On 14 May 2020, the Home Office released a Statement of Changes to the Immigration Rules. Although most were positive steps, one visa category has seen its criteria tighten up; the Representative of an Overseas Business Visa (ROBV) from 4 June 2020.
Why has the Home Office decided to strengthen the criteria for a visa that over the past few years has seen a decline in applicants? Most experienced immigration solicitors have long expected this entry route, which has relatively simple eligibility criteria, to be amended - more on this below. But first, let’s reiterate the current ROBV requirements.
A ROBV provides businesses with the flexibility of researching the UK market before committing to sending a larger team. It also allows the Representative to scope out commercial opportunities and build critical business relationships with suppliers and potential clients/customers.
To qualify, your organisation will need to provide a notarised statement which states:
The employee will need to show they:
A Sole Representative can stay in the UK for up to five years.
A ROBV lasts for three years. It can be extended, providing the applicant and their company meets the following conditions:
Documents showing the UK business structure of the branch office or subsidiary you have set up, accounts, branch registration or incorporation documents, your salary and working hours over the 12 months leading up to the renewal application will need to be provided.
Your company will also need to certify you are required to remain in the country to oversee the UK business.
You must show that you have obeyed the terms of the Sole Representative Visa over the past three years. Applications will be refused if you engage in a non-permitted activity such as:
Once your extension has been approved, you can stay in the UK for two more years. If you have family members with you, for example, your spouse or partner and children under 18 years, they can apply to extend their dependent visa at the same time.
On 5 July 2019, the government closed the Tier 1 Entrepreneur Visa to new applicants and replaced it with the Startup Visa and Innovator Visa. The eligibility criteria for the latter are stricter. Applicants must be endorsed by an approved body who judge, on the evidence presented, whether the business meets the criteria of innovation, viability, and scalability.
There has been growing concern that some applicants who cannot meet the Startup or Innovator Visa criteria have been using the ROBV to enter the UK. For some time, the Home Office has been reading in a prerequisite of ‘genuineness’ into the ROBV requirements. Immigration lawyers have successfully challenged attempts to do this as the requirement of genuineness does not appear in the Immigration Rules.
The fact is that the closing of the Tier 1 Entrepreneur Visa forced those who owned overseas entities and wanted to establish themselves in the UK to find alternative entry routes. Often, especially in small organisations, the ideal person to open up a branch office or subsidiary is a co-founder as these are the people that have the decision-making authority and knowledge of the business required under the ROBV entry criteria.
However, on 4 June 2020, it will be harder to obtain a ROBV.
The Statement of Changes has introduced a genuineness test:
“An amendment is being made 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.”
This will allow decision-makers to turn away people if they suspect that setting up a branch or subsidiary in Britain is not the main intention for the ROBV application.
From 4 June 2020, applicants must also prove that the subsidiary or branch office has not been “established solely for the purpose of facilitating the entry and stay of the applicant”.
Finally, applicants will not be able to transfer the majority of shares to their partner or spouse who will accompany them to Britain. People might have done this if they had too many shares to meet the requirement of the ROBV. Now in such a situation, most applicants will need to apply for an Innovator Visa.
The genuineness test is the most important change as it allows decision-makers to refuse subjectively, protected by executive judgment. It is seldom that the Courts will interfere with such rulings.
This point was illustrated in the recent case of R (on the application of Karagul & Ors) v Secretary of State for the Home Department  EWHC 3208 the Court ruled:
“The context in which the evaluative assessments are to be undertaken by the Secretary of State gives her a wide margin of appreciation as to the merits and feasibility of proposed businesses and whether they meet the paragraph 21 requirements. Specifically, it would be in a rare and extreme case that a court on judicial review would second-guess an overall assessment by the Secretary of State that an application failed on the merits.”
By introducing a subjective ‘genuineness’ criteria, many more ROBV applications will inevitably be refused. Given that the British government is determined to send a clear message that the UK is open for business, this seems like the Home Office is cutting off its nose to spite its face. By ‘capturing’ the tiny number of non-genuine ROBV applicants, it risks closing the door to many independent, family-owned, and/or smaller organisations who could add an enormous amount of value and investment to the country. And given that the government is determined to push through with ending the Brexit transition period on 31 December 2020, new businesses and investment is something the country can ill-afford to turn away.
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