Corporate immigration and highly skilled workers

Sole Representative visa

Foreign company that would like to establish its first commercial presence in the UK can send one senior employee to the UK on the Sole Representative visa. To qualify for this visa, certain criteria must be met by the overseas company and by the individual visa applicant. The overseas company must trade for at least 12 months, must intend to establish its first subsidiary or a branch in the UK and must have no intention of moving its headquarters to the UK. The individual chosen for the Sole Representative role must be a senior employee of the overseas company with good knowledge of the company’s business activities/procedures, must not be a majority shareholder and must demonstrate English language knowledge at level A1 in speaking and listening. The initial visa is granted for 3 years and can be extended for further 2 years. After 5 years the Sole Representative visa holder can apply for settlement in the UK and then for UK citizenship.

Tier 2 sponsor licence

To be able to employ non-EEA nationals, UK organisations must first obtain a Tier 2 sponsor licence from the UK immigration authorities (Home Office). There are a number of requirements that organisations must meet to qualify for the Tier 2 licence:

  • have trading presence and operate lawfully in the UK;
  • have HR systems and processes in place to comply with sponsorship duties (e.g. right to work checks, absence policies, reporting duties);
  • be able to offer highly skilled jobs (in general, the jobs must be NQF Level 6 or above with very few exceptions).

There is a prescribed list of documents that sponsor licence applicants can submit for the application. In most cases the applicants must provide at least 4 supporting documents from the list and these documents must be either originals or certified copies (certified copies must have a strictly prescribed wording inserted by legally qualified professionals OR an organisation that issued the document). Prior to making their decision on the licence application, the Home Office may conduct a visit (audit) to the business premises of the sponsor applicant. During the visit the Home Office officer speaks to the Authorising Officer (person appointed by sponsor to be responsible for immigration compliance) and reviews the sponsor’s HR records to check if the organisation has HR systems and procedures in place to comply with the immigration sponsorship duties and whether the sponsor is familiar with these duties. The Home Office processing time for sponsor licence applications is usually between approximately 5-9 weeks.

Tier 5 sponsor licence

To employ short term workers (Sports, Charity, Religious, International Agreement, Government Authorised Exchange, Seasonal) from outside the EEA, UK organisations must first obtain and authorisation from the UK immigration authority (Home Office). There are a number of requirements that organisations must meet to qualify for the licence:

  • have trading presence and operate lawfully in the UK;
  • have HR systems and processes in place to comply with sponsorship duties (e.g. right to work checks, absence policies, reporting duties);
  • have an endorsement from the appropriate authorised body and meet the specific requirements for your category. Please see further details below.

Tier 5 Sportspeople sponsor licence - you must be a sporting body, sports club, events organiser or other organiser operating, or intending to work in the sporting sector. If you are an agent, you cannot be a sponsor for sports people under this category. Before applying, you must obtain an endorsement from the Home Office approved governing body for your specific sport.

Tier 5 charity workers sponsor licence - you must be a registered, excepted or exempt UK charity in line with the relevant charity legislation in force in your part of the UK, or an ecclesiastical corporation, either corporation sole or body corporate, established for charitable purposes.

Tier 5 creative workers sponsor licence - you must be operating, or intending to operate, in the creative sector. Examples include, but are not limited to: national body, event organiser, producer , venue, agent, another similar organisation.

Tier 5 Government Authorised Exchange (GAE) sponsor licence – The UK Home Office wants to avoid any unnecessary proliferation of GAE schemes. The Home Office will consider adding a new scheme only where there is a compelling case for doing so. The existing GAE schemes are listed in the Immigration Rules. The underlying principles of such schemes are that: the scheme must be endorsed by a government department and the scheme will be administered by a single overarching sponsor.

Tier 5 International Agreement sponsor licence - you must intend to sponsor: employees of overseas governments, employees of international organisations, private servants in diplomatic households or households of officials working for international organisations. You must be a diplomatic mission or international organisation recognised by the UK (an international organisation includes offices of ‘states’ not recognised by the UK).

Tier 5 seasonal worker sponsor licence - This is a pilot scheme that will run between February 2019 and December 2020. You must be: endorsed by the Department for Environment, Food and Rural Affairs (DEFRA) to be an approved scheme operator and you must be licensed by the Gangmasters and Labour Abuse Authority. Individual employers and organisations are not allowed to sponsor migrants under this route, even if they are licensed as a sponsor under other tiers or other subcategories of the points-based system. Only two approved scheme operators will be endorsed by DEFRA for this pilot: Concordia (UK) Ltd and Pro-Force Limited.

Sponsorship duties and compliance

UK employers must obtain sponsorship licence (authorisation from the UK Home Office) to be able to employ non-EEA nationals. When the licence is granted there are a number of duties and obligations that the licence holders must comply with. Lack of compliance can lead to the licence being suspended or revoked. The Home Office can visit sponsor’s business premises both before the licence is granted (pre-licence audit) and at any time during the licence validity, to check if sponsors comply with their sponsorship duties and obligations. The visits may be announced or unannounced, which gives very little or no time to prepare. It is therefore crucial for sponsors to understand their obligations and ensure compliance at all times. The key sponsor duties are the following:

  • Record keeping duties: e.g. Keep records of all employees passports and immigration permits, evidence of labour market test conducted for Tier 2 General. This duties are explained in Home Office guidance called Appendix D.
  • Reporting duties: You must update the Home Office via your SMS online account of certain information or events within 10 working days, e.g. if sponsored migrant does not turn up for their first day of work, if migrant’s contract is terminated earlier than indicated on their COS, if you become aware that migrant changed to a different visa type, if migrants work location or salary or job duties change. There is also a duty to keep the Home Office updated on certain information and events relating to the sponsor’s business, e.g. if there is change of ownership, if business location changes, if there are mergers/acquisitions or other restructuring, if the business stops trading or is under administration or similar arrangments.
  • Complying with the law: e.g. Only allow the migrant to undertake the specific role set out in their CoS, only assign a CoS to migrants who you believe will meet the requirements of the tier or category and are likely to comply with the conditions (rules) of leave, not assign a CoS where there is no genuine vacancy or role which meets the Tier 2 or 5 criteria, Not employ migrants where they don’t have the experience or permission to do the job in question, and stop employing any migrants who for any reason are no longer entitled to do the job.
  • Genuine vacancy: Genuine vacancy is one that requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the tier and category and does not include dissimilar and/or lower-skilled duties.
  • Co-operating with the Home Office: You must co-operate and allow Home Office staff full access to any premises or site under your control on demand. If any migrants you sponsor work at a third party’s premises, you must also ensure that they are aware of the possibility of visits and checks being conducted at their premises and ensure their full cooperation.
  • Tier specific duties for Tier 2 General and Tier 2 Intra Company Transfer (ICT): e.g. You must not assign: a restricted CoS to a migrant for any job other than the one you described in your application for that restricted CoS, a restricted CoS where an unrestricted CoS is needed, an unrestricted CoS where a restricted CoS is needed. When you assign a CoS under Tier 2 (General) you guarantee one of the following: you carried out a genuine resident labour market test in accordance with the rules in force at the time, the job is exempt from the resident labour market test, the job appeared in a UK-wide shortage occupation listed in Appendix K of the Immigration Rules, on the date that you assigned the CoS. If the job is in Scotland, the job appeared in a shortage occupation listed for Scotland in Appendix K of the Immigration Rules, on the date that you assigned the CoS. Where it was a requirement to carry out a resident labour market test, the migrant will be paid in line with the rate you stated when you advertised the job and the migrant will be paid at or above the appropriate rate including specific permitted allowances for that job.

Tier 2 (General) visa

This visa is for highly skilled migrants with a job offer from a UK employer holding a Tier 2 (General) sponsor licence (i.e. authorisation from the UK Home Office to employ non-EEA skilled workers). The key requirements for this visa are:

  • The job must be highly skilled, which in most cases means NQF Level 6 or above (graduate level jobs). There are very few exceptions when lower skill level roles can qualify for the visa.
  • The Tier 2 sponsor employer must first conduct a labour market test (i.e. advertise the role to check if there are any local workers who can fill the vacancy). There are few exceptions from the job advertising requirement (e.g. when the applicant is switching from Tier 4 student visa to Tier 2 General visa from inside the UK or when the salary is £159,600 or above).
  • The minimum salary is £30,000 (£20,800 in some limited circumstances, for example when applicant is switching from Tier 4 student visa to Tier 2 skilled worker) OR the minimum for a particular job (SOC CODE), whichever is higher. The Home Office has a list of jobs (SOC CODES) that qualify for the Tier 2 visa and each of this SOC CODES has a minimum salary assigned to it. The minimum salary for the job (SOC CODE) may be higher than £30,000. In such cases, the SOC CODE minimum has to be paid to the migrant.
  • The sponsor employer must issue a Certificate of Sponsorship (COS) to the migrant visa applicant. The COS is an electronic work permit setting out the terms of employment and personal details of the migrant.
  • There are no general grounds for refusal of the visa (i.e. the applicant’s criminal record, involvement in terrorism etc.).

The Tier 2 General category does lead to settlement (Indefinite Leave to Remain) after 5 years in the UK and then to UK citizenship.

You cannot apply under Tier 2 (General) if you are applying for permission to work as a Sportsperson or a Minister of Religion.

Tier 2 (Intra Company Transfer) visa

This visa is for highly skilled migrants with a job offer from a UK employer holding a Tier 2 (Intra Company Transfer) sponsor licence (i.e. authorisation from the UK Home Office to employ non-EEA skilled workers). The key requirements for this visa are:

  • The job must be highly skilled, which in most cases means NQF Level 6 or above (graduate level jobs). There are very few exceptions when lower skill level roles can qualify for the visa.
  • The visa applicant must have at least 12 months service in an overseas company linked by common ownership or control with the sponsor employer company (i.e. the overseas company must be within the same Group). Applicant is exempt from this requirement if the salary is £73,900 or above.
  • The minimum salary is £41,500 OR the minimum for the particular job (SOC CODE), whichever is higher. The Home Office has a list of jobs (SOC CODES) that qualify for the Tier 2 visa and each of this SOC codes has a minimum salary assigned to it. The minimum salary for the job (SOC CODE) may be higher than £41,500. In such cases, the SOC CODE minimum has to be paid to the migrant.
  • The sponsor employer must issue a Certificate of Sponsorship (COS) to the migrant visa applicant. The COS is an electronic work permit setting out the terms of employment and personal details of the migrant.
  • There are no general grounds for refusal of the visa (i.e. the applicant’s criminal record, involvement in terrorism etc.).

For the Tier 2 (Intra Company Transfer) visa, the sponsor employer does not need to carry out the labour market test (i.e. no job advertising is required prior to offering the role to non-EEA national) and there is no English language requirement for the applicant.

The Tier 2 (Intra Company Transfer) visa category does not lead to settlement (Indefinite Leave to Remain) in the UK. The Tier 2 ICT visa holders can spend maximum of 5 years in the UK on this visa OR maximum of 9 years if their salary is £120,000 or above. After the 5 or 9 years (as applicable) they will need to depart the UK or switch to a different visa type. They will not be able to apply for another Tier 2 visa (ICT or General) for 12 months. This restriction is called the cooling-off period.

You cannot apply under Tier 2 (Intra Company Transfer) if you are applying for permission to work as a Sportsperson or a Minister of Religion.

Tier 2 (General) and Tier 2 (Intra-company Transfer) visas – comparison

There are two main categories of skilled worker visas: Tier 2 Intra Company Transfer (ICT) and Tier 2 General. Below we compare these two categories:

  • The sponsor employer must hold a sponsor licence in the Tier 2 ICT category to be able to employ non-EEA nationals on Tier 2 ICT visas and it must hold a Tier 2 (General) sponsor licence category to be able to employ non-EEA nationals on Tier 2 General visa.
  • The skill level required for both visa categories is NQF Level 6 or above (graduate level jobs). There are very few exceptions when lower skill level roles can qualify for the visa.
  • The job categories (i.e. SOC CODES and assigned to them minimum salaries published by the Home Office) that qualify for the visa are the same for both Tier 2 ICT and Tier 2 General.
  • Tier 2 ICT visa can be used by employees who are already employed by an overseas company and who are now being sent to work in the UK subsidiary/branch. The minimum service required with the overseas company is 12 months unless the salary is £73,900 or above, when the ICT applicants are exempt from the service requirement. The Tier 2 General visa category does not require previous employment with an overseas company and is available for both current overseas employees and to new hires.
  • The minimum salary for ICT visa is currently £41,500 and for Tier 2 General is £30,000 (in some limited cases it may be £20,800). However, if the SOC CODE (job category from the Home Office list that is the closest match to the applicant’s role ) has a minimum salary of over £41,500, then this higher salary will have to be paid to both Tier 2 ICT and Tier 2 General migrant.
  • For the Tier 2 General visa the sponsor employer in most cases must first conduct a labour market test (i.e. advertise the role to check if there are suitable local workers who can fill the vacancy). There is no labour market test requirement for the ICT visa.
  • You cannot apply under Tier 2 (General) or Tier 2 (Intra-Company Transfer) if you are applying for permission to work as a Sportsperson or a Minister of Religion.
  • ICT visa does NOT lead to settlement in the UK and after 5 years (9 years for high earners of £120,000 or above) the ICT visa holder must depart the UK or switch to a different visa category. Tier 2 General category does lead to settlement after 5 years in the UK and then to UK citizenship.

Tier 2 (Sportsperson) Visa

Sportsperson – You can apply for this visa if you are an elite sportsperson or coach whose employment will make a significant contribution to the development of your sport at the highest level in the UK. Your sponsor employer will need to have obtained an endorsement for you from the appropriate governing body for your sport. You must also meet the English Language and maintenance (available funds) requirements for this category. The initial visa can be granted for up to 3 years and it can be extended by a further 3 years. This visa leads to settlement after 5 years in the UK.

Tier 2 (Minister of Religion) Visa

Minister of Religion – You can apply for this visa if you are a Minister of Religion undertaking preaching and pastoral work, Missionary, or Member of a Religious Order and are taking up employment or a post/role within your faith community in the UK. The initial visa can be granted for up to 3 years and it can be extended by a further 3 years. This visa leads to settlement after 5 years in the UK.

Meet the team

Solicitor - Commercial

Aleksandra is a Solicitor in the Commercial team. She joined the firm in April 2017 with 10 years’ experience working in law firms, advocates’ offices and non-governmental organisations in Poland and in the UK. Having originally qualified in Poland, Aleksandra is a dual-qualified lawyer with a highly varied practice and she is experienced in matters including immigration, criminal, civil and cross-jurisdictional cases.

Aleksandra regularly advises companies and high net worth individuals on Tier 1, Tier 2 and Sole representative of an overseas business applications, and advises EEA nationals on permanent residence, naturalisation, and EEA family permit applications.

Her practice has also involved representing Polish and international companies establishing businesses in Poland and in the UK, drafting and negotiating contracts and advising on suitable business entities and company formation.

Aleksandra also works closely with the firm’s Private Client department and is involved in administration of estate and preparing wills and powers of attorney.

Aleksandra graduated from the University of Gdansk with a master’s degree in Law, before qualifying as an advocate and has also achieved degrees in EU law and American law. Away from the office, Aleksandra enjoys fitness, classical music and learning languages.

Aleksandra is a member of the Immigration Law Practitioners’ Association.

020 7406 1000 - AleksandraKowalska@cartercamerons.com
Partner - Employment

Andrew Firman is a partner in our corporate & commercial team. His employment practice covers both contentious and non-contentious work for both employers and employees. His corporate and banking practice concentrates on contractual and advice work given mainly to SMEs and charities. Additionally, he advises both individuals and businesses on a range of immigration matters.

Transactions

In his work, Andrew looks for proactive and pragmatic solutions derived from a proper understanding of the client’s perspective and against the background of the commercial constraints.

Career highlights include

  • running a David v Goliath style battle for a former employee of a US based bank related to the late vesting of share options following that employee’s termination at a time when the US markets were in freefall
  • negotiating, finalising and drawing down for an off-shore SPV borrower at £310M facility to buy a group of companies which owned, as an investment, the London HQ of a multinational corporation

More recently, Andrew has advised upon

  • the sale of a leading clinician–led healthcare consulting and IT services group to a global technology and services company specialising in the healthcare field
  • the restructuring and relocation of a nutritional supplements business within the UK
  • settlement of a long running shareholders dispute concerning a company running a niche members’ gym in a close knit area of London
  • finalisation of the UK legal aspects to a cross border merger with an Italian company
  • the negotiation of departure terms for the CEO of a leading interdealer broker

Andrew has over the years enjoyed advising many owner-managed SMEs on the range of their needs for commercial, employment and dispute related legal advice.  He is delighted that the firm has recently received recognition through the award by Acquisitions International of “UK Most Trusted Law Firm of the Year to SMEs 2013” because it goes to the depth of the relationships the firm has with its clients and its target market in terms of size of business clients.

Andrew was educated at Nailsea School and holds degrees in law from Manchester and Leicester Universities.  He qualified as a solicitor in 1995. He is a co-author of a Practical Guide to Drone Law.

Away from the office Andrew, married to a local GP and of occasional use to his three teenage children, runs and is heavily involved in his local church.

020 7406 1000 - AndrewFirman@cartercamerons.com
Partner - Corporate

The Legal 500: Recommended lawyer 2020Katarzyna (Kate) Boguslawska is a Partner in our corporate and commercial department.

Kate’s clients range from start-up owners through to SMEs and some global main-players who need advice on business-related matters. These range from advice on employment and company matters to contract drafting and disputes. Kate understands her clients, their needs and goals. Her clients often praise her pragmatic approach and tailored practical advice.

Employment

In her employment practice Kate:

  • drafts contracts, handbooks and company policies
  • provides regular Employment/HR Advice
  • negotiates contracts
  • drafts and negotiate settlement agreements
  • helps to navigate through TUPE, restructure and redundancies
  • advises and represents in claims for unfair dismissal, discrimination, breach of contract, unlawful deduction from wages, etc
  • advises on injunctive relief and restrictive covenants

Notable employment work included:

  • advising a well-known English designer in company restructure and redundancies;
  • advising employers and high net worth individuals on settlement agreements and severance packages;
  • regular HR advice to a number of company clients;
  • advising media company on contracts and issues relating to confidentiality, IP and restrictive covenants;
  • representing high earning claimants in ‘Stress at Work’ personal injury matters.

Commercial

In her commercial and company practice Kate:

  • advises on suitable business entities and company formation;
  • advises on company and directors’ duties;
  • drafts necessary company documents including amended articles and resolutions;
  • drafts and negotiates contracts and shareholders’ agreements;
  • advises on shareholders disputes.

Notable commercial work included:

  • advising and representing foreign companies establishing business in the UK;
  • advising companies on matters involving directors’ duties and shareholders’ disputes;
  • advising a Polish PLC on contract matters and negotiating on its behalf with an English PLC;
  • representing an international cosmetics company in injunctive relief and restraint of trade matters;
  • representing hauliers in representations against Border Force and HMRC in excise duty matters;
  • advising EU nationals on immigration issues, residency and citizenship applications in the UK.

More…

Kate has strong links in the Polish community and is recommended by the Polish Embassy in London, having co-written a Guide for Polish Investors in the UK that was published by the Embassy. She has a broad network of international connections and has been instructed by law firms in Poland to assist their clients in matters involving English jurisdiction.

020 7406 1000 - katarzynaboguslawska@cartercamerons.com

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