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The Sole Representative of an Oversea Business category is for individuals who are employed by a business outside of the UK who are being sent to the UK by their employer for the purpose of opening and operating a branch or subsidiary of the same business in the UK. In this article we will look at the requirement to be recruited outside of the UK.
What is the requirement to be recruited outside the UK?
Paragraph 144(i) states that:
The requirements to be met by a person seeking leave to enter the United Kingdom as a representative of an overseas business are that he:
(i) has been recruited and taken on as an employee outside the United Kingdom of a business which has its headquarters and principal place of business outside the United Kingdom;
A basic reading of this requirement seems simple enough, that the person must have been already recruited by the company for the role of setting up the branch in the UK and that this should have taken place outside of the UK.
The rules do not specify how the individual should be recruited for the position.
The Home Office guidance on the category states that they expect a Sole Representative to have:
- been employed by the parent company in a senior job role within the company;
- a track record of setting up branches for other companies, if they have been employed specifically to undertake this role;
- authority to take operational decisions once in the UK, as indicated by their role in the company hierarchy
The Home Office guidance goes on to state:
Sole representatives must have been employed by the company directly at the point at which initial entry clearance is applied for.
The only requirement therefore is that they have been employed by the company outside of the UK for whom they are going to work within the UK.
The Rules require that the person is senior within the business and that, in the event that they have been recruited specifically for this role rather than having been someone who has been employed in the business in other capacities first, they have some experience in setting up branches. Again, there is no specific requirement to show that any type of recruitment has taken place.
How does the Home Office interpret this?
We have seen a number of recent cases where the Home Office have been looking in more detail at how the person has been recruited, and this can be the subject of an interview.
The Home Office have, in some cases, been reading a requirement into the rules that to be recruited outside of the UK requires that a specific recruitment process has been undertaken. As set out above, there is no such requirement in the rules for the selection of the candidate to come to the UK, to take place in any particular way. If the Home Office refuse an application on this basis, there may be grounds to challenge the decision by way of an Administrative Review or Judicial Review.
Where relevant, applicants might also consider providing information about how they were chosen to take on the role of setting up the UK entity with the application. This may assist in avoiding an interview taking place, which can cause an unnecessary delay to the application.
Contact Our Business Immigration Barristers
For expert advice and assistance regarding an application for entry clearance, leave to remain or settlement as a Sole Representative of an Overseas Business, contact our business immigration barristers on 0203 617 9173 or complete our enquiry form below.