English to the required standard. UK Visas and Immigration will expect to see that the person has held a senior role previously and that, if required as part of their existing role, they have a good track record of establishing companies.

UK Visas and Immigration will assess whether the overseas parent company is a genuine commercial enterprise, taking into consideration its turnover (in order to show that the parent company is actively trading), its registered office (which must be outside the UK) and the type of business (which must be the same as the intended business in the UK). The foreign business must be trading at the time the application is made and the intention must be to keep the principal business outside of the UK, but to establish a branch or subsidiary in the UK.

Representatives of Overseas Business visa holders must work full time for the UK branch or subsidiary and cannot undertake any other work.

Employees in the UK under this category may settle in the UK after 5 years. They may bring their dependent spouse and children to the UK.

Tier 2 General VisaThe Tier 2 General visa is one of two main visas available to employers who wish to employ skilled workers in the UK (the other being the Tier 2 Intra-company Transfer visa). Your company must already be operating in the UK and hold a Tier 2 Sponsor Licence.

The Tier 2 General visa is for employees who are needed in the UK for a role where the position cannot be filled by a settled or EEA worker. The role the worker will perform must generally appear on the list of occupations skilled to NQF level 6 or above as stated in the Codes of Practice. You will also usually need to show that you have advertised the role, referred to as the Resident Labour Market Test. However, jobs in shortage occupations are exempt and do not need to be advertised.

You will need to satisfy UK Visas and Immigration that the job offer is a genuine vacancy and that the employee is appropriately qualified or registered to do the job.

You will need to ensure that the employee is paid a minimum of £20,800 or the minimum for the specific role according to the Codes of Practice. The employee must demonstrate that they are competent in the English language. The employee must also show that they have sufficient funds to support themselves and their dependents. Alternatively, you may certify that you will maintain the employee and their family.

A migrant who is in the UK under Tier 1, 2, 4 or 5 of the points-based system may be able to switch into the Tier 2 General category. If the migrant is a Tier 4 General Student or a Tier 1 Post Study Work migrant, they may be able to switch into Tier 2 General without the need for a Resident Labour Market Test.

Tier 2 General migrants may bring their dependent partners and children with them to the UK.

It will normally be possible to extend the employee’s visa if they are still working in the same role for you and you will not normally need to advertise the role again. If eligible, a Tier 2 General migrant may settle in the UK after 5 years. If the migrant does not settle in the UK, the maximum duration of stay as a Tier 2 General skilled worker is 6 years. Tier 2 General migrants must leave the UK on the expiry of their leave and wait 12 months (the ‘cooling off period’) before applying to return in a Tier 2 category, unless they are paid more than £155,300 per annum or were previously sponsored for a period of 3 months or less.

Tier 2 Intra-Company Transfer (ICT) VisaThe Tier 2 Intra-Company Transfer (ICT) visa enables multinational employers to transfer their existing employees to their UK branch for training purposes or to fill a specific vacancy. Your company must already be operating in the UK and must hold a Tier 2 Sponsor Licence. The overseas company that the employee is transferring from must be listed as a linked entity on your Tier 2 Sponsor Licence.

There are four types of Intra-company Transfer visa: Short Term Staff, Long Term Staff, Graduate Trainee and Skills Transfer.

Short Term Staff: This visa is for employees who are needed in the UK for 12 months or less and where the position cannot be filled by a settled or EEA worker. The employee must have worked for an overseas branch of the company for at least 12 months. The maximum duration of stay on this visa is 12 months. The employee must be paid a minimum of £24,800 or the minimum for the specific role according to the Codes of Practice.

Long Term Staff: This visa is for employees who are needed in the UK for a period of 12 months or more and where the position cannot be filled by a settled or EEA worker. The employee must have worked for an overseas branch of the company for at least 12 months. The employee must be paid at least £41,500 or the minimum for the role according to the Codes of Practice. The maximum duration of stay on this visa is 5 years, or 9 years if the employee earns over £155,300 per annum.

Graduate Trainee: This visa is for employees who have recently graduated and who will participate in a graduate training programme for a specialist role. The employee should be a recent graduate and have had at least 3 months’ experience with your overseas branch. The maximum duration of stay on this visa is 12 months. You will only be able to sponsor 5 employees per year under this route.

Skills Transfer: This visa is designed for transferring new and graduate employees to the UK base of an overseas company for the purpose of gaining skills and knowledge or to train others in the UK. There is no minimum amount of time for which the visa holder must have been with your overseas branch. The maximum duration of stay on a Skills Transfer visa is 6 months.

All ICT categories: The role the worker will perform must normally appear on the list of occupations skilled to NQF level 6 or above as stated in the Codes of Practice. Tier 2 ICT migrants may bring their dependent partners and children with them to the UK.

It will normally be possible to extend the employee’s visa if they are still working in the same role for you, until they reach the maximum duration for their visa category listed above. Tier 2 ICT migrants must leave the UK on the expiry of their leave and wait 12 months (the ‘cooling off period’) before applying to return in a Tier 2 category, unless they are paid more than £155,300 per annum or were previously sponsored for a period of 3 months or less. The only other exceptions to the cooling off period are for Short Term Staff, Skills Transfer or Graduate Trainee migrants who may apply to re-enter the UK as Tier 2 (ICT: Long Term Staff) migrants without waiting for 12 months.

The key difference between the Tier 2 General and Tier 2 ICT routes is that those who entered the UK in the Tier 2 ICT category after 6th April 2011 cannot ‘settle’ in the UK. Therefore, if you think you will need the person in the UK permanently you may wish to consider the Tier 2 General category.

Tier 5 Temporary Worker VisaThe Tier 5 Temporary Worker visa is for certain types of temporary worker whose entry to the United Kingdom will help to satisfy cultural, charitable, religious or international objectives, including volunteering and job shadowing.

There are several sub-categories. In most categories the migrant must be sponsored by an organisation that has a Tier 5 Sponsor Licence for the relevant category.

Temporary Worker – Creative and Sporting Category: This category is for individuals who are being sponsored to come to the UK as a sportsperson or a creative worker for up to 12 months. A creative worker is an individual who works in the creative industry, such as an actor, dancer, musician or film crew member. If a sportsperson, the migrant must be coming to the UK to make a significant contribution to their sport at the highest level. A creative worker must be making a unique contribution to the UK labour market. This might mean that they are renowned, or they could be required for continuity.

The individual will need to prove that they have specified savings, or their sponsor can certify maintenance for the migrant. Creative workers will need to demonstrate that they are paid the minimum salary set by the relevant trade union. The individual may bring dependants.

Temporary Worker – Religious Worker: This category is for individuals coming to the UK for up to 2 years to do religious work for a genuine religious organisation. The individual must be sponsored and must be able to demonstrate that they can maintain themselves throughout their stay. The individual may bring dependants.

Temporary Worker – Charity Worker: This category is for individuals coming to the UK for up to 12 months to do unpaid voluntary work for a charity. The individual must be sponsored and must be able to demonstrate that they can maintain themselves throughout their stay. The individual may bring dependants.

Temporary Worker – International Agreement: This category is for individuals coming to the UK for up to 6 years to work in a category covered by international law. This includes work covered by the General Agreement on Trade in Services, work for an overseas government or international organisation and work as a private servant either in a diplomatic household or in the household of an employee of an international organisation. The individual must be sponsored and must be able to demonstrate that they can maintain themselves throughout their stay. The individual may bring dependants.

Temporary Worker – Government Authorised Exchange: This category is for individuals coming to the UK for a short time to undertake approved training, work experience, language training or fellowships. The individual must be sponsored by an institution running an approved government authorised exchange scheme and must be able to demonstrate that they can maintain themselves throughout their stay. The individual may bring dependants.

Tier 5 Youth Mobility Scheme (YMS) VisaThe Tier 5 Youth Mobility Scheme visa allows citizens of certain countries aged between 18 and 30 to live and work in the UK for up to 2 years.

Currently, citizens of Australia, Canada, Japan, Monaco and New Zealand are eligible for a Tier 5 Youth Mobility Scheme visa. British Overseas Citizens, British Overseas Territories Citizens and British Nationals (Overseas) are also eligible to apply. Citizens of Hong Kong, the Republic of Korea and Taiwan are also eligible for a Tier 5 YMS visa if they are sponsored by a relevant government department in their home country. Family members cannot accompany Tier 5 YMS migrants as their dependent(s), but must instead apply separately.

Applicants must satisfy a maintenance funds requirement and not have any children under 18 who live with them or for whom they are financially responsible. They must also not previously have been in the UK under the Tier 5 Youth Mobility Scheme or in the former ‘Working Holidaymaker’ category.

If your employee’s application for a Tier 5 Youth Mobility Scheme visa is successful, they will be free to work (except as a professional sportsperson or doctor or dentist in training) in the United Kingdom. They will also be able to be self-employed and set up a company, provided that their premises are rented, their equipment is worth not more than £5,000 and they do not have any employees. Youth Mobility Scheme temporary migrants may also undertake voluntary work and au pair placements as and when they wish.

Sponsor licensing If you wish to sponsor workers under the Tier 2 General, Tier 2 ICT or Tier 5 Temporary Worker categories, you will need to have a Tier 2 and/or Tier 5 Sponsor Licence. A Sponsor Licence is valid for 4 years and will allow you to sponsor a worker’s visa application.

When you apply for a Sponsor Licence you will have to satisfy UK Visas and Immigration that your company is a genuine business and has an operating or trading presence in the UK. You will be required to produce original documentation to prove this. If you want to be able to transfer workers from your company’s overseas branches, you will need to demonstrate that the overseas branches are linked to the UK company by common ownership or control. You will also need to demonstrate that you have appropriate systems in place to carry out your sponsor duties. You will have to nominate senior officials in the company to undertake certain duties in relation to the licence. These people must not have any unspent criminal convictions for immigration offences or certain other serious offences.

Sponsor duties

All Tier 2 and 5 Sponsors have duties to keep accurate records of the employment of sponsored workers. Sponsors must report changes to sponsored workers’ employment. There is also a duty to comply with the law and co-operate with the Home Office.

The Home Office will require evidence that you can meet these duties and they may attend your business premises in order to inspect your systems for monitoring employees.

Once a licence has been granted, the Home Office retains substantial powers. They are able to suspend or revoke a licence if they have evidence of non-compliance with sponsor duties. They may inspect and audit your business in order to check that you are complying with your sponsor duties.

Right to work checks

Once you have identified a suitable candidate and they have obtained their visa, you should ensure that you maintain records of their immigration permission. It is illegal to hire a person who does not have permission to work in the UK. If you are found to have knowingly employed an individual who does not have permission to work, you could face up to 2 years in prison and an unlimited fine.

If you did not know that your employee had no permission to work in the UK, you may still be fined up to £20,000 per worker. The best way to avoid these penalties is to carry out a right to work check before the employee starts working for you. This will give you a ‘statutory excuse,’ should it later be discovered that the employee does not have the right to work in the United Kingdom.

You must see original documents for this check and retain either electronic or hard copies of these documents on the employee’s HR file. The copies must be in a format that cannot later be altered and should be dated. The Home Office only accepts certain documents as proof that someone can work in the UK.

Students may have permission to work, but if they do, this will be limited during term time. It is important that the student does not exceed the permitted working hours stated on their immigration documents. They must obtain an original letter from their university giving details of term dates and you must retain this on file, alongside other immigration documents.

Some individuals will state that they have an application pending with the Home Office and that their documents were sent with the application. These people may have permission to work in the UK. In this case you will need to obtain a Positive Verification Notice from the Employer Checking Service.

Follow up checks

If the employee has no time limit on their stay in the UK, you do not need to check their documents again. If the employee has a time limit on their stay in the UK then you must check their right to work again at the expiry of their permission to work.

If you have received a Positive Verification Notice in respect of the worker, you will need to check the worker’s documents again.

Discrimination

Although, as an employer, you have a duty to prevent illegal working, you also have a duty not to discriminate on the basis of race, ethnicity or nationality. It is therefore good practice to ensure that you check every employee’s right to work before they commence working for you.

Contracts of employment

It is best practice to insert clauses into contracts of employment requiring that the employee have permission to work throughout the duration of their employment. You should balance this with your duty not to discriminate.

Visit (Standard) – Business visa

Representative of an Overseas

Business

Tier 2 (Intra Company

Transfer)

Tier 2 (General)

Tier 5 (Temporary

Worker)

Tier 5 (Youth Mobility

Scheme

Maximum length of initial visa 6 months* 3 years 5 years 5 years

1 year in most cases

2 years

Extension 7 A further 2 years

Up to 5 years in total

(9 years for high earners**)

Up to 6 years in total

Up to 1 year in total in most

cases7

Settlement 7 3 7 3 7 7

Sponsor Licence required 7 7 3 3 3 3

Minimum salary requirement 7 7

£24,800 (short term staff,

skills transfers and graduate

trainees),£41,500

(long term staff) or occupation

minimum

£20,800 or occupation minimum

Creative workers only – trade

union minimum salary

7

RestrictionsPermitted

business visitor activities only

Cannot work for any other

business

Must work for sponsoring employer

Must work for sponsoring employer

Must undertake role sponsored

for

No work as a professional

sportsperson, doctor or dentist

in training

Dependents 7 3 3 3 3 3

* It is also possible to obtain a Visit (Standard) – Business visa for up to 1 year, 2 years, 5 years or 10 years. However, each visit must last no more than 6 months. ** A high earner is someone whose salary is £155,300 or more.

At Richmond Chambers LLP, our business immigration barristers regularly assist employees to enter and remain in the UK in all of the work visa routes.We also assist employers to obtain Tier 2 and 5 Sponsor Licences and comply with their sponsorship duties.

For advice and assistance with bringing employees to the UK, employing a non EEA worker or obtaining a Sponsor Licence, please contact our business immigration barristers and lawyers in London on 020 3617 9173 or by email to info@richmondchambers.com.

Seven Henrietta Street | Covent Garden | London WC2E 8PSTel 020 3617 9173 | Fax 020 3004 1611 | Email info@richmondchambers.com | www.richmondchambers.com