What you need to know about employing foreign nationals or helping a foreign national to set up business in the UK (Part 2)
In the first of a two-part series of articles on employing foreign nationals or helping a foreign national to set up business in the UK, we look at the rules governing foreign nationals who want to come here to worked in paid employment. In Part 2, we look at setting up a business in the UK, securing a business visa to explore opportunities and how to challenge decisions refusing foreign nationals entry to the UK or permission to remain.
Setting up a business in the UK
EEA nationals do not need permission to come to the UK to set up a business. However, non-EEA nationals do and will need to obtain one of two types of visa:
· tier 1 investor - persons with significant wealth who are willing to invest in UK businesses; or
· tier 1 entrepreneur– entrepreneurs who want to set up and run a business in the UK.
The requirements for each vary. An investor visa will only be granted if you have at least £2 million available to invest in UK registered companies or UK government bonds. An entrepreneur visa will only be granted to those who have a minimum of £50,000 from specified sources or £200,000 available to start their business.
There are other requirements and the length of time for which a visa will initially be granted is three years and four months.
Non-EEA nationals may also be able to come to the UK on a prospective entrepreneur visa to try to secure funding for a new business and to make other arrangements to try to get it off the ground. To apply for this type of visa, you will need to provide evidence of the potential funding source(s).
Business visitor visa
Visas are available for non-EEA nationals to visit the UK for business activities, such as attending conferences and interviews, negotiating deals, signing contracts and carrying out site visits. To qualify for a business visitor visa, you must:
· not be paid to work by a UK source;
· be able to show that you have sufficient funds for your stay and onwards journey; and
· provide proof of business activities.
As the visa is only intended to cover short business trips it can only extend for a maximum of six months.
How to challenge a decision
If you wish to employ or work with a non-EEA national but they have been refused a work visa or an entrepreneur or investor visa, the first step to challenge this decision is to apply for an administrative review. The timescales for this are tight and vary depending on whether you applied for the visa in the UK or abroad. The Home Office checks the decision for errors.
Other than in the rare case where there is a human rights dimension, there is no longer a right to appeal to the Immigration Tribunal against refusal of a visa. If the administrative review did not achieve the desired result and a fresh application is unlikely to help, the only other avenue is to apply to the Upper Tribunal (Immigration and Asylum Chamber) for judicial review.
If you wish to challenge a decision relating to an application for a business visitor visa, the Home Office may agree to reconsider the decision. If not, the only formal process to challenge the decision is to apply for judicial review.
EEA nationals are able to appeal to the First Tribunal (Immigration and Asylum) Chamber against decisions on residency. Non-EEA nationals however, may ask the Home Office to use its discretion to reconsider the decision. Failing that, judicial review is the only avenue available.
Conclusion
Employers falling foul of the rules on employing non-EEA nationals may face a raft of serious civil and criminal sanctions. Since December 2016, the Home Office can apply to the courts to close down a business for a year if it believes it is employing foreign nationals unlawfully.
It is also a criminal offence for an individual to work unlawfully in the UK. The penalty can be imprisonment or a fine, and earnings may be seized as proceeds of crime. A person who outstays their visa and refuses to leave voluntarily ultimately risks being deported and banned for up to 10 years from being granted a visa.
For advice on employing foreign nationals or helping a foreign national set up a business in the UK, or any other employment law matter, please contact us.