WRK2.2 Representatives of overseas businesses with no branch, subsidiary or other representative in the UK (came into force on 1 Oct 2009)
This is internal guidance for use by entry clearance staff on the handling of for visa applications made outside the United Kingdom (UK) for representatives of overseas businesses with no branch, subsidiary or other representative in the UK (came into force on 1 Oct 2009). It is alive document under constant review and is for information only.
On this page
- WRK2.2.1 Who can apply under this category?
- WRK2.2.2 What are the key points for this category?
- WRK2.2.3 Which rules do I need to assess a sole representative?
- WRK2.2.5 What are the main requirements as a sole representative?
- WRK2.2.6 How do I assess the 'parent company'?
- WRK2.2.7 What is the main role of the parent company in a sole representative application?
- WRK2.2.8 What about 'branches'?
- WRK2.2.9 How do I assess the sole representative work arrangement?
- WRK2.2.10 Can sole representatives be shareholders?
- WRK2.2.11 Can a sole representative be replaced by someone else?
- WRK2.2.12 Change of circumstances
- WRK2.2.13 Concession for certain sole representatives who intend spending 'less than nine months' in the UK in the first year
- WRK2.2.14 What are the English language requirements for this category?
- WRK2.2.15 Do I need to make a referral to the UK Border Agency to assess these applications?
- WRK2.2.16 What is the endorsement for 'sole representatives'?
- WRK2.2.17 What appeal rights does this category attract?
- WRK2.2.18 What are the rules for dependants of sole representatives?
- WRK2.2.19 What is the endorsement for dependants of sole representatives?
- WRK2.2.20 What are the rules for unmarried and same sex partners of a sole representative?
- WRK2.2.21 What appeal rights do dependants have?
- WRK2.2.22 What are the rules for representative of an overseas media business with no established presence in the UK?
- WRK2.2.23 Who can be considered as an overseas media representative?
- WRK2.2.24 What are the English language requirements for representatives of an overseas media business?
- WRK2.2.25 What if the overseas media representative has a UK based sponsor?
- WRK2.2.26 Can representatives of overseas media businesses enter the UK as business visitors?
- WRK2.2.27 What is the entry clearance endorsement?
- WRK2.2.28 Which rules apply to dependants of representatives of overseas media businesses?
- WRK2.2.29 Which endorsement do I give to qualified dependants of representatives of an overseas media business?
- WRK2.2.30 Which rules apply to unmarried or same-sex couples?
WRK2.2.1 Who can apply under this category?
Changes to the Immigration Rules, which came into force on 1 October 2009, created a category of overseas worker: 'Representative of an overseas business'.
This includes:
- Sole representatives coming to the UK to establish a branch of an overseas business (WRK2.2.3 - 2.2.21); and
- Representatives of overseas media businesses with no established presence in the UK (WRK2.2.22 - 2.2.30).
The changes in policy bring sole representatives and representatives of overseas media businesses in line with 'representatives of overseas businesses'. Applicants now have to meet the Tier 2 English language requirements.
WRK2.2.2 What are the key points for this category?
- Entry Clearance is mandatory - representatives of overseas media businesses may qualify as business visitors if coming to the UK for less than 6 months.
- Dependants, including unmarried partners, can accompany the main migrant granted leave under this category.
- This category can lead to settlement.
- Initial leave to enter is granted for 3 years.
- The English language requirement needs to be met. (See WRK 2.2.14)
- This category is outside the points-based system.
- This category attracts a full right of appeal *
* see below on any dependant's right of appeal.
WRK2.2.3 Which rules do I need to assess a sole representative?
Requirements for entry clearance: Paragraphs 144 - 145
WRK2.2.5 What are the main requirements as a sole representative?
The sole representative must have been recruited outside the United Kingdom and joined the parent company abroad. He / she is likely to be someone who has been employed by the parent company for some time and holds a senior position there.
If the sole representative is not an existing employee, or has been employed for a short time only, then he / she must be able to demonstrate a good track record in the same or in a closely related field, in order to show that the reasons for his / her appointment are compelling.
Sole representatives must, in the first instance, be employed by the overseas firm direct (although they may later be employed by the United Kingdom subsidiary). Agents who are hired to market the company's product here are normally self-employed and provide their services for a fee. Such people cannot therefore qualify as sole representatives. Nor can sales representatives or others such as buyers who fulfil a single function only. However, senior sales staff who have other responsibilities such as marketing and distribution are not debarred from qualifying as sole representatives.
Sole representatives may be offered a remuneration package consisting of a basic salary and commission. This is acceptable as long as the salary element is sufficient to support the applicant and his / her family without recourse to public funds.
WRK2.2.6 How do I assess the 'parent company'?
You should seek to establish that the parent company is a genuine commercial enterprise. This is to be judged in the round, taking into account the length of time that the company has been established, its turnover, profitability and number of employees. It must be the intention that the business remains centred abroad. This does not mean, however, that we must refuse an otherwise sound application because of evidence of an intention to make the branch here flourish so vigorously that it might, at some time in the longer term, overshadow its parent company. Companies which have been trading for less than twelve months should be required to justify the need to establish an overseas branch in the UK.
WRK2.2.7 What is the main role of the parent company in a sole representative application?
The parent company must be sending the sole representative to the United Kingdom in order that he / she establishes a commercial presence for the company here in the form either of a registered branch or of a wholly-owned subsidiary.
WRK2.2.8 What about 'branches'?
A 'branch' is a part of a company which is organised so as to conduct business on behalf of the company. This means that a person will be able to deal direct with the branch here, instead of the company in its home state. Every overseas company setting up a branch in the United Kingdom must apply to register with Companies House within one month of having opened the branch.
A wholly-owned subsidiary will be a separate corporate body and is not subject to these registration requirements, being treated in the same way as any other company incorporated in the United Kingdom.
The branch which the worker will establish must be concerned with the same type of business as the sending business, that is, the UK branch should be concerned with the supply of a similar product or service as the sending business. This requirement is not, however, intended to prevent a business which is, for example, concerned with the manufacture of a product establishing a UK branch which will be concerned with the sale of servicing of that product.
WRK2.2.9 How do I assess the sole representative work arrangement?
The applicant is required to provide a document detailing the terms and conditions of the employment. The importance of the position should be reflected in the salary and other benefits.
We would expect a sole representative to be vested with the authority to take the majority of decisions locally, but it would be unreasonable to expect him to take unilateral decisions on all matters.
Sole representatives are required to work full-time as such but it is not necessary to link this to a set number of hours per week. The main consideration is that the parent firm should be paying a 'full-time' salary (that is, sufficient for the sole representative to support and accommodate himself / herself and any dependants without taking other work or resorting to public funds).
Sole representatives are expected to base themselves in the United Kingdom and to spend a minimum of 9 months of the year in the UK. However, it is possible to approve applications from those who intend to spend less time in the UK provided that the additional absences are essential to the running of the United Kingdom business, for example if the United Kingdom office is to be the centre of European operations (see also the 'less than 9 months in first year' concession paragraph below).
Applicants who intend to spend less than 4 months of the year in the United Kingdom are unlikely to satisfy us that they are making genuine efforts to establish a commercial presence here. Such persons should be advised to apply instead as business visitors (VAT11) and their applications considered under the relevant paragraph of the Rules.
Under the previous Rules, a sole representative could seek UK Border Agency approval to take other work in addition to his / her sole representative duties, including acting as representative of another overseas firm. Under the present Rules this is not permissible and could be allowed only outside the Rules on a discretionary basis in exceptional circumstances. Such applications must be referred to the Referred Cases Unit (RCU) using the appropriate proforma. Relevant documents should be attached.
WRK2.2.10 Can sole representatives be shareholders?
Majority shareholders in the parent company are not eligible for entry as sole representatives.
When the sole representative is a major shareholder in the parent company, care must be taken to establish that the arrangement is not one devised simply to circumvent the more rigorous requirements of the business rules. As a rule of thumb, shareholdings in excess of 30 per cent should attract detailed scrutiny. If it is evident that the applicant, as well as being a major shareholder, is also the driving force behind the parent company such that his / her presence in the United Kingdom is likely to mean that the centre of operations has shifted to this country, the application should be refused.
The factors to be weighed in deciding this include:
- the size of the applicant's shareholding;
- his / her position within the firm;
- the number of senior employees who will remain abroad; and
- the extent to which the company's success seems linked to the applicant's specific talents and performance.
WRK2.2.11 Can a sole representative be replaced by someone else?
Where a sole representative arrangement is terminated by either party, and the overseas business wishes to replace the worker with another existing overseas employee, it may be appropriate for an application to made under the points-based system, that is, if the UK branch is established and can be registered as a sponsor for the purposes of sponsoring a Tier 2 worker.
However, if the sole representative arrangement ends at an early stage, (for example, before the United Kingdom company has found premises or started to trade) a replacement sole representative may be agreed.
It may also be appropriate to agree to a sole representative as a successor to the type of representative described in the 'less than 9 months in first year' concession paragraph (below) because the latter has not been able at the time of the handover to establish a fully operating branch in the United Kingdom.
WRK2.2.12 Change of circumstances
A sole representative given leave to complete 5 years in the UK in the category may remain in the UK as such even if the overseas company appoints a superior, and will qualify for indefinite leave to remain as long as he / she continues to fill a genuine vacancy and the company wishes to retain his / her services. However, a sole representative in the UK with less leave should be refused an extension as such if a superior has been appointed. In such circumstances permission to work under PBS will be required.
WRK2.2.13 Concession for certain sole representatives who intend spending 'less than nine months' in the UK in the first year
Exceptionally, entry clearance may be granted to applicants who in all other respects meet the qualifying criteria for sole representatives except that they expect to spend considerably less than 9 months here in the first year and that they and their families will remain based abroad.
Typically, such applicants will be established, full-time senior employees of the parent company who will continue to work overseas on other projects but who have also been given responsibility for setting up a limited operation in the United Kingdom to test the market. Such applicants should be considered as sole representatives only if they do not qualify as business visitors (for exampe, because they intend to spend more than 6 months in the UK or engage in productive work such as consultancy). The maximum period allowed in this category is 12 months.
WRK2.2.14 What are the English language requirements for this category?
The English language requirement for a sole representative is found under para 144 which says
(vi) has competence in the English language to the required standard on the basis that
(a) paragraphs 2(b) or (c) of Appendix B of these Rules applies to the person, or
(b) the person is competent in the English language to a basic user standard, including the ability to understand and use familiar everyday expressions, to introduce himself and others and to ask and answer questions about basic personal details, and
(1) provides an original English language test certificate from an English language test provider approved by the Secretary of State for these purposes, which clearly shows the applicant's name, the qualification obtained (which must meet or exceed the level that the Secretary of State specifies in the guidance as being required to meet the standard described above) and the date of the award, or
(2) has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor?s degree in the UK, and
(i) provides the specified evidence to show he has the qualification, and
(ii) UK NARIC has confirmed that the qualification was taught or researched in English to level C1 of the Council of Europe's Common European Framework for Language learning or above, or
(3) has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet or exceed the recognised standard of a Bachelor's or Master's degree in the UK, and provides the specified evidence to show that:
(i) he has the qualification, and
(ii) the qualification was taught or researched in English,
WRK2.2.15 Do I need to make a referral to the UK Border Agency to assess these applications?
You should ask the applicant to provide the supporting evidence listed in the standard letter:
Letter to enquirers about the sole representative requirements (a copy can be downloaded under 'Related documents' on the right of this page).
Cases may be decided locally. However difficult or complex cases can still be referred to ECCCAT using the usual referrals / deferrals process.
WRK2.2.16 What is the endorsement for 'sole representatives'?
Entry clearances in this category should be endorsed:
'EMPLOYMENT: SOLE REPRESENTATIVE'. LTE 3 years CODE 4.
Relevant foreign nationals who are granted entry clearance for longer than six months should be required to register with the police. See ECB16 Police registration for guidance on police registration.
WRK2.2.17 What appeal rights does this category attract?
Refusal of entry clearance as a 'sole representative' attracts a full right of appeal.
WRK2.2.18 What are the rules for dependants of sole representatives?
Spouses / civil partners (Paragraphs 194-196F) and dependant children of a sole representative (Paragraphs 197-199)
Prior entry clearance is mandatory.
WRK2.2.19 What is the endorsement for dependants of sole representatives?
Entry clearances should be endorsed:
'D: ACCOMPANYING/JOINING WIFE/HUSBAND/ PARENTS'. Code 1
for a period normally equal to, but in any event not in excess of that granted to the spouse/parent.
Relevant foreign nationals who are granted leave to enter for longer than six months should be required to register with the police. See ECB16 Police registration for guidance on police registration.
WRK2.2.20 What are the rules for unmarried and same sex partners of a sole representative?
Unmarried or same-sex partners of a sole representative (Paragraph 295J).
Prior Entry Clearance is mandatory.
WRK2.2.21 What appeal rights do dependants have?
Refusal of entry clearance as the dependant of a Sole Representative attracts a full right of appeal, except where the principal applicant has themselves had their application for entry clearance refused.
WRK2.2.22 What are the rules for representative of an overseas media business with no established presence in the UK?
Paragraph 144 -145 of the rules applies.
Prior entry clearance is mandatory.
WRK2.2.23 Who can be considered as an overseas media representative?
The main category of applicant will normally be journalists.
Employees of media businesses other than journalists may be considered as representatives of a media business, for example, producers, news cameramen and presenters. However, secretaries and other administrative staff are not considered overseas media representatives and therefore must apply under PBS.
Representatives of overseas media businesses need not be the sole representative of the media business in the UK. However, a representative of a business that is not a media business is still required to be the sole representative of that business.
WRK2.2.24 What are the English language requirements for representatives of an overseas media business?
The English language requirement for a sole representative is as that for a Tier 2 migrant and the relevant instructions should be consulted.
Tier 2 (General): English language
WRK2.2.25 What if the overseas media representative has a UK based sponsor?
Overseas media representatives who do have a sponsor based in the UK may choose to apply under the old skilled worker route (VAF 2) or the points-based system.
However, ECOs should note that both routes operate in parallel and applying in one category does not exclude the applicant from consideration in the other. So if they apply under PBS and fail to meet those requirements they must then be assessed against the requirements of paragraphs 144-145.
Assuming they meet those requirements it should be noted in the events field on Proviso and entry clearance issued in line with this guidance. In those circumstances applicants should not be required to make another application. Applications must only be refused where applicants fail to meet the requirements of either category.
WRK2.2.26 Can representatives of overseas media businesses enter the UK as business visitors?
ECOs should note that applicants wishing to enter the UK for shorter assignments, that is, for up to 6 months should apply as business visitors under paragraph 46G. See VAT11 Business Visitors.
WRK2.2.27 What is the entry clearance endorsement?
CAT D: For employment with [Name of news organisation], Code 4, LTE 3 years.
Relevant foreign nationals who are granted entry clearance for longer than 6 months are required to register with the police. See ECB16 Police registration for guidance on police registration.
WRK2.2.28 Which rules apply to dependants of representatives of overseas media businesses?
Spouses /civil partners (paragraphs 194-196F) and dependant children of a media representative (paragraphs 197-199F)
Prior entry clearance is mandatory.
WRK2.2.29 Which endorsement do I give to qualified dependants of representatives of an overseas media business?
Entry clearances should be endorsed 'D: ACCOMPANYING/JOINING WIFE/HUSBAND/ PARENTS'. Code 1 for a period normally equal to, but in any event not in excess of that granted to the spouse/parent.
Relevant foreign nationals who are granted leave to enter for longer than six months should be required to register with the police. See ECB16 Police registration for guidance on police registration.
WRK2.2.30 Which rules apply to unmarried or same-sex couples?
Unmarried or same-sex partners of a media representative (paragraph 295J).
Prior entry clearance is mandatory.
Related documents
- Letter to enquirers about sole representative requirementsPDF 110KB opens in a new window