Employers face a number of challenges when transferring key skilled employees on international assignments from outside the EU to the UK.
Against the backdrop of changing and increasingly protectionist UK immigration policy, it is important to select the most appropriate entry route first time.
UKVI entry clearance figures show 40% of the 155,000 work visas issued in 2013 were short term (less than 1 year). With the closures of Tier 2 sub-categories, we can expect these figures to rise as employers seek alternative routes of entry for short term, non-EEA assignees.
Tier 2 route closures
Following the MAC Review of Tier 2 in January 2016, the Government has targeted the Tier 2 entry route with a view to streamlining the category.
This resulted in closure of two out of the three Tier 2 sub-categories: the Tier 2 (ICT – Skills Transfer) in autumn 2016 and the Tier 2 (ICT Short-Term Staff) category closes in April 2017.
Prior to the closures, employers had been able to utilise the ICT visa to bring overseas workers to the UK for up to 6 months. The purpose of the route was to enable these workers to gain new skills or experience in the UK to then take back with them to their home country, or for them to upskill and train UK-based workers before returning home.
The closures of the ICT sub-categories will impact employers’ talent management and recruitment strategies relating to overseas workers coming to the UK on assignment.
From April 2017, all ICT migrants must qualify under a single visa category, the Intra Company Transfer (ICT).
Importantly for employers, the minimum salary threshold for the streamlined ICT route is £41,500, whereas the Short-Term Staff threshold was £24,800. The only exception to this is the Graduate Trainee route.
If a specialist skilled worker is required to be transferred to the UK for an extended period, but with frequent trips outside of the UK, provided the salary requirements are met, it may be that the streamlined ICT route is suitable.
For employers looking to expedite the ICT application process, you may be eligible to apply for the Home Office’s Premium Customer Service, provided you:
- are a Tier 2 sponsor licence holder;
- have no civil penalties from UKVI in the past 3 years and have paid in full any penalties issued before that;
- have an A-rating in all tiers of licence; and
- have passed a compliance check, before or during the application process, to make sure you still qualify for an A-rating.
The service offers a full package of benefits and costs £25,000 a year for large organisations.
If a sponsor qualifies as a small or medium sized organisation, and has paid the lower sponsor licence fee, they can apply for the SME+ package which costs £8,000 a year.
You can apply for the service via the Sponsor Management System (SMS).
For example, in a recent matter we dealt with, an employee was transferring to the UK for 5 years from India, but in advance of the assignment they were also required to attend a critical audit here, schedule to last a matter of weeks. Had their employer obtained a Premium Service the ICT entry clearance would have been processed for her to commence her assignment. The only solution was to travel to the UK as a Business Visitor, then return to India to submit their entry clearance application.
Where non-EEA workers are required for a fixed, short term period, with the ICT route now limited, the Standard Visitor Visa may become more commonly used by employers to secure entry clearance.
Standard Visitor Visa for business-related activity
The Standard Visitor Visa has replaced a number of previous visitor visas including the Business Visitor Visa and Prospective Entrepreneur Visa.
It is issued outside the UK to non-EEA citizens who are subject to immigration control and require a visa to enter the UK.
Applicants will be required to comply with specific visa conditions during their stay. Breach of their conditions can compromise permission to stay or return.
Standard Visitor Visas are valid for up to 6 months (or 180 days) per visit, but holders may re-enter the UK multiple times during this period, which may satisfy employer requirements of an assignee.The current fee for a Standard Visitor Visa is £87.
Applications can be made up to three months before the intended date of travel. Although applications typically take 3 weeks – which employers may find too inflexible for their needs.
The restrictions and eligibility requirements for the visitor visa are however stringent, and those workers under a Standard Visitor visa are generally more limited in the activities they are permitted to undertake while in the UK.
Applications are taken on their own merit based on the individual circumstances of the employee and the nature/duration/purpose etc of their visit to the UK.
For example, visitor visa applicants will have to show as part of their application that they will be undertaking permissable business activity during their visit. This could include business activities such as buying or selling goods or services, promotional activities, negotiating or signing deals or contracts, attending meetings, events or conferences.
Applicants must also demonstrate within their application that they intend to stay for no longer than 6 months, and that they intend to leave the UK by the end of the visa period.
They must also show that they can fund themselves – and any dependants – without recourse to public funds. In addition, they must show they can meet the cost of the return trip. Typically applicants will demonstrate financial support from either their employer or their spouse.
To evidence these requirements, the application process requires specific supporting documentation to be submitted.
For business visitors, documents include: a valid travel document; a letter from the UK employer regarding your assignment in the UK with details of your employment, duration, your position, salary, and detail of when you are expected to resume work; confirmation and details regarding the purpose of your visit falling under ‘permissable activity’; evidence of your travel plans – ticket bookings, hotel bookings, itinerary; proof of legal residence; bank statements and evidence of financial support.
Activities not permitted on a Standard Visitor Visa
Under a Standard Visitor Visa, there are a number of prohibited activities which would constitute a breach of entry permission, for example holders:
- Are not permitted to set up base in the UK, you must intend to leave by the visa expiry date
- Are not permitted to charge for services or goods provided
- Must not marry or register a civil partnership in the UK, or give notice of same
- Must not access public funds
- Must not live in the UK for long periods through frequent visits
Applying to extend a Business Visitor Visa
If a business visitor visa was granted for less than six months, the holder may apply for an extension up to the maximum of six months.
There is an exception if the holder is an ‘Academic Visitor’ as they are entitled to stay in the UK for a maximum of 12 months.
If a business visitor visa holder stays in the UK beyond the visa expiry, they will be considered an ‘overstayer’, which has implications for future entry and settlement applications.
If an applicant needs to visit the UK regularly over a longer period, there are longer term visas available which last 2, 5 or 10 years, allowing the holder to stay for a maximum of 6 months on each visit.
Practical tips to securing short-term entry clearance
For employees transferring to the UK on a short-term basis for assignment, employers should:
- Assess applicant eligibility and suitability for short-term business entry routes
- Be aware of application processing times
- Keep in touch with parties as necessary to progress the application
- Ensure the correct visa has been endorsed before the individual travels to the UK
- Fully brief the individual on entry procedure once at the UK, with list of of required documentation to be presented on arrival into the UK
- Confirm in writing the terms and conditions attached to their visa status with particular focus on the obligations they have towards you as the employer and the applicant’s responsibility to advise the employer of any changes which could impact on their status
- Confirm in writing the date of the visa expiry and type of documents they should be collating in preparation for a visa extension
- Update their visa information within management system into an electronic monitoring system which tracks visa expiry dates, types of visa and all other relevant information which should be retained during the period of work in the UK
Business immigration & entry clearance
We are highly experienced legal advisers to employers of non-EU workers on entry clearance and visa options. If you have a specific immigration or mobility query, please get in touch.