New changes to sole representative Visa ILRs

What are the new changes to sole representative visa ILRs?

Zoe Bantleman, Richmond Chambers Immigration Barristers

25 November 2021

In the recent changes to the Immigration Rules on 6 October 2021, the Secretary of State drastically changed the requirements for representatives of an overseas business to qualify for indefinite leave to remain.These changes were implemented with little notice (less than a month) and went relatively unnoticed by practitioners, but they signal the tightening of this route before the opening of the Global Business Mobility Visa route in Spring 2022.

The Old Sole Representative Visa ILR Requirements

Until midnight on 5 October 2021, in order to qualify for ILR or settlement, sole representatives were required to meet validity, suitability and eligibility requirements.The eligibility requirements for indefinite leave to remain as a sole representative were as follows:

They must have spent the last 5 years before the date of application in the UK with permission as a Representative of an Overseas Business;
They must meet the continuous residence requirement;
Their employer must confirm that they still require the applicant to work for them, and that they have been, and will continue to be, paid the appropriate salary, and that the applicant will be required for the foreseeable future; and
They must show English language ability on the Common European Framework of Reference for Languages in speaking and listening to at least level B1 and meet the Knowledge of Life in the UK requirement.

Subject to meeting the above, sole representative visa holders would be granted settlement.

The New Requirements for ILR as a Sole Representative

The validity and suitability requirements remain the same following the rule change.However, the eligibility requirements for ILR as a sole representative of an overseas business have significantly changed, and are an amalgamation of the previous requirements for settlement together with the more rigorous requirements for initial and extension applications.

Sole Representatives

In addition to the prior eligibility requirements, sole representatives must also show that throughout the 5-year period before the date of application:

The overseas business that they represent has been active and trading with its headquarters and principal place of business remaining outside the UK;
They have been employed and worked full time for the overseas business they represent, or for that business’s UK branch or subsidiary;
They have not undertaken work for any other business or engaged in business of their own;
They have not had a majority stake in, or otherwise owned or controlled a majority of the overseas business they represent, by means of a shareholding, partnership agreement, sole proprietorship or any other arrangement;
They have established and then supervised the registered a branch or wholly owned subsidiary of the overseas business they represent in the UK, where that branch or subsidiary was actively trading in the same type of business as the overseas business.

Additionally, sole representatives must be required by their employer to continue in the role for which their last period of permission was granted and they must provide specified documents:

Evidence of the salary paid by their employer in the 12 months immediately before the date of application and details of their remuneration package;
A letter from their employer confirming that they still require the representative to work for them, and that the representative will be required for the foreseeable future;
Evidence of business that has been generated, principally with firms in the UK, on behalf of their employer since the representative’s last grant of permission, in the form of accounts, copies of invoices or letters from businesses with whom they have done business, including the value of transactions;
Either a copy of the share register or a letter from the overseas business’s accountant confirming that the UK business is wholly owned by the overseas business; and
A letter from their employer confirming that they have supervised the UK branch or subsidiary since the last grant of permission.

Media Representatives

In addition to the prior eligibility requirements, media representatives must also show that throughout the 5-year period before the date of application:

The media organisation that they represent has been active and trading with its headquarters and principal place of business remaining outside the UK;
They have been employed and worked full time for the media organisation they represent;
They have not undertaken work for any other business or engaged in business of their own;
They have been an employee of an overseas newspaper, news agency or broadcasting organisation undertaking a long-term assignment as a representative of their overseas employer; and
They have been engaged in the employment for which their last period of permission was granted.

Additionally, as with sole representatives, media representatives must be required by their employer to continue in the role for which their last period of permission was granted and they must provide specified documents:

Evidence of salary paid by their employer in the 12 months immediately before the date of application and details of their remuneration package; and
A letter from their employer confirming that they still require the representative to work for them, and that the representative will be required for the foreseeable future.

Out With the Old, in With the New

Unfortunately, these requirements do not permit mistakes (for example, in an applicant having majority shareholding of the Parent Company, a different type of business activity in the branch or subsidiary, or temporary cessation of employment) to have been made but rectified in the five years preceding a settlement application. Although it was always a concern for cancellation or curtailment if an applicant ceased to meet the requirements of the Rules, such a mistake did not necessarily spell a refusal of settlement.Under the new Rules, although such mistakes will not be a breach of the conditions of leave, they will render applicants unable to meet the requirements for settlement.There is no grace period in the Guidance (updated on 6 October 2021) or Rules for applicants who entered the route in the five years prior to the introduction of these settlement requirements. They apply retrospectively for all applicants.Therefore, it will be safer for those applicants who have made mistakes to seek to further extend their leave until they can meet the requirements in the five years prior to the date of their future settlement application. I say this with a note of caution as such mistakes may also be used as a cause for doubting whether the subjective requirements, such as genuineness, are met. An alternative but risky avenue is for representatives to seek to settle on the basis of asking for discretion outside the ImmigrationRules, explaining and attempting to mitigate any mistakes they have made.

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