We hear from Doyle Clayton partner Malini Skandachanmugarasan, a leading lawyer in the UK immigration space, on the various avenues available to overseas talent – and how the UK can make itself more attractive to investment and aspiring businesspeople from abroad.
Can you share some of the pathways available to talented entrepreneurs or businesspeople seeking a visa for immigration to the UK?
We tend to discuss the following categories:
Innovator Founder – This new category combined and replaced the Start Up and Innovator categories. It is designed for entrepreneurial talent looking to establish an “innovative, viable and scalable” business in the UK, where the individual has generated or significantly contributed to the idea.
The applicant must obtain an endorsement from a Home Office-approved endorsing body which assesses the prospective business against the “innovative, viable and scalable” criteria. As part of this, applicants must provide an original business plan showing how the business meets market needs, the skills held to set up and run the business, and scope for job creation in domestic and international markets. Applicants must also provide evidence showing they have access to sufficient funds to start the business in the UK. Successful individuals should be eligible for settlement after holding permission for a period of three years.
Global Talent – This category is not specifically for entrepreneurs, as all types of work arrangements are permitted. It can be used by highly skilled individuals who are leading or upcoming talents in the field of science, engineering, humanities, medicine, digital technology or arts and culture. There is another endorsement process with significant supporting evidence required demonstrating track records in innovation, recognition in their field of work, significant technical, commercial or entrepreneurial contribution, and/or exceptional ability by academic contributions. Depending on the type of applicant, the route to settlement can consist of a three- or five-year qualifying period of residence in the UK.
UK Expansion Worker – This category falls under the umbrella of the Global Business Mobility category, replacing the ‘Overseas Representative of a Business’ category (known as the Sole Representative). The route targets international businesspeople with a successful business overseas and wishing to expand in the UK by setting up a branch or subsidiary and temporarily assigning senior and specialist employees to commence operations. The relevant business must have minimal presence in the UK with no trading activities or operations having yet started.
Applicants are required to provide evidence of historical trading overseas and of their intentions for the UK business. This category is treated as a stepping stone for businesses to start operations in the UK so that they can then obtain a Skilled Worker sponsor licence, enabling them to employ overseas nationals. The temporary nature of this type of sponsorship, alongside the fact that it is not a route to indefinite leave to remain (settlement), makes this category a last resort option for experienced entrepreneurs.
Are there any significant obstacles to obtaining a visa that such an applicant should be aware of? How can these obstacles be prepared for and overcome?
The costs of going through the UK immigration process can be obstructively high for start-ups and newer entrepreneurs. Home Office fees are significantly higher than similar economies and there may also be minimum funds requirements individuals must satisfy. Additionally, many of the categories used by entrepreneurs do not have priority processing services and therefore processing can take a number of months. We recommend seeking early advice on suitable UK immigration categories, requirements and processes so that individuals can plan accordingly ahead of a move to the UK.
The costs of going through the UK immigration process can be obstructively high for start-ups and newer entrepreneurs.
The Home Office has grown more suspicious of fraudulent entrepreneurs and has sought to address this by introducing ‘genuine requirements’ as a part of decision-making. Application of this requirement varies significantly between caseworkers, meaning that applicants need to be prepared to frontload their applications from the outset. Ill-prepared applications that do not provide sufficient evidence are likely to result in an unnecessary refusal.
Once in the UK, new businesses and entrepreneurs can face time-consuming administrative and practical obstacles. Despite the process of registering a business being fairly straightforward, obtaining a UK bank account and individual and business registration with the UK tax authorities can be a long process, which affects how quickly the business can establish itself and start growing. Awareness of the relevant timeframes will help in the early stages of the business planning for the UK.
How have you seen the climate for business and entrepreneur-related immigration change during your time in practice? What can the UK government be doing to attract highly-skilled businesspeople?
The combination of Brexit ending free movement of EU nationals and significant changes to the Immigration Rules, making immigration routes more onerous and restrictive, has made the UK less attractive to international entrepreneurial talent.
Immigration is seen as a hot topic by politicians and the media. Over my years of practice, the perception of an immigrant has become increasingly misunderstood and negative. A prime example is the discussions on immigration in the lead-up to Brexit. Recent stances taken by UK governments could deter talent from moving to the UK where they face high visa fees, restrictive immigration conditions and administrative obstacles in establishing businesses. The Immigration Rules also change frequently, causing confusion to individuals who may have entered the UK under one category only for it no longer to exist by the time they qualify for settlement.
Nevertheless, the UK is still considered an attractive option for businesspeople. With a high-spending consumer market and multicultural, highly talented individuals in addition to the language, geographical position and funding environment for start-ups and new businesses, it is understandable why the UK is considered a business-friendly country. The interest from the international business community is clear, but the UK immigration requirements can be a major obstacle deterring exciting and creative individuals and business from setting up here.
UK immigration policy is constantly evolving. Given the effects of more recent changes for businesspeople and entrepreneurs, we need to consider ways to make the UK an attractive place to incentivise talented individuals to relocate, invest and work here.
This could be through making existing categories more wide-reaching to the range of talent covering numerous sectors (without a focus on digital technology) and introducing clearer information regarding the eligibility criteria and process for categories, such as the Global Talent and Innovator Founder categories. The UK could also build on its connections with other countries by introducing easier routes to highly skilled individuals or entrepreneurs who have had their talent recognised through the grant of specific immigration permission in other jurisdictions.
From a practical perspective, there is an urgent need to introduce quicker processing times and priority services. Current processing times can be months-long, which simply does not align with the pathways of start-ups and new businesses. Consideration should also be given to whether the high visa costs, which can be crippling to start-ups and SMEs, and existing eligibility criteria for settlement and British citizenship align with the purpose of attracting and retaining exceptional individuals. Despite already having higher visa fees than many other economies, the government’s intention to increase visa costs across the board by 15% to 20% will only add to the existing impact of rising immigration costs and limit the ability of enthusiastic, innovative and gifted founders and entrepreneurs to consider the UK.
The UK has the fundamental structure of being a country of opportunity and growth to foreign-born talent and entrepreneurs. It needs to engage urgently with practitioners and the business community to ensure that a transparent and positive system is implemented to attract exceptional people from all sectors without bureaucratic hurdles.
Malini Skandachanmugarasan, Partner
One Crown Court, Cheapside, London, EC2V 6LR, UK
Tel: +44 02073 299090 | +44 07789 685534
Malini Skandachanmugarasan is a partner at Doyle Clayton and leads the firm’s personal and private client immigration practice. She is recognised as one of the UK’s leading immigration lawyers, advising both organisations and individuals, specialising in UK immigration law, nationality law and European law. Her expertise enables her to service clients ranging from global corporates and innovative tech leaders to families, overstayers and those seeking protection in the UK. She is individually ranked in legal directories and is described by peers as being ‘at the top of her game and one to watch in the market’.
Doyle Clayton offers legal and advisory support to clients on issues arising in the workplace and provides realistic and effective solutions on employment, immigration and corporate and commercial law issues. It has experience in dealing with most sectors and industries in the UK and its clients include start-ups, SMEs, family-owned businesses, multinational corporates and private individuals. As a result, it can use its substantial experience and industry expertise to advise businesses and individuals on a range of employment, UK immigration and corporate law issues.