The Home Office has confirmed that effective from 9AM on 11 April 2022, the Sole Representative visa route will be closed to new applicants.
Self Sponsorship is a good alternative to consider if you’re considering business opportunities within the UK. A UK Sponsor is not required and this can lead to permanent residency and British citizenship for yourself and your family.
On 4 June 2020, the Home Office introduced the ‘Genuineness Test to the Sole representative visa route, quite swiftly, and out-of-the-blue.
The new requirement means that now prospective applicants need to prove the genuineness of their overseas employment, overseas business activities and UK expansion plans – with hard evidence.
In early 2019, Home Office discontinued the Tier 1 (Entrepreneur) Visa for new applicants and replaced it with the Startup Visa and Innovator Visa. The eligibility criteria for startup and Innovator visas are notably stricter and more rigorous.
Specifically, applicants must be endorsed by an approved body and can only secure an endorsement if the business meets the criteria of ‘innovation, viability, and scalability’.
With these changes, there was an emerging concern from law-makers that certain applicants, who cannot meet the Startup and Innovator visa requirements, would use the a Representative of Overseas Business visa as an alternative route, for ineligible purposes.
The closure of the Tier 1 (Entrepreneur) Visa forced those who owned overseas businesses to establish themselves in the UK through alternative entry routes. This is a problem as, often, in small organisations, the ideal person to open up a branch office or subsidiary is a co-founder. These are the people who have the decision-making authority and knowledge of the business required under the Sole representative visa entry criteria. Unfortunately this does not take into account the specific and strict mandatory criteria that the Sole Representative must not be a majority shareholder (owner) of the overseas business.
In deciding the application, the Home Office will consider the representative’s seniority as an employee of the overseas business: their skills, knowledge and experience as well as the viability and scalability of the employing company’s business plans for setting up a UK enterprise.
The Home Office’s Genuineness test aims to:-
” Prevent an overseas business sending a representative to facilitate their entry to the UK when there is no genuine intention for them to establish a branch or subsidiary in the UK.”
The change in rules directly bestows on Home Office decision-makers the power to refuse any application they believe, on the balance of probabilities and (lack of) evidence provided, that the business and/or candidate have no genuine intention to set up a UK enterprise.
Applicants must provide evidence that the subsidiary or branch office has not been
“established solely for the purpose of facilitating the entry and stay of the applicant”.
It is a critical change, as it could allow decision-makers to reject applications based on subjective assumptions about the applicant or overseas business.
Whenever a sole representative visa applicant applies for entry clearance, the Home Office must be satisfied that the applicant meets all the required criteria to prove they have a ‘genuine intention’ and the ability to establish a presence for the overseas business in the UK. To assess this, the Home Office may ask for:
The Rules, including the Genuineness Test are designed to:
Additional documentation for proving ‘genuineness.’
Further to the Genuineness Test, the evidential burden on prospective sole representative applicants (and their overseas employing companies) has been increased.
The Home Office may further enquire or request more evidence in cases where:
Applicants who fall into any of the above categories should be prepared to submit information as and when requested by the Home Office, to support their case.
It is imperative to note that the guidance states these situations do not automatically indicate a lack of genuineness and should not be grounds for refusal in themselves. It also underlines that applicants should be given a reasonable opportunity to address any areas of concern before the application is refused.
Battle it with Legal Support
A Sole representative applicant’s “genuineness” has become a key element of the visa application and should not be overlooked.
The Immigration Rules require convincing evidence of intention and credibility that the company is deploying someone suitably qualified to set-up a genuine overseas branch or enterprise in the UK.
The criteria to be met can appear daunting, but are surely manageable with an immigration lawyer’s advice.
A Y & J Solicitors have been advising sole representative visa applicants step-by-step to ensure that the overseas business they represent meets the demanding criteria laid down by the Home Office.
The ‘Genuineness test’ helps the Home Office to monitor and ensure that the Sole Representative route is not being abused for illegitimate purposes and that the organisations sending Sole Representatives can genuinely flourish and subsist legally in the UK, with the support of their Representative. Incidentally, this test also provides some reassurance to overseas applicants for the visa, that they are indeed being hired by a genuine organisation with viable plans for their UK endeavours.
