When it comes to applying for a UK business visa it is best to plan for the future. If your long-term goal is settlement in the UK, your business immigration solicitor should look at your settlement options with you before you select your business visa application to ensure your planned visa is the best route for you to achieve settlement in the UK.
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- Can you settle in the UK after entry on a business visa?
- What are the business immigration categories that can lead to UK settlement?
- What is the minimum business visa length before you can apply for UK settlement?
- Which business visa categories allow you to apply for accelerated UK settlement?
- Can you switch business visa and apply to settle in the UK?
- What are the general eligibility criteria for Indefinite Leave to Remain?
- Settlement applications and breaches of UK immigration laws
- What is the residence requirement for Indefinite Leave to Remain?
- Calculating absences from the UK and the Indefinite Leave to Remain residence requirement
- What happens if you exceed the ILR residence requirement and absence rules?
- Applying for Indefinite Leave to Remain after entry on an innovator visa
- Can you apply for British citizenship after UK entry on a business visa?
Can you settle in the UK after entry on a business visa?
There are a number of business immigration categories where it is possible for a business visa holder to apply for settlement in the UK provided that they:
- Have been in the UK lawfully on a relevant business visa for the minimum required period of time to apply for Indefinite Leave to Remain (ILR).
- Meet the general eligibility criteria for ILR.
- Meet the continuous and lawful residence requirement for ILR.
Once you have secured Indefinite Leave to Remain, and you meet the citizenship eligibility criteria, you can choose whether to apply for:
- British citizenship, or
- Dual nationality – provided that your country of origin or nationality of choice allows dual nationality. The UK allows dual nationality, but some countries don’t.
If you don’t want to acquire British citizenship (because you don’t want to lose your original nationality, for tax purposes or for other reasons) you may want to continue to hold Indefinite Leave to Remain status in the UK. If that is the best option for you it is important to understand the Immigration Rules on ILR.
What are the business immigration categories that can lead to UK settlement?
The UK government has repeatedly said it wants to attract the ‘brightest and best’ to set up business and settle in the UK. For many entrepreneurs, entry to the UK isn’t an attractive option unless their business or work visa can lead to UK settlement. Owners of start-up businesses don’t want to invest time and money into a country on a temporary basis and then have to leave a profitable business that can’t easily be relocated from the UK. For those reasons, many business visas and work visas do lead to UK settlement, such as the:
- Investor visa
- Global talent visa
- Innovator visa
- Sole representative visa
- Tier 2 (General) visa – this visa route closed in December 2020, but those who have Tier 2 (General) visas can still apply for Indefinite Leave to Remain provided they meet the ILR eligibility criteria.
- Skilled worker visa – this visa route opened in December 2020 and replaces the Tier 2 (General) visa.
If you are in doubt as to whether a particular business visa or work visa is the right option for you then it is best to take legal advice from specialist business immigration solicitors. For example, if you are a relatively inexperienced entrepreneur, you may not meet the eligibility criteria for an innovator visa. However, you may meet the endorsing body eligibility criteria for endorsement for a start-up visa.
Whilst the start-up visa doesn’t lead directly to settlement in the UK you can switch to an innovator visa from the start-up visa once you have gained entrepreneurial experience and meet the innovator visa eligibility criteria. If you assume that your only settlement option is to apply for an innovator visa then this can lead to a business visa rejection when there is a better indirect path to UK settlement for you that meets your circumstances.
In addition, if you entered the UK on a business visa that is now closed to new applicants, such as the:
- The Tier 1 (Exceptional Talent) visa, or
- The Tier 1 (Entrepreneur) visa, or
- Tier 2 (General) visa.
Then these visas can still lead directly or indirectly to UK settlement.
What is the minimum business visa length before you can apply for UK settlement?
The majority of business visas and work visas leading to settlement in the UK require a visa holder to have been living lawfully in the UK for a minimum of five years before being eligible to apply for Indefinite Leave to Remain. However, there are exceptions and some business visas do allow for ILR applications after less than five years. This is referred to as ‘accelerated settlement’.
Which business visa categories allow you to apply for accelerated UK settlement?
The business visas that provide a route for accelerated UK settlement are the:
- Tier 1 (Investor)
- Tier 1 (Exceptional Talent)
- Tier 1 (Entrepreneur)
- Innovator visa
- Global talent visa.
All of these business visa categories enable applicants to apply for ILR through accelerated settlement. For example, if you are in the UK on an innovator visa you can apply for settlement in the UK after three years. However, time spent in the UK on the start-up visa, before switching to the innovator visa, won’t count towards the minimum period of three years residence in the UK.
Can you switch business visa and apply to settle in the UK?
The Immigration Rules do allow for visa holders to apply to switch business visa category. In some situations, time spent in your first visa category won’t count for settlement purposes but in other cases it will. This is because the Immigration Rules allow you to rely on time spent in some different categories to qualify for ILR after five years.
For example, if you hold a Tier 2 (General) visa you can combine time spent in the UK on the Tier 2 visa with time spent on most types of Tier 1 visa when calculating the five-year lawful residence period for your ILR application. If you apply for ILR as a skilled worker visa holder your five-year residence requirement can include time spent in the UK on your skilled worker visa as well as time on a prior Tier 2 (General) visa, global talent, innovator or representative of an overseas business visa.
However, it is best to get business immigration advice on routes to ILR and minimum residence requirements. That way you won't be surprised or disappointed by the timescale to apply for ILR. For example, time spent on a start-up visa before switching to an innovator visa doesn’t count towards the three-year residence requirement before you are eligible to apply for ILR on an innovator visa. If you know the minimum residence requirements you can ensure that, if necessary, you submit an appropriate work visa or business visa extension application rather than a settlement application. Business immigration solicitors tend to find that with clear residence requirement advice work holders of visa and business visas find the wait to secure ILR more favourable.
What are the general eligibility criteria for Indefinite Leave to Remain?
A business visa holder will need to meet both the general eligibility criteria for Indefinite Leave to Remain as well as the visa specific criteria for ILR. The general eligibility criteria for ILR are:
- You satisfy the English Language requirements for an ILR application. You may need to take a test to establish that you meet the English language requirement, or you may be exempt. You can find out if you meet the English language requirement or if you will need to sit a test on gov.co.uk. A test may not be needed if you passed a test when applying for your work visa or business visa.
- You have either taken the Life in the UK test or are exempt from having to sit the test. The test is a multi-choice paper that asks general questions about life in the UK. You can find out more information about the test and if you are exempt from sitting the test on the gov.co.uk website.
- You have not breached any UK immigration laws. These are set out in Part 9 of the Immigration Rules. Reference in the Immigration Rules to ‘permission to stay’ includes settlement applications.
- You meet the continuous residence requirement for your ILR application.
Settlement applications and breaches of UK immigration laws
No business visa holder ever anticipates their ILR application being refused because they are in breach of Immigration Rules. However, business immigration lawyers advise that some business visa and work visa holders can be caught out by Part 9 of the Immigration Rules, particularly as the Rules are regularly updated by the Home Office.
For example, settlement applications must now be refused by a Home Office official where an applicant has been convicted of a criminal offence for which they received a custodial sentence of at least twelve months, irrespective of when the offence occurred. An application may be refused if an ILR applicant has been convicted of a criminal offence for which they have received a non-custodial sentence or out-of-court disposal recorded on their criminal record. Even owing money to the Home Office or the NHS could result in the refusal of your Indefinite Leave to Remain application. That’s why business immigration solicitors will ask questions about your stay in the UK to check out whether there is a risk that your application might be refused on general grounds and, if so, to consider the careful drafting of the application to persuade a Home Office official to exercise discretion and grant the application.
What is the residence requirement for Indefinite Leave to Remain?
The majority of UK business and work visa settlement routes include a residence requirement that says you must not have spent more than one hundred and eighty days outside the UK in any twelve-month period during the qualifying period of lawful residence. The Home Office publishes guidance on the residence requirement which you may find useful.
It is best to know about the Immigration Rules on the residence requirement at the outset of your business visa application so that you can plan your departures from the UK around the residence requirement rule. For example, many business visa holders need to spend extensive periods out of the UK on business related activities or for family reasons.
The residence requirement rules depend on the type of business or work visa that you are on when applying for ILR in the UK. For example, the residence requirement rules (and evidence requirements for absences) are different if you are applying for ILR on an innovator visa or a global talent visa or on the skilled worker visa.
Calculating absences from the UK and the Indefinite Leave to Remain residence requirement
Generally, when you calculate absences from the UK, the periods away from the UK are considered on a rolling basis if your five-year calculation period started after January 2018. That means any consecutive twelve-month period can be considered, rather than calculating absences on an annual basis from the date of your arrival in the UK on a business visa or looking back from the date of your application for ILR.
An important point to note is that if your five-year residence requirement period started before the 11 January 2018, then any leave granted before that date is assessed under the old Immigration Rules. That means absences before January 2018 are assessed by looking at periods out of the UK in consecutive twelve-month periods ending on the date of your Indefinite Leave to Remain application.
Depending on your business visa category, it pays to keep careful records of your absences if you believe that you may be near the Immigration Rule limits. That is because if you are only out of the UK for part of a day, as you are travelling from or back to the UK, these days don’t count as part of the one-hundred-and-eighty-day allowance.
What happens if you exceed the ILR residence requirement and absence rules?
If you have been absent from the UK for more than one hundred and eighty days in a relevant period, this doesn’t necessarily mean that your Indefinite Leave to Remain application will be refused by Home Office officials. This is because different rules apply depending on the type of business visa you hold and the reasons for your absence.
The Immigration Rules on ILR applications say that if there are ‘excessive absences’ then, provided there are serious or compelling reasons, a Home Office case worker may exercise discretion and grant the ILR application. Home Office guidance on ILR and absences from the UK says that serious or compelling reasons can include:
- Your serious illness
- Bereavement
- The illness of a close relative
- A natural disaster
If you do need to ask the Home Office to exercise discretion on the one-hundred-and-eighty-day absence rule it is essential to provide evidence of the reason for your absence from the UK.
Whilst it may be self-evident to you that you were not able to travel, for example because of Covid-19, a Home Office caseworker will still need evidence. For example, a medical letter saying you were unfit to travel because of coronavirus or because of an underlying health condition or evidence of government-imposed travel restrictions that prevented you from returning to the UK as planned.
Applying for Indefinite Leave to Remain after entry on an innovator visa
Many entrepreneurs have entered the UK on an innovator visa or are interested in the business visa because of the opportunity for accelerated UK settlement. To apply for Indefinite Leave to Remain on an innovator visa you have to spend a minimum of three years in the UK. As the innovator visa was only introduced in 2019 the earliest you will be able to apply for ILR is March 2022. That may seem a long time away but business immigration solicitors caution about the need to understand the accelerated settlement rules for innovator visa holders. That’s because entrepreneurs need to plan ahead if settlement is a key goal.
An innovator holder applying for ILR requires endorsement by an endorsing body to shown how they have grown their business. To secure endorsement you must be actively managing and developing the business and your business must be:
- Registered at Companies House and you must be a director or a member.
- Currently trading and be able to continue to do so for at least the next twelve months.
The requirements don’t end there. Your business must also have met two of the following criteria:
- Had £50,000 of investment that has been spent on developing the business.
- Have doubled the number of customers in the last three years This number needs to be higher than the average business expansion for similar businesses.
- Made an application for IP protection in the UK.
- Made £1 million revenue in the last full year covered by accounts.
- Made £500,000 revenue in the last full year covered by accounts, with £100,000 of this revenue from exporting overseas.
- Created the equivalent of ten full-time jobs that have existed for twelve months. The jobs must have been filled by a British citizen, an EU national who was working for you before the end of free movement on the 31 December 2020 or someone with an ancestry visa or with Indefinite Leave to Remain or settled status.
- Created the equivalent of five full-time jobs that have existed for twelve months, with an average salary of £25,000 gross per year. The same rules apply in relation to the status of the employees.
Meeting two of the above criteria isn’t something that will happen overnight and that’s why business immigration solicitors recommend that accelerated settlement is planned and there is clear understanding of the specifics. For example, it would be frustrating if your annual employee salary falls just short of £25,000 gross a year because of you not being aware of the precise endorsement requirements to move from innovator visa status to Indefinite Leave to Remain.
Can you apply for British citizenship after UK entry on a business visa?
If you enter the UK on a business visa or work visa you will be able to apply for British citizenship if you meet the eligibility criteria, including the residence requirement. The length of the residence requirement depends on your relationship status rather than your business success.
If you get married or enter into a civil partnership with a British citizen, you will be eligible to make a British naturalisation application once you have secured Indefinite Leave to Remain and you have spent at least three years in the UK.
Different Immigration Rules apply if you entered the UK on a business visa or work visa but haven’t got married or entered a civil partnership with a British citizen. You are only eligible to apply for British citizenship after you have spent five years in the UK and held ILR status for twelve months.
If your priority is to secure British citizenship, then it is important that you are aware of the residence requirements for naturalisation as a British citizen. The residence requirements for British citizenship are:
- No absences for more than ninety days in the last twelve months before your British citizenship application.
- If you are married to or in a civil partnership with a British citizen then your total number of days absence from the UK for the three-year period should not exceed two hundred and seventy days.
- If you are not married to or in a civil partnership with a British citizen then your total number of day’s absence from the UK for the five-year period should not exceed four hundred and fifty days.
When it comes to UK settlement in the UK after entering on a business visa or work visa there are plenty of options but the Immigration Rules are such that it is best to be aware of residence requirements and other rules so you can plan ahead.
