Foreign tech firms face visa challenges

Tech companies based outside the UK face new challenges under the nation's new immigration system if they want to move specialist staff to Britain, according to a leading law firm.

David Sapsted

17 November 2020

In an online article, immigration specialists at Kingsley Napley says that many companies in the tech sector will be aware of the new immigration system coming into force on January 1, and 'skilled worker' visa category, which opens to applications on December 1.The article points that companies without a sponsor licence in the UK will need to apply for one in order to recruit both non-EU and EU citizens in future."However," Kingsley Napley says, "for international tech companies currently based outside the UK there are other considerations to take into account when you need to move specialist staff to the UK."For example, when applying for a sponsor licence it is necessary to first have a trading UK entity that can apply for the licence. It must also have at least one senior person based in the UK who can act as the Authorising Officer, the person in charge of the licence."Where a tech sector company wishes to set up in the UK this can lead to a ‘chicken and egg’ scenario of wanting to send someone to the UK to set up the UK operation but being unable to apply for a licence."The solution, the firm says, can be to submit a 'representative of an overseas business' application - also known as a sole representative application - whereby a senior level employee of the overseas group is sent to the UK to set up operations where there is currently not any UK corporate presence.Kingsley Napley adds: "The employee must not be a majority shareholder in the overseas company. Once that person can enter as a sole representative and set up the UK company, they can act as Authorising Officer and apply for the sponsor licence."From there, any staff of the group based outside the UK can transfer to the UK by way of a skilled worker or intra-company transfer (ICT) application under the new rules from December 1."The article says that international tech companies must be more "nimble" and must react to market conditions swifter than employers in other sectors when using the new immigration system."Whilst sole representative applications are useful," say the lawyers, "they are limited, as the name implies, to just one person transferring to the UK. For many tech organisations where highly specialist and niche skills and experience are required, this will be problematic and will not enable them to react quickly enough by the time the sponsor licence is obtained and skilled worker or ICT applications submitted."The UK immigration policy makers seem to be aware of the limitations of this route. In a potentially useful development for the tech sector, in addition to reviewing the ICT eligibility criteria and conditions, the Home Secretary (Priti Patel) has asked the Migration Advisory Committee (MAC) to look at the sole representative route and report back by the end of October 2021."Kingsley Napley says the MAC will consider new options to enable businesses based outside the UK to send a team of workers to the UK to establish a branch or subsidiary in the UK."The MAC will advise the government on the viability of those new routes for teams of workers and the eligibility criteria to include for example skill and salary thresholds for the members of the team as well as the sending organisation’s size, the value of the investment or contract and the potential for UK job creation," says the article.