If you are an overseas based company looking to ‘set up shop’ in the UK, by creating a subsidiary business or opening up a branch office, you may need a sole representative visa for your existing overseas based employee. This will allow them to gain UK entry clearance to enable them to start up your UK subsidiary or branch office. Here’s our guide for overseas companies on how to go about selecting your sole representative and applying for a sole representative visa.
- What is a sole representative visa?
- Who can apply for a sole representative visa?
- Business eligibility criteria for a sole representative visa
- What is the ‘centre of operations’ of your company?
- What activities can a sole representative visa holder perform?
- Can you appoint two sole representatives for your UK business?
- What documents are needed for a sole representative visa application?
- How much does a sole representative visa cost?
- How long can a sole representative stay in the UK for?
- Can a sole representative visa be extended?
- Can a sole representative bring dependants to the UK?
- Changed circumstances of the sole representative
- What happens if a sole representative visa is refused?
What is a sole representative visa?
A sole representative visa enables an overseas based company to send a senior employee to the UK to open a branch or subsidiary of the international business for the first time. This is achieved through the employee securing a sole representative visa. If you require support through the legal process, our business immigration solicitors are here to help.
There has been a lot of recent interest in the business immigration route of the sole representative visa because, with the end of free movement of EU nationals and goods, many EU companies are looking at the advantages of opening a business base in the UK, partially to gain the commercial advantages of not being in the EU whilst remaining geographically close to the EU. Prior to Brexit, international companies could send employees from the EU to open a UK branch of their business without their employee requiring entry clearance, a work visa or business visa. With the end of free movement for EU nationals and the introduction of the points-based immigration system both EU and non-EEA nationals now require a sole representative visa to come to the UK to set up a subsidiary company or branch office of the parent company.
There are only limited circumstances where an overseas based employee won’t need a sole representative visa to set up your UK venture. For example, if the person is currently working for your overseas company and is identified as having the skills to expand your business into the UK is:
- A UK citizen by birth or naturalisation.
- Has indefinite leave to remain in the UK.
- Is an EEA national with settled status or pre-settled status under the EU Settlement Scheme.
Business immigration solicitors say it’s important to note that both indefinite leave to remain and settled status can be lost if a person stays out of the UK beyond a specified period of time. This means if your overseas employee has this type of UK immigration status it is best to ascertain if they will require a visa or not and, if so, the best visa choice for their circumstances, such as a returning resident visa.
For more information on setting up a branch office or subsidiary in the UK read our article: Expanding your business into the UK: Legal requirements for EU businesses.
Who can apply for a sole representative visa?
When it comes to who can apply for a sole representative visa there are eligibility criteria for the individual senior employee chosen by the overseas company as well as company eligibility criteria. For more information read the Home Office guidance on the sole representative visa.
The immigration rules on the sole representative visa are contained in the Immigration Rules Appendix Representative of an Overseas Business. In summary, an individual applicant for a sole representative visa must be able to demonstrate that they:
- Were recruited and employed outside the UK by your overseas based company.
- Hold a senior employee position within your company and have full authority to make decisions on behalf of your company in respect of the new UK operation, including negotiating and taking operational decisions on behalf of the UK business.
- Must not have a majority stake in, or otherwise own or control, the overseas parent business, whether that ownership or control is by means of a shareholding, partnership agreement, sole proprietorship or any other arrangement.
- Have the skills, experience, knowledge and authority to represent the overseas business in the UK.
- Genuinely intend to work as a full-time sole representative of your company and not commit to any other employment or business in the UK.
- Must meet the English language requirement.
- Have enough money to support themselves (and any dependants) whilst in the UK without help from public funds.
Business eligibility criteria for a sole representative visa
If you are an overseas company wanting to send a sole representative to the UK, you must:
- Have an active and trading overseas business.
- Have no active branch, subsidiary or representative in the UK to represent the business.
- Genuinely intend to establish the company’s first registered branch office or a wholly owned subsidiary in the UK.
- Plan that your branch or subsidiary will trade in the same type of business as the overseas parent company.
- Not intend to establish the branch or subsidiary for the sole purpose of facilitating the entry of the sole representative.
- Be able to prove that your company is not based in the UK and is not only headquartered overseas but has its ‘centre of operations’ based overseas.
What is the ‘centre of operations’ of your company?
For your sole representative to be able to successfully apply for a sole representative visa they will need to be able to show that your company ‘centre of operations’ is based overseas.
The requirement for your company to be based overseas is not just to have an office labelled as ‘headquarters’ located outside the UK. Your company, as the overseas parent company, must have its main centre of operations outside of the UK. Just as importantly, there can be no plans for your overseas parent company to move your centre of operations to the UK.
With some sole representative applications, it is relatively straightforward to demonstrate that your company centre of operations is based overseas but in other situations it is more difficult. For example:
- If your company is digital, technical or financial in nature so doesn’t have a traditional factory or require a physical ‘headquarters’.
- Your employees are remote workers or home based.
- You only have a relatively small number of employees.
- Your chosen sole representative holds shares in the company – your sole representative won’t be eligible to apply for a sole representative visa if they hold more than fifty percent of the shares in your company or have a controlling interest. The combination of a sole representative holding shares or having an interest in the parent organisation plus a lack of obvious centre of operations may make Home Office officials look more closely at the sole representative visa application.
- Your chosen sole representative is a key individual and shareholder or controlling interest in the company and the individual is synonymous with the company.
- If none or just a small number of senior employees of your overseas parent company will remain employed abroad after the UK branch of the company is set up.
When the application for a sole representative visa is submitted to the Home Office it must include a statement from your company that confirms that the company centre of operations will remain based overseas.
What activities can a sole representative visa holder perform?
Setting up shop in the UK is a tremendous commitment on the part of your overseas parent company, so it is essential to know what activities your sole representative can perform whilst in the UK.
The sole representative can:
- Work for your overseas parent company in the UK on a full-time basis.
- Be accompanied to the UK by their family or ‘dependants’.
- Apply for an extension to the initial sole representative visa.
- Apply to settle in the UK (by applying for Indefinite Leave to Remain) after they have been living in the UK for five years on a sole representative visa/s.
What can’t you do as a sole representative visa holder?
Unsurprisingly, there are also immigration rules setting out what a sole representative of your parent company can’t do whilst in the UK on a sole representative visa. A sole representative cannot:
- Become self-employed and work for themselves on either a full time or part time basis or set up a different business.
- Represent an additional company whilst in the UK.
- Change job and leave the employment of your overseas parent company and find a new employer in the UK. This restriction also prevents part-time employment with another employer.
- Unless specific rules apply, continue to live in the UK if they (or you) terminate their employment as the sole representative of your overseas parent company.
- Receive UK public funds.
- Apply to switch to a sole representative visa whilst in the UK on a different type of visa, such as a skilled worker visa.
Can you appoint two sole representatives for your UK business?
It isn’t unusual for an overseas company to want to send two sole representatives to the UK to set up a branch office or subsidiary company. The two senior employees may have complimentary skills and be able to secure the success of the new venture far more quickly than just sending one senior representative.
However, the immigration rules are clear that when it comes to a sole representative, you can only have the one person. If your company wants to send two people then, once the subsidiary or branch is set up, they could look at other visa options for the second employee. For example, securing a Home Office sponsor licence and sponsoring the second employee under a skilled worker visa.
Looking ahead to expanding from a sole representative to employing overseas workers in the UK? Take a look at our article on applying for a sponsor licence: Sponsor licence: Guidance for employers.
What documents are needed for a sole representative visa application?
The documents needed for a sole representative application fall into two categories:
- Company information and supporting documents.
- Individual information and documents from the sole representative visa applicant.
Particular care has to be taken with the sole representative application if the selected sole representative is also a shareholder in the overseas parent company (or has an interest in the organisation) in cases where there is no obvious overseas ‘centre of operations’ because of the nature of your business.
Your company will need to provide the following information and paperwork:
- A letter stating that it is your plan to establish either a wholly owned subsidiary company in the UK or the opening up and registration of a branch in the UK. The new business in the UK must be the same business activity as that undertaken by your overseas parent company.
- A business plan for the new UK venture. The business plan needs to have enough detail in it to show that the UK expansion plans are genuine and thought through. The paperwork needs to say that your UK sole representative will have the delegated authority to make UK decisions.
- Documents about your company finances such as details of assets held, accounts and shareholdings for the current year and preceding year.
- The job description, employment and planned salary of your UK sole representative.
Information about the overseas parent company should include:
- The selected sole representative’s previous role in your company (if relevant).
- How your company plans to maintain its overseas centre of operations if the sole representative held a crucial role at the overseas company headquarters. For example, your recruitment or re-organisation plans so that your centre of operations can continue to successfully operate from overseas despite the UK relocation of your sole representative.
- The number of senior employees or managers of your company who will be based at your overseas centre of operations.
- If the sole representative is well known as synonymous with your company and its success how you will maintain the company centre of operations overseas.
- Whether the sole representative holds shares in your overseas parent company and, if so, the extent of their shareholding or control in your company or organisation together with details of the shareholders or business owners who remain based outside overseas at the ‘centre of operations’ of the company.
Much of the company information can be presented in a focussed business plan for your new UK branch and a strategic plan for the continued operation of the overseas centre of operations.
In addition to your company information, your sole representative applicant will need to provide the Home Office with:
- Their passport and any alternate/additional travel identification.
- Passport-sized colour photograph.
- Paperwork to show they can support themselves (and dependant family) so they don’t need recourse to public funds during their stay in the UK.
- The contract of employment as sole representative or letter from your company setting out their employment terms and salary. If your sole representative is already an employee of your company, wage slips or bank statements should be enough.
- Information about proposed accommodation in the UK.
- Documents to show they meet the English language requirement.
How much does a sole representative visa cost?
A sole representative visa costs £610 if the applicant applies from outside the UK. The fees are different if the applicant is applying from within the UK. In addition, the applicant will need to pay more if your company wants the sole representative visa application prioritised by the Home Office to get a quick decision on the application.
In addition to the sole representative fee, you will also need to pay a ‘healthcare surcharge’ as part of the sole representative application process. The cost of the healthcare surcharge is £624 per year for a sole representative applicant. That means if your sole representative is granted a three-year visa, the healthcare surcharge may amount to around £1,872. If your sole representative is going to be accompanied to the UK by their dependants, the Home Office will also levy the healthcare surcharge on their dependants.
The exact amount that your sole representative must pay in healthcare surcharge depends not just on the length of their visa but also immigration rules such as:
- Half of the yearly amount of the healthcare surcharge is payable if the application includes part of a year that is less than six months.
- The whole year of healthcare surcharge is payable if the sole representative application includes part of a year that is more than six months.
The Home Office has produced a healthcare surcharge calculator that can be accessed online.
It is important to get the healthcare surcharge fee right as if your sole representative doesn’t get the fee right or doesn’t pay the fee then their application will be refused by the Home Office.
The healthcare surcharge fee must be paid at the time of the application and if the fee is not paid, or if you pay the wrong amount, you have seven working days to pay. The seven days run from the date of notification by the Home Office of a requirement to pay the fee if your sole representative is in the UK (or ten working days if they are outside the UK at the time of their application). Failing to pay the healthcare surcharge in the Home Office timescale means the sole representative application will be refused, so it is best to check the fees.
If the company pays too much in healthcare surcharge fees because the sole representative visa is granted for a shorter period than requested, the Home Office will automatically give a partial refund of the healthcare surcharge.
For more information on the immigration health surcharge read our article: The immigration health surcharge: how does it work?
How long can a sole representative stay in the UK for?
A sole representative can stay in the UK for a period of three years on the grant of a first sole representative visa. As an overseas company, you will be concerned that three years does not give long enough to successfully set up a new venture in the UK. Most businesses want continuity and don’t want to have to replace their sole representative after three years when the visa runs out. There are visa options to resolve this.
Can a sole representative visa be extended?
There should be no worries about business continuity as the immigration rules allow a sole representative visa holder to apply to the Home Office to extend their sole representative visa.
The immigration rules say that:
- A sole representative can apply to extend their visa for a period of up to two years provided they still meet the general eligibility criteria.
- A sole representative can then apply for another extension/s to their sole representative visa.
- After five years in the UK, your sole representative could potentially apply for Indefinite Leave to Remain in the UK. If granted Indefinite Leave to Remain then this, in turn, could lead to a British naturalisation application and the securing of British citizenship. If your sole representative secures Indefinite Leave to Remain or British citizenship this won’t affect their employment with your parent company, although it would make it easier for them to change employer or set up in business on their own behalf. For more general information on settling in the UK read our article: Business visa to UK settlement: what are your options?
The likelihood is that you will want to support your sole representative to apply for an extension to the sole representative visa so that they can continue to work towards setting up a successful and profitable branch or subsidiary company in the UK. The immigration rules set out specific criteria that you, as the overseas parent company, and your sole representative must meet in order to qualify for a sole representative visa extension, namely:
- Your sole representative must still be in the employment of your overseas parent company and must still be working to establish the company’s branch or subsidiary company in the UK and be able to demonstrate some progress in those goals.
- Your overseas parent company centre of operations and headquarters must still be located outside the UK.
Can a sole representative bring dependants to the UK?
A sole representative can bring dependants to the UK. The immigration rules say that dependant family members are:
- The husband, wife, civil partner or unmarried partner (including same sex unmarried partner) of your sole representative.
- Dependent children.
A sole representative can only bring a dependant family member with them to the UK if they can demonstrate that they can financially provide for them and accommodate them without recourse to public funds. As your sole representative will be a senior employee of your overseas parent company, there isn’t likely to be a concern about meeting this financial requirement, but your sole representative will need to be able to prove they can meet this immigration rule.
June 2020 immigration rule amendments to the sole representative eligibility criteria state that a majority owner of your overseas company cannot apply to enter the UK on a dependant visa as the spouse, civil partner, unmarried or same-sex partner of a sole representative of the business in which they hold a majority shareholding or control of the organisation. This amendment was made to prevent overseas business owners employing their spouse as the sole representative to circumvent the immigration rules.
For more information on bringing dependants to the UK read our article: Dependant visas: can you bring your family on a UK business visa?
Changed circumstances of the sole representative
It isn’t unusual for a sole representative’s circumstances to change. The immigration rules set out whether parent companies can substitute the sole representative or change their role within the company. This means that your company is then able to work under a new senior employee in the UK who is thought to have more skills to push the set-up of the branch or subsidiary company.
The immigration rules say:
- If the employment of a sole representative is terminated by the overseas parent company or they resign then you can apply to replace the sole representative with another existing employee, provided you haven’t found premises or started trading in the UK. If you have done so then your new sole representative may be able to apply for a skilled worker visa.
- If your company appoints a more senior employee to work in the UK branch of the company, then your sole representative won’t be eligible to apply for a sole representative visa extension as they won’t meet the sole representative visa renewal criteria. They may however be able to apply for a skilled worker visa if the company can secure a sponsor licence and sponsor their employment under a work visa.
What happens if a sole representative visa is refused?
If an application for a sole representative visa is refused, then there is no right of appeal against the Home Office decision. However, if you think that the Home Office has made an error in considering the sole representative application, for example, misunderstanding the supporting company documents, then the visa applicant can apply for an administrative review of the Home Office’s refusal to grant the sole representative visa or extension application. For general information on business visa refusal take a look at our article: Business visa refusal: what’s next?