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Business Immigration FAQs - VWV Law Firm

Business Immigration FAQs

Business Immigration Frequently Asked Questions 

The below are frequently asked questions by our business immigration clients:

If you require personal immigration advice, we have developed a page of frequently asked questions.

Specialist Immigration Advice and Support for Employers

To discuss how our business immigration lawyers can help you and your organisation, please contact Tom Brett Young on 0121 227 3759, or make a quick enquiry below.

I am starting a new business. Can I employ non-EEA workers?

Before employing anybody, you need to check their eligibility to work in the UK. If you employ anybody who does not have permission to work in the UK - intentionally or not - then you can be fined up to £20,000 per illegal worker. The Home Office have published guidance on how best to carry out these checks and what documents you can accept in order to obtain a statutory excuse against a charge of employing somebody who does not have permission to work.

If you wish to employ somebody who does not have permission to work in the UK (they are not a British citizen or EEA national and do not hold a visa or other documentation entitling them to work in the UK), then there are various options you can explore to enable you to employ that person.

Please contact us and we can discuss your specific circumstances.

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I am a Tier 2 sponsor and want to employ a Tier 4 student who is presently working for us. Do I have to do the Resident Labour Market Test?

In certain circumstances a Tier 4 student is able to switch to the Tier 2 (General) category and rely on an exemption from the Resident Labour Market Test. The Immigration Rules provide that an exemption applies if:

  • the student has completed and passed a bachelor’s or master’s degree or completed 12 months study towards a PhD
  • the study was at a UK institution that is a UK recognised or listed body, or which holds a Tier 4 sponsor licence
  • the student studied the course during their last grant of leave, or during a period of continuous leave which includes their last grant of leave.

Additionally, if the Tier 4 student has been sponsored by a government or international scholarship agency within the last 12 months, they must show that the sponsoring Government or agency approves of them being sponsored to work for you.

Note that all of these requirements must be satisfied in order for the exemption to apply. Additionally, if these requirements are not satisfied, then not only will you need to carry out a compliant Resident Labour Market Test, the student will not be able to switch their status from Tier 4 to Tier 2 (General) and will have to leave the UK in order to make an appropriate visa application.

Please also bear in mind that students with Tier 4 visas are subject to restrictions on their ability to work in the UK and, if those restrictions are breached, this can have implications both for the student in terms of their eligibility to extend their stay and for an employer who is found to have employed a student in breach of their conditions.

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What is the Immigration Health Surcharge and do I have to pay it?

The Immigration Health Surcharge is a statutory fee which must be paid by all foreign nationals applying for a visa from overseas or for leave to remain in the UK which will be granted for longer than six months. Currently, applicants and their family members under the Tier 2 (Intra-Company Transfer) category are exempt, although it is expected that this exemption will be removed before the end of 2016. The amount of the Surcharge is currently £200 for each applicant for each year that their visa or leave to remain will be valid (£150 for applicants under the Tier 4 (student) and Tier 5 (Youth Mobility Scheme) categories).

As an employer, it is up to you to decide whether you wish to reimburse an employee who has paid the Immigration Health Surcharge. Should you do so, you may wish to consider including a claw-back provision in their employment contract in order to recover the cost in the event the employee leaves your employment earlier than anticipated. Our Employment team can assist with this.

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Will I have to pay the Immigration Skills Charge?

The Immigration Skills Charge is a new charge to be levied on Tier 2 sponsored workers. It is expected that the Charge will apply from April 2017 and will apply to most Tier 2 applications submitted from then on. The government are yet to confirm the full details, but it is expected that a fee of £1,000 for each year that a Tier 2 migrant is being sponsored will be payable at the point when they apply for a visa or leave to remain. In a ministerial statement earlier this year, the then Immigration Minister said that a discounted Charge of £364 per year would apply to sponsors who have charitable status or are classified as small and medium sized businesses. It is also expected that PhD occupations, graduate trainees in the Intra-Company Transfer category and students switching to Tier 2 (General) from Tier 4 will also be exempt.

As with the Immigration Health Surcharge, you may wish to consider speaking to our Employment team about including a claw-back provision in your employment contracts in order to recover the costs of the Immigration Skills Charge and other immigration fees in the event the employee leaves your employment earlier than anticipated.

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I have an employee with limited leave to remain - will they be eligible for indefinite leave to remain?

The answer to this question depends on the employee's current immigration status. If the employee is sponsored under the Tier 2 (General) category then ordinarily they will be eligible for indefinite leave to remain after completing five years in the UK in that category. There are various requirements which the employee will need to satisfy in order to qualify for indefinite leave to remain though, such as satisfying an English language requirement, passing the Life in the UK Test and satisfying requirements relating to criminal convictions and their absences from the UK.

Employees sponsored under the Tier 2 (Intra-Company Transfer) category will not be eligible for indefinite leave to remain unless their initial grant of leave in that category was made under the rules in place before 6 April 2010.

Employees with limited leave to remain in other categories may qualify for indefinite leave to remain if the category of their visa  permits it. Please contact us for further information about this.

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My business employs a large number of EEA nationals. What is going to happen to them now that the UK has voted to leave the EU?

The result of the UK's referendum on EU membership held on 23 June 2016 has created a great deal of uncertainty. Answers to many of the questions you and your employees may have are likely to be found on our Immigration Q&A after Brexit page.

If you wish to discuss the implications of Brexit for your business and employees further, please contact us. We can assist with applications to the Home Office should any of your EEA national employees wish to apply for residence documentation or British citizenship. We can also come to your workplace to deliver workshops and seminars to help answer any questions you and your employees may have.

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I am planning to invest in a business in the UK. Can I use this investment to obtain a UK visa?

The UK has two main immigration categories for non-EEA nationals who wish to make investments in the UK. The Tier 1 (Entrepreneur) visa is for one or two applicants who have funds available (usually £200,000) to invest in a new or an existing business or businesses in the UK and who will be coming to the UK to play an active role in the running of that business or businesses. The Tier 1 (Investor) category is for wealthy non-EEA nationals who want to come to the UK and invest at least £2,000,000 in UK government bonds, share capital or loan capital in active and trading UK companies.

In both the Investor and the Entrepreneur categories there are very strict requirements about the source of the funds and how they must be invested. If you do not qualify under either of those categories then there may be other options for you, for example under the Tier 1 (Exceptional Talent) category.

Please contact us should you wish to discuss any of these options further.

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I wish to expand my business's operations and open a branch in the UK. How do I get a visa that allows me to do this?

You may be able to apply under the representative of an overseas business category. There are various requirements which need to be satisfied, but some important ones to note initially are that the business cannot have any existing operations or trading presence in the UK and also that the person applying for this visa must hold a senior position within the company with authority to make decisions on its behalf, but they cannot be a major shareholder.

It may also be possible for someone in this situation to apply under the Tier 1 (Entrepreneur) category instead.

Please contact us for further details if you are interested in applying for this visa.

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Do I need to use a solicitor to help with a sponsor licence application?

There is no requirement to use a solicitor or other legal representative when making any immigration application. However, the Home Office's guidance for Tier 2 and Tier 5 sponsors is lengthy (over 250 pages, including appendices) and imposes many rather onerous duties upon sponsors. It is therefore important that an organisation applying for a sponsor licence is fully aware of and able to comply with these requirements. Additionally, the Home Office are very strict about the supporting documents which they will accept and we have been contacted by many companies after their applications have been rejected because the documents they submitted did not comply precisely with the Home Office's requirements.

Our team have been assisting with sponsor licence applications since sponsorship was first introduced in 2008 so we have a great deal of experience in this area. We can help you navigate through the documentary requirements and help you to comply with your sponsor duties in a way which meets both your needs and the Home Office's requirements.

Please contact us for further information about sponsor licence applications.

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I am a Tier 2 sponsor and my licence is about to expire. How do we go about renewing it?

On the face of it, the application to renew an existing sponsor licence is relatively straightforward: a level 1 user named on your sponsor licence makes an online declaration through the Sponsor Management System and then pays the application fee. However, the act of applying to renew a sponsor licence can trigger a Home Office compliance visit, particularly if it is some time since your last inspection (or you have never had one at all). Therefore, our advice is that before applying to renew your licence you review your records and processes to ensure that you are still complying with your record keeping, monitoring, reporting and preventing illegal working duties.

It is of crucial importance that the renewal application is submitted before the previous licence expires. We suggest that you apply to renew your licence at least one month before the expiry date so that you have time to act in the event that there is a problem, such as issues with the payment being processed. Additionally, the Home Office have recently confirmed that they will no longer extend a grace period to sponsors who inadvertently forget to renew their licence. This means that if you forget to renew your licence the renewal option will no longer be available to you - you will need to submit a fresh sponsor licence application. Not only is that a more onerous exercise than simply applying to renew the licence, but by letting your licence lapse the Home Office are very likely to curtail the leave of any existing sponsored migrants, which would be devastating from a business continuity perspective and could also give rise to employment law issues.

Please contact us if you would like our assistance preparing for and submitting an application to renew your sponsor licence.

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Can colleagues from our head office overseas come to the UK and work for us?

If you have a Tier 2 sponsor licence which includes the intra-company transfer category, and the Home Office have already been notified of the relationship between you and your head office, then you may wish to sponsor colleagues from overseas under the Tier 2 (Intra-Company Transfer) category. Note though that migrants coming to work in the UK under this category can only do so for a maximum of 12 months, five years or nine years depending on their salary and other factors. This category cannot lead to indefinite leave to remain in the UK.

For colleagues coming to the UK for a short period for meetings then they may be able to come here as a visitor. The Immigration Rules which apply to business visitors are very strict and entry is always at the discretion of the Immigration Officer so if there is any uncertainty as to whether the colleague's visit would include some periods of work, you should seek further advice on this.

If you regularly have colleagues from overseas visiting you in the UK you may wish to adopt a policy on business visitors setting out the circumstances in which the proposed activities in the UK are covered by the visitor rules and when permission to work may be required. We can assist with the preparation of such a policy and any other queries you might have about visitors to the UK.

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We have just rewarded one of our Tier 2 (General) sponsored employees with a promotion, bonus and pay rise. Do we need to tell the Home Office?

As a sponsor, various events relating to both your employment of sponsored workers and the status of your organisation must be reported to the Home Office within specific timescales after they occur. For example, you are required to report changes relating to the employment of a sponsored worker within 10 working days of the change taking effect. In relation to pay, bonuses and pay rises arising from annual increments do not need to be reported, but a substantive change in salary resulting from a promotion most probably will need to be reported.

If there have been any changes to the employee's duties and/or their job title, then this must be reported too. Note though that if the employee's job has changed to such an extent that it no longer sits within the same occupation code which you used when you sponsored this individual then further action will be required: the employee would need a new Certificate of Sponsorship and then make a new application for leave to remain. This may also require you to carry out a new Resident Labour Market Test first, unless an exemption applies.

Please contact us if you have any queries about your sponsorship duties.

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We have just been taken over by another company. How does this affect our Tier 2 sponsor licence and Tier 2 sponsored employees?

Takeover, merger and de-merger situations are complicated enough but the situation can be even more complicated when there is a sponsor licence involved. A change to the ownership of an entity which holds a sponsor licence must be reported to the Home Office. The Home Office's sponsor guidance states that a sponsor licence is not a transferable asset and so, in certain circumstances where there has been a change of ownership, the Home Office may require you to surrender your existing licence and apply for a new one.

The change of ownership must be reported to the Home Office within 20 working days of the change taking place. If a new sponsor licence is required then provided a valid application for a new licence is submitted within that 20 working day period then the position of your existing sponsored workers will be protected while the application for a new licence is being considered. Any employees whose employment will be transferred to a new entity as a result of the change of ownership will not need a new Certificate of Sponsorship provided the transfer is covered by the TUPE regulations.

If you have a sponsor licence and changes to your corporate structure are planned - particularly where those changes will affect the entity which holds the licence - we would suggest that you contact us as early as possible. We can help you put together a plan in order to protect both your position as a sponsor and your existing sponsored employees.

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To discuss how our business immigration lawyers can help you and your organisation, please contact Tom Brett Young on 0121 227 3759

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The 'brilliant' Tom Brett Young is a 'really clever lawyer' who wins plaudits for his work in business immigration. He is highly sought after for his knowledge of work visa applications.

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Our experienced team of immigration lawyers offer tailored immigration advice and guidance for both your business immigration and personal immigration requirements.

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Tom Brett Young - Partner & Specialist Immigration Solicitor in Birmingham - VWV Solicitors

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Sponsorship Compliance

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Judith Hockin - Immigration Solicitor in Bristol - VWV Law Firm

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Matthew Burgess - Education Consultant in Bristol - VWV Law Firm

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