Working in the UK
Category: Business in Great Britain
So you want to live and work in the UK? Here is just an overview of some of the key issues:
Registration of a Representative Office in the UK
Every physical and legal person present on the territory of the UK must be accredited: for a legal entity this means, at a minimum, registration of a representative office.
Criteria for Being Present in the UK: If a company incorporated in one of the FSU countries (or one of its affiliates which was not itself incorporated in the UK) has a physical location in the UK, then it must register within a month of being here. A ‘physical location’ is either a place with an indication (e.g., a sign on the door) that the FSU company can be contacted there, or somewhere without such indication but where the FSU company ‘habitually conducts business’.
Two Types of Accreditation (Registration): The UK offers two accreditation regimes for foreign companies (in part as a consequence of EU harmonization rules):
▼ Place of Business Registration: If business decisions are/will not be made in the UK, then a place of business (PoB) registration is required. If the FSU company is opening a pure representative office, then PoB registration is appropriate.
▼ Branch Registration: If business decisions are or will be made from the UK location, a branch registration is required.
Registration Procedures: The registration process is straightforward and is mainly a matter of filing appropriate documentation together with the application and filing fee.
▼ PoB registration: The FSU company needs to file: a completed Form BR1; a certified copy of its constitutional documents; a certified translation of the constitutional documents into English (if they are not already in English); and a L20 filing fee.
Branch registration: The FSU company needs to file a completed Form 691; a certified copy of its constitutional documents; a certified translation of the constitutional documents into English (if they are not already in English); if the FSU company is required to publish accounts by law of its jurisdiction, a copy of the latest published audited accounts; if accounts are required and are not already in English, a certified translation into English; and a Ј20 filing fee.
Corporate Immigration
International relocation is a product of the times in which we live. A crucial but often underestimated dynamic in the relocation process is ensuring full compliance with the relevant Immigration Law. The current global security situation has heightened its importance. Employing a foreign national without a valid right to work in the UK is now a criminal offence, rigorously enforced by authorities. In the paragraphs which follow, I analyse various key factors to be taken into account in relocating to the UK.
The Rights of EEA Nationals
Nationals of the European Economic Area (EEA) benefit from freedom of movement throughout member states. This enables every EEA national to enjoy the right to take paid employment in any member state subject to certain administrative formalities. The newly enlarged European Economic Area comprises the following countries: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Spain and Sweden. For eight of the 10 recent entrants to the EEA in May 2004, Malta and Cyprus being the exceptions, there are certain additional administrative formalities that need to be fulfilled. Additionally, nationals of Switzerland do not require permission to work in the UK.
Other nationalities, which do not benefit from a long-term right to enter, remain and work in the UK will all need to apply for prior relevant immigration status permitting them to do so.
The Work Permit Scheme
Common to most countries, the UK has a work permit scheme to benefit UK employers. Under this scheme, a UK-based employer may apply to employ a foreign national in the UK provided that the foreign national satisfies certain minimum standards in terms of experience and abilities and the position is of a type suitable for the work permit scheme. Applications for work permits are administered in the UK by Work Permits UK under the auspices of the Home Office.
The speed of the process will depend on the type of application and specifically whether the position requires prior advertisement within the EEA. Once a work permit is issued, the foreign national applies for entry clearance to the UK as a work per mit holder. Once the work permit is approved, the spouse and in certain cases common law partner and financially dependant relatives may apply in parallel for entry clearance. Once such entry clearances are approved, the spouse, partner and dependent children will be able to work in the UK permit free.
The Sole Representative
An overseas company with no UK branch, subsidiary or other UK presence can send a non-EEA national to the UK to establish such a presence. The intention must be to establish a branch or wholly owned subsidiary of the overseas office within one year of the employee’s arrival in the UK. This category is suitable for senior employees who, on entry to the UK, would have authority to manage the day-to-day running of the business in the UK, to take senior-level management decisions and to negotiate on behalf of the overseas employer.
The application is made via the British Consulate overseas, for which a document setting out the overseas company’s business, its intentions for the UK and the status of the proposed sole representative will be required.
Once entry clearance is approved for the sole representative, any spouse (partner as above) and/or dependant relative will have a right to enter the UK in parallel. Sole representative status will be granted for an initial 12-month period. At the expiry of this period, provided certain criteria are fulfilled a three-year extension can be obtained.
The Investor Scheme
A foreign national can enter the UK as an investor on the following conditions:
▼ They have money of their own, under their control and disposable in the UK, amounting to no less than Ј1 million.
▼ They intend to invest not less than Ј750,000 in the UK by way of UK government bonds, share capital and loan capital in active and trading United Kingdom registered companies (with certain exceptions) and they intend to make the UK their main home. They would be required to maintain and accommodate themselves without recourse to public funds although this is generally not problematic with the investor category.
▼ Applications for investor status are made via the British Consulate overseas. Once this status is approved, the spouse (partner as above) and dependant relatives of the investor will be able to seek parallel leave to enter the UK. Once in the UK, the investor will not be able to take employment but can be self employed. Investor status is granted for an initial period of 12 months and thereafter, upon fulfilling relevant criteria, will be extended for a further three years.
Highly Skilled Migrant Programme
High achieving individuals may make applications to enter the UK under the Highly Skilled Migrant Programme. In force since January 2002, the purpose of this scheme is to encourage exceptionally skilled foreign nationals to live and work in the UK. The scheme operates on the basis of a points system where the foreign national must “score” a minimum of 65 points across separate categories including:
▼ academic qualifications
▼ past earnings
▼ career achievements
▼ past senior level experience
▼ partner’s qualifications
The application for Highly Skilled Migrant status is administered by Work Permits (UK), the body which administers the work permit scheme. Unlike work permits, highly skilled migrant status is granted to individuals rather than companies. Therefore, a foreign national admitted under the Highly Skilled Migrant Programme can work for any UK company of their choice.
Setting up a business
A foreign national can enter the UK for the purposes of setting up a business provided that they have not less than Ј200,000 of their own money, under their control and disposable in the UK, and which they intend to invest in a UK business. They will also need to be actively involved full time in providing services to the business and the level of financial investment will be proportional to their shareholding. Ordinarily, they will have either a controlling or equal interest in any business. The business may be newly established or an existing business in which they are contributing a capital investment. Applications in this category are made to the local British Consulate who will require documents substantiating among other things, the nature of the business, the availability of funds and the ability of the individual to maintain and accommodate themselves in the UK. There should also be a genuine need for the investment and the services in the UK.
Once this status is issued, the foreign national may enter the UK in this capacity. The foreign national spouse and dependant children will be entitled to apply for and obtain parallel entry clearance.
Visitors/Business Visitors
Any foreign national entering the UK as a visitor will be forbidden from entering any form of employment during the course of his visit. A Visitor’s visa will be granted for a maximum period of six months and is non-extendable.
A Business Visitor will only be able to undertake certain specific tasks in the UK as part of his duties overseas. Generally, a Business Visitor will be forbidden from providing goods or services to a UK company for which he receives payment. Business Visitor visas are granted for a maximum of six months and are non-extendable. Both Visitors’ visas and Business Visitor visas can be obtained from the British Consulate/High Commission in the relevant country.
The above is a brief summary of the issues. Full compliance with UK immigration laws is essential in each case, and you are advised to take detailed legal advice.
JONATHAN CHAIMOVIC, Clyde & Co
Clyde & Co is an international law firm which provides a full range of legal services, including advice to clients on corporate immigration matters and on registering a corporate presence in the UK.