Corporate Immigration 2014

Transcription

1 The International Comparative Legal Guide to: Corporate Immigration st Edition A practical cross-border insight into corporate immigration law Published by Global Legal Group, with contributions from: Allen & Overy LLP Barrios & Fuentes, Abogados BartLAW Canadian Immigration Barristers and Solicitors Bener Law Office Bloomfield Advocates & Solicitors Chris Watters Attorneys Enrique Arellano Rincón Abogados, S.C. Fredrikson & Byron P.A. Gherson Gjika & Associates Attorneys at Law Godoy Cordoba Abogados Gorrissen Federspiel Karl Waheed Avocats Kingsley Napley LLP Klasko Immigration and Nationality Law Kyriakides Georgopoulos Law Firm Lenz & Staehelin Lexial M/Advocates of Law Nakai Immigration Services LPC Oberhammer Rechtsanwalt GmbH PwC Legal SRL Scornik Gerstein LLP

2 The International Comparative Legal Guide to: Corporate Immigration 2014 General Chapters: 1 How the UK Outsourced Immigration Nick Rollason, Kingsley Napley LLP 1 Contributing Editor Nick Rollason, Kingsley Napley LLP Head of Business Development Dror Levy Account Directors Antony Dine, Florjan Osmani Senior Account Managers Maria Lopez, Oliver Smith, Rory Smith Sales Support Manager Toni Wyatt Sub Editor Nicholas Catlin Senior Editor Suzie Levy Group Consulting Editor Alan Falach Group Publisher Richard Firth Published by Global Legal Group Ltd. 59 Tanner Street London SE1 3PL, UK Tel: Fax: info@glgroup.co.uk URL: GLG Cover Design F&F Studio Design GLG Cover Image Source istockphoto Printed by Information Press Ltd August 2014 Copyright 2014 Global Legal Group Ltd. All rights reserved No photocopying ISBN ISSN Strategic Partners 2 An Overview of the Immigration Act 2014 Neil Paterson, Gherson 6 Country Question and Answer Chapters: 3 Albania Gjika & Associates Attorneys at Law: Evis Jani & Krisela Qirushi 11 4 Argentina PwC Legal SRL: Pedro Luis de la Fuente 18 5 Austria Oberhammer Rechtsanwalt GmbH: Ewald Oberhammer & Petra Pardatscher 24 6 Belgium Lexial: Emmanuel Ruchat 32 7 Canada BartLAW Canadian Immigration Barristers and Solicitors: Jacqueline R. Bart & Carrie A. Wright 36 8 China Fredrikson & Byron P.A.: Laura Danielson & Zhu June Cheng 44 9 Colombia Godoy Cordoba Abogados: Rodrigo Tannus Serrano & Marcela Trujillo Villa Denmark Gorrissen Federspiel: Jacob Sand & Nina Kuhlmann Clausen France Karl Waheed Avocats: Karl Waheed Germany Allen & Overy LLP: Dr. Hans-Peter Löw Greece Kyriakides Georgopoulos Law Firm: Effie G. Mitsopoulou & Maria E. Alourda Japan Nakai Immigration Services LPC: Masahito Nakai Mexico Enrique Arellano Rincón Abogados, S.C.: Enrique J. Arellano Nigeria Bloomfield Advocates & Solicitors: Olamide Soetan Peru Barrios & Fuentes, Abogados: Ariel Orrego-Villacorta Icochea & Evangelina Camborda Cruz South Africa Chris Watters Attorneys: Chris Watters Spain Scornik Gerstein LLP: Antonio Arenas Switzerland Lenz & Staehelin: Rayan Houdrouge & Matthias Oertle Turkey Bener Law Office: Maria Lianides Celebi UAE M/Advocates of Law: Yann Mrazek Kingsley Napley LLP: Nick Rollason & Ilda de Sousa USA Klasko Immigration and Nationality Law: William A. Stock 148 Further copies of this book and others in the series can be ordered from the publisher. Please call Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

3 Chapter 23 Nick Rollason Kingsley Napley LLP Ilda de Sousa 1 Introduction 1.1 What are the main sources of immigration law in the? The main sources of UK immigration law are: primary legislation (including the Immigration Act 1971 and subsequent Acts of Parliament); delegated legislation (known as Statutory Instruments or Regulations) which implement primary legislation; and the UK Immigration Rules which set out in detail the ways in which individuals can qualify to obtain entry clearance (a visa), leave to remain (residence) and indefinite leave to remain (permanent residence) in the UK. The Home Office, which administers the immigration system for UK visas and immigration, also publishes extensive policy guidance on how the rules should be interpreted and implemented by Home Office caseworkers. 1.2 What authorities administer the corporate immigration system in the? The corporate immigration system is administered by the Home Office. This is divided into two operational entities: UK Visas & Immigration (UKVI), which decides on applications for leave to enter, leave to remain, indefinite leave to remain and citizenship; and Immigration Enforcement, which is concerned with enforcement. 1.3 Is the part of a multilateral agreement between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries for employment purposes? The is a member of the European Union ( EU ) having joined in The UK gives effect to the rights of EU citizens from the 28 EU Member States and their family members to move freely, contained in the Treaty on the Functioning of the European Union ( TFEU ) and in Directive 2004/38 (the Citizenship Directive), and the decisions of the European Court of Justice ( CJEU ). Under the EEA agreement, these rights are also broadly extended to citizens of Norway, Iceland, Liechtenstein and Switzerland. The Treaty and relevant delegated legislation provide for the right of entry and residence for EU nationals coming as work-seekers, workers, self-employed persons, service providers, self-sufficient students or self-sufficient persons. EU nationals do not require permission to work or reside in the UK and can enter and start work without any specific authorisation. Restrictions currently exist on citizens from Croatia who require work authorisation. Non-EU family members of EU citizens, including spouses, civil partners, durable partners and children up to the age of 21 can accompany the EU citizen, reside and have a right to work as long as the main EU national qualifies for a right of residence as a worker, self-employed or self-sufficient. Children over the age of 21 and parents can also benefit from the right to reside and work where they are dependent on the EU citizen. Directive 2004/38 also provides for the right of permanent residence for EU citizens and their family members who have resided in another EU Member State for a continuous period of five years. Non-EU family members wishing to move to the UK with their spouses can obtain multiple entry visas (known as EEA family permits) which are free of charge and are valid for six months. They can then apply for five-year Residence Cards in the UK which are granted on proof that the EU citizen is exercising their free movement rights through employment, self-employment or selfsufficiency. Like all EU Member States, the UK is required to implement the decisions of the European Court of Justice which clarify the TFEU or specific EU Directives or Regulations. In the field of corporate immigration, and in particular the right to provide services within the EU, the UK implements the decision of the CJEU in Vander Elst (and subsequent CJEU case law), which clarified that the rights of EU companies to send non-eu national employees to provide services within the EU could not be made subject to a prior work permit requirement or indeed a certain prior period of employment before the employee can be sent as a service provider. The UK will issue visas for those non-eu nationals who are lawfully resident and employed by EU companies in the EU, and who are coming to the UK for a temporary period to provide services. It is important to note that the UK is not part of the Schengen area and that visas obtained for the UK are not valid for entry into the Schengen Area, a visa-free area with no internal border controls made up of 22 EU Member States and four additional European countries. In addition, the UK does not participate in many of the EU-wide legislative programmes in the field of immigration, including the Blue Card regime and the Long Residence Directive. The UK s opt-out from the EU legislation in this area means that it can choose whether it wishes to take part in any new initiatives in this area. So far it has generally chosen to opt out of most measures other than those on asylum. The UK has also stated that it will opt out of the Intra Company Transfer ( ICT ) Directive, which will govern the conditions for the entry and residence of intra-company transferees and their family members and the movement of these people between EU Member States once they have been admitted. 136

4 2 Business Visitors 2.1 Can business visitors enter the under a relevant visa waiver programme? The UK operates a visa waiver system through a designated list of nationals who require a visa. The current list of nationals who require a visa to the is set out in Appendix 1 of the Immigration Rules. In 2014, the UK introduced a new Electronic Visa Waiver document ( EVW ) which exempts citizens of Oman, Qatar and the United Arab Emirates from obtaining a visa where they have filed an Electronic Visa Waiver document request and obtained the EVW. 2.2 What is the maximum period for which business visitors can enter the? Business visitors can be admitted for up to six months. In practice, where a business visitor arrives at a UK airport and seeks entry to undertake business visitor activities, they will be granted six months entry (known as leave to enter ) with a prohibition on employment, even where they are only requesting entry for two weeks. Visas granted to visa nationals are also granted for six months and are usually multiple-entry. In practice, immigration officers will only normally admit visitors seeking to come for short periods consistent with their ongoing employment abroad. Requests to stay in the UK as a business visitor for several months will attract greater scrutiny both at the visa and entry stage. As business visitors are not permitted to base themselves in the UK, immigration officers will scrutinise visa and entry requests for frequent visitors more carefully and ask additional questions at the border. Where a person is likely to exceed six months out of the last 12 months in the UK as a visitor, this may lead to refusal of entry. 2.3 What activities are business visitors able to undertake? There are a wide range of activities which business visitors can undertake in the UK, subject to the caveat that a business visitor must not take employment, produce goods or provide services within the UK or intend to live in the UK for extended periods of frequent or successive visits. The Immigration Rules set out the permitted activities which business visitors can undertake, which include: attending meetings, conferences and interviews arranged before arrival; attending board meetings as a board-level director; attending trade fairs where they are not directly selling; arranging deals and negotiating or signing trade agreements or contracts; undertaking fact-finding missions; and conducting site visits. 2.4 Are there any special visitor categories which will enable business visitors to undertake work or provide services for a temporary period? There are a number of specific categories which allow individuals to provide temporary services including: Those working as a driver or tour group courier on international routes delivering goods or passengers from abroad. Speaking at one-off, non-commercial and non profit-making conferences. Representing foreign manufacturers by installing, debugging or enhancing software, servicing or repairing products within the guarantee period, and erecting and installing foreignmade machinery. Being briefed on the requirements of a UK customer, as long as it does not involve in-depth business user analysis. Acting as an interpreter or translator for visiting business people. Taking part in a location shoot as a member of a film crew (actor, producer, director or technician) employed by an overseas production company when coming to the UK, for location sequences only. Journalists, correspondents, producers or cameramen working for international news media companies. Academic visitors under a sabbatical or exchange programme. Visiting professors. Secondees coming to the UK on behalf of the company which has been contracted directly by a UK company to provide services. Those coming to undertake preaching or pastor work as a religious worker. Those coming as advisors, consultants, internal auditors, trainers or troubleshooters to the UK branch of the same group of companies. Those undertaking specific one-off training on techniques and work practices in the UK. In addition to the above categories, the UK also introduced a new category of Permitted Paid Engagements ( PPE ) within the business visitor rules which allow individuals to come for up to one month and be paid for their work in the UK. The PPE route includes: Examiners or assessors coming to examine students or participate in selection panels. Lecturers giving a one-off or short series of paid lectures at UK higher education institutions or research or arts organisations. Overseas-designated air pilot examiners coming to assess UK-based pilots. Qualified lawyers invited to provide advocacy for the purposes of a court or tribunal hearing, arbitration or other form of alternative dispute resolution for UK legal proceedings. Professional artists, entertainers and sportspersons invited by UK arts or sports organisations or broadcasters based in the UK. 2.5 Can business visitors receive short-term training? Business visitors can undertake one-off training where it is either: provided in-house by a UK company in the same group of companies as the applicant s overseas employer; related to a product or service supplied by a UK company, or corporate training delivered by an outside company provided to overseas and UK employees of the same group of companies; or corporate training directly linked to the employee s employment overseas and delivered by a UK company that is not part of the individual employer s group of companies and whose principal business is not to provide training. Training must typically be classroom-based and/or involve familiarisation or observation. 137

5 3 Immigration Compliance and Illegal Working 3.1 Do the national authorities in the operate a system of compliance inspections of employers who regularly employ foreign nationals? All UK employers, including those that are registered as Tier 2 licensed sponsors of non-eu national migrant workers, are required to comply with UK laws on the prevention of illegal working. UK employers that are registered as Tier 2 sponsors have additional compliance duties as sponsors and are subject to periodic visits from the Home Office, both announced and unannounced, to ensure that they are complying with their sponsor duties and with current legislation on the prevention of illegal working. The Home Office also undertakes significant enforcement operations in industries which are perceived to be high-risk, where illegal migrants may be more likely to be employed. The inspections are undertaken by enforcement teams often acting on intelligence. 3.2 What are the rules on the prevention of illegal working? Employers are required to ensure that, before the start of any employment, they check that an individual is entitled to work in the UK. An employer must check specified documents such as passports or other combinations of documents and retain copies of these. If these documents are checked, copied and retained in the correct way, the employer will have a statutory excuse against liability for a civil penalty for illegal working, as long as they did not know that the individual was not entitled to work. Comprehensive guidance is issued to assist employers to comply with their duties and to ensure that they do not discriminate in the checking process. In certain limited circumstances, employers are required to obtain a Positive Verification Notice from the Home Office Employer Checking Service before the employee can start work. Employers are also required to carry out follow-up checks for employees with limited permission to stay in the UK. These are conducted at the expiry of their current visa or leave to remain. 3.3 What are the penalties for organisations found to be employing foreign nationals without permission to work? There are two types of penalties for illegal working. The first is a civil penalty of a maximum of 20,000 payable for each employee found to be working without permission in the. The level of the penalty is determined according to the circumstance of the case, and a statutory code of practice sets out guidelines to decide how much the penalty will be. Employers may object to any civil penalty issued and appeal to a court against the penalty on the grounds that they are not the employer, that they have a statutory excuse (through undertaking the required document checks), or that the level of the penalty is too high (for example, where the employer has assisted with identifying an instance of illegal working and assisted the Home Office with their enquiries). The Home Office publishes regional lists of employers who have received civil penalties. In addition to the civil penalty regime, there is a separate criminal offence of knowingly employing an illegal worker. Liability extends not only to the employer but also to individuals within the employer s organisation, including managers and those responsible for the recruitment of employees. An employer found guilty of this offence may be liable to imprisonment for up to two years and an unlimited fine, or both. Employers that are registered as sponsors under Tier 2 of the Points Based System may also have the sponsor licence revoked or downgraded. Revocation will mean that the employer is unable to continue sponsoring existing sponsored employees. Downgrading will also make the process of further sponsorship of non-eu employees much more complex. 4 Corporate Immigration General 4.1 Is there a system for registration of employers who wish to hire foreign nationals? Since November 2008 with the introduction of the Points Based System, all UK employers wishing to sponsor non-eu employees must first register under the main Tier 2 sponsor category. Organisations wishing to register as licensed sponsors must apply to the Home Office by submitting an online application, paying the relevant fee (depending on the size of the organisation) and submitting the relevant corporate documents to show that the business is active and trading in the and, where relevant, holds the appropriate regulatory authorisations or accreditations. The UK employer must appoint a UK-based Authorising Officer who will act as the person responsible for compliance with the sponsor duties. When applying, the organisation will request the number of unrestricted Certificates of Sponsorship which it requires in the coming year (April to April) to sponsor non-eu nationals. Employers can apply to register as sponsor under the Tier 2 (General) category, which covers new hires, and the Tier 2 (Intra Company Transfer) category, which covers employees being transferred to the within a group of international companies or organisations. Employers operating in the creative, sporting or religious sectors may also register under the Tier 5 category. The supporting documents submitted with the application will include such documents as the organisation s last filed financial statements, evidence of appropriate employer s liability insurance, evidence of registration with the UK tax authorities, bank statements, rental agreements or tenancies in relation to business premises and any other specified documents that relate to the specific industry that the organisation operates in. There are different documentary requirements for different types of businesses operating in different sectors. For businesses which have been trading for less than 18 months, the application to become a sponsor will usually involve an initial Home Office visit to check the organisation s ability to comply with its sponsor duties. Applications are assessed on eligibility criteria which aim to verify that the entity applying is genuine and has an operating or trading presence in the UK, and on suitability criteria, which assess whether the employer has HR and recruitment systems which will enable them to meet their sponsor duties, that there are no previous immigration-related criminal convictions, and that there is no previous non-compliance. Once the application is approved, the sponsor licence will be granted for an initial period of four years. Sponsors are awarded an A-rating unless the Home Office has identified an issue which needs to be resolved through an action plan, in which case they will be B-rated. All A-rated sponsors can apply to register for Premium Customer Service or SME+ for an additional annual fee. The employer will be given access to the online Sponsor Management System ( SMS ). Access to the SMS can be given to the employer s representatives. The employer and their representatives then have the ability to access the system and assign a Certificate of 138

6 Sponsorship, in compliance with the current Home Office guidance eligibility criteria, to an individual whom they wish to sponsor in one of the relevant categories. The Certificate of Sponsorship is an electronic document which is assigned to an individual to undertake a specific role in the UK sponsor organisation. Unrestricted Certificates of Sponsorship are allocated when the licence is first obtained, and at the start of each subsequent year. They will be available for sponsoring employees under the Intra Company Transfer route, for those prospective employees who are in the UK and who can switch into Tier 2 (General) as new hires, and for high earners who will be earning more than 153,500 per annum. These can be assigned without the need to obtain separate work authorisation from the Home Office. It is part of the employer s role as a sponsor to ensure that each certificate is issued in accordance with the guidelines. Restricted Certificates of Sponsorship are allocated under the Tier 2 (General) category to new hires through a monthly allocation process operated by the Home Office. 4.2 Do employers who hire foreign nationals have ongoing duties to ensure immigration compliance? UK employers registered as licensed sponsors must ensure that they comply with their duties as sponsors, including the following: Record-keeping ensuring that they keep records of documents confirming the employee s right to work, the sponsor employee s contact details, and specified documents relating to the employee s employment in the UK. Reporting duties employers are required to report certain information to the Home Office using the Sponsor Management System within specified time limits. This includes reporting sponsored employees non-attendance, early termination of employment, change of visa status or corporate changes such as the location of the UK office or ownership of the business through a merger or acquisition. Changes to the employment such as changes in job titles/duties, significant salary increases and other specified changes. Complying with the law this includes assigning Certificates of Sponsorship for genuinely vacant roles which meet the minimum skills and income thresholds, ensuring that the employee is legally entitled to do the job and has the correct registration and professional accreditations, and complying with UK employment law or other regulations. Co-operation this includes allowing the Home Office to visit the employer s premises for the purpose of a compliance check and following any action plan for improvement set by the Home Office following any compliance visit. number of HR files for sponsored employees to ensure that preemployment documents checks have been undertaken, the correct documents are kept on the HR file, and that any changes in relation to sponsored employees have been reported. The visiting officers will also normally ask to interview at least one member of staff who is sponsored to ensure that they are complying with the terms of their Certificate of Sponsorship. Where serious issues of noncompliance are identified, the Home Office may revoke or suspend the licence or downgrade the sponsor s rating and put an Action Plan in place to remedy any non-compliance within a specified time frame. 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign nationals? The Home Office maintains a list of Standard Occupational Classification ( SOC ) codes for skilled workers. These codes are regularly updated. The codes set out the relevant occupations which are skilled to NQF Level 6, which is the minimum skill level under which individuals can be sponsored in the UK. Each occupation has a specific code with a description of the typical activities and duties related to the occupation, together with possible job titles. Each occupation specifies the minimum salary which must be paid to the individual undertaking the role. The salary rates are normally divided between new entrant salary rates, applicable to those who have graduated from a UK university and who are switching into the Tier 2 (General) category, and other experienced worker rates. The SOC codes as at July 2014 include 88 occupation codes at the NQF Level 6 skills level. In addition, certain lower skilled jobs at NQF Level 4 in the creative sector which are designated as creative can also be sponsored. 4.5 Is there a recognition that some occupations may be in short supply and do special exemptions apply to certain sectors and occupations? The Home Office maintains a list of shortage occupations which is updated regularly through consultation with the Migration Advisory Committee which advises the government and which considers submissions from employers, organisations, industry bodies and government departments on the availabilities of skills in the UK workforce. Where an occupation is included in the shortage occupation list, the employer will not need to undertake advertising or a Resident Labour Market Test (see section 9 below) in relation to that role. The Home Office also maintains a list of PhD occupations for which there are reduced requirements to undertake resident labour market testing through advertising. 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign nationals, to verify immigration compliance? Compliance visits are undertaken by the Home Office for businesses applying to register as licensed sponsors where those business have been trading for less than 18 months. In addition, a compliance visit can be undertaken at any time while the UK employer holds a sponsor licence. These visits can be undertaken by arrangement with the employer or can be carried out on an unannounced basis. Where an employer is extending their sponsor licence after four years, this will often trigger a visit from the Home Office. The compliance visit will normally involve an immigration official meeting the Authorising Officer responsible for overseeing immigration compliance within the UK employer, and checking a 4.6 Are there annual quotas for different types of employment-related work permits or visas? There is currently an annual limit of 20,700 Certificates of Sponsorship under the Tier 2 (General) restricted category which covers new hires being hired from outside the who are paid less than 153,500. In addition, there are a number of other numerical limitations on some categories including the two-year Tier 5 (Youth Mobility Scheme) visas for nationals of Australia, Canada, New Zealand, Hong Kong, Republic of Korea, Taiwan, Japan, and Monaco. Finally, Tier 1 (Exceptional Talent) visas for those who are internationally recognised leaders or emerging leaders in science, humanities, engineering, medicine, digital technology and the arts are limited to 1,000 per year divided between the respective categories. 139

7 4.7 Are employees who are sponsored to work in the United Kingdom required to demonstrate language proficiency? 6 Investment or Establishment Work Permits Employees who are sponsored to work for UK employers as new hires are required to demonstrate that they are proficient in the English language to Level B1 on the CEFR (intermediate). Employees being transferred to the UK under the Tier 2 (Intra Company Transfer) route do not need to meet this requirement either for the initial application or for the extension application. Any employee who is eligible to apply for indefinite leave to remain (permanent residence) at the end of a period of five years sponsored employment in the UK will be required to demonstrate proficiency at B1 CEFR level. 4.8 Are employees who are sponsored to work in the United Kingdom required to undergo medical examinations before being admitted? The UK does not require general medical examinations from all applicants coming to take up sponsored employment in the UK. However, where the individual is applying for their entry clearance (a visa) in a specified country, they will be required to undertake a TB test at a designated TB clinic. 4.9 Does the work permit system allow employees who hold work permits to be seconded to a client site? Sponsored employees may be seconded to a client site where the UK employer has a contract to provide a time-bound service or project where a specific service is being provided to the end user client. The UK employer must retain responsibility for managing the employee including the employee s duties, functions and outcomes/outputs. The current rules do not allow the provision of staff only to other organisations. 5 Highly Skilled Visas 5.1 Is there an immigration category which covers highly skilled individuals? The UK s Tier 1 (General) visa category, which awarded points to potential migrants based on academic qualifications and previous earnings, was closed in December The only category which now exists is the Tier 1 (Exceptional Talent) visa for those who have been officially endorsed as an internationally recognised leader or emerging leader in their field in science, humanities, engineering, medicine, digital technology or the arts. Applications for endorsements are first considered by relevant endorsing bodies such as the Arts Council, the Royal Academy, Tech City and the Royal Society. There are specific eligibility in assessment criteria for endorsement, depending on each endorsing body. Endorsement in the arts and sciences can be given to those who have demonstrated promise in their chosen field. The criteria for endorsement in the Exceptional Talent route is extremely high. There is a quota of 1,000 Tier 1 (Exceptional Talent) visas issued per year divided between each of the endorsing groups. 6.1 Is there an immigration category which permits employees to be authorised to work based on investment into your jurisdiction? There is no specific employer-based visa category which permits an individual to be authorised to work in the UK based on investment. However, there are a number of categories which enable companies to establish subsidiaries in the UK and individuals to come for the purposes of establishing or investing into a UK business or coming in as investors. These include: Sole representatives of overseas businesses senior employees of overseas businesses that wish to establish a branch or subsidiary in the UK can be sent to the UK under this category. They must have full authority to take operational decisions on behalf of the parent company overseas, must remain employed by the parent company or branch/subsidiary, and may not work for any other business in the UK. Tier 1 (Entrepreneur) for individuals with 200,000 disposable capital of their own or from a third party wishing to establish a new business in the UK or invest into an existing UK business which must generate at least two jobs for British, EU or permanent UK residents. Successful applicants are limited to working for their own businesses and do not have access to the labour market. Applications can be made with a lower level of funding of 50,000 where the investment is made available by a UK regulated venture capital firm, a UK government department or through accelerator companies supporting start-ups where they are endorsed by UK Trade and Industry (UKTI). Tier 1 (Investor) for those with 1m disposal capital who wish to invest into UK government bonds, and share or loan capital in UK trading companies. These investors have strict requirements on the permissible investments under this category and all requirements for those investments are to be valued by a regulated financial institution in the UK. They have no restrictions on employment in the UK, other than working as professional sportspersons, or as doctors or dentists in training. 7 Temporary Work Permits 7.1 Is there an immigration category permitting the hiring of temporary workers for exchanges, career development, internships or other non-economic purposes? The Tier 5 (Temporary Worker Government Authorised Exchange) visa provides a route for work experience, training, research or fellowships. Under this category, there are four types of schemes which are approved under the GAE sub-category which include: Work experience programmes such as internships, approved work experience programmes, volunteering and job shadowing. Research programmes. Overseas government language programmes funded by overseas governments or government-sponsored organisations. Training programmes for those receiving formal practical training in the field of science and/or medicine, the UK armed forces or the UK emergency services, or those who graduated in the UK and are undertaking post-graduate professional training or work experience to obtain a related professional qualification or registration. 140

8 A number of organisations have been approved as overarching sponsors which include regulatory bodies, private companies, governmental organisations and UK universities. They will act as the sponsor and will assign a Certificate of Sponsorship to enable the individual to undertake their training, research or exchange at an organisation in the UK. The scheme allows for work experience and training programmes up to a maximum of 12 months, and research and training programmes up to a maximum of 24 months. These schemes are widely used by businesses to bring in short-term interns undertaking paid work experience in the UK. Those coming under these schemes must be coming for primarily non-economic reasons and should be taking supernumerary positions and not filling full-time vacancies in the UK. 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform temporary work? The UK has a number of specific categories which are contained in Tier 5 of the Points Based System which enable individuals to come to the UK in a number of sectors. The Tier 5 categories which currently exist under the Temporary Worker category are as follows: Creative and sporting this covers those who are internationally established at the highest level in their sport as players or coaches and who are making a significant contribution to the development or operation of that sport in the UK, who have been endorsed by the relevant governing body for that sport, or for creative workers and their entourage operating in dance, theatre or film and television. This category is often used for internationally recognised performers coming for a series of performances or engagements in the UK for up to 12 months. Charity workers this category covers those wanting to undertake unpaid temporary voluntary work in the UK. Religious workers this category covers those coming to undertake temporary preaching, pastoral work and nonpastoral work. 8 Group or Intra-Company Transfer Work Permits 8.1 Does a specific immigration category exist for intercompany transfers within international groups of companies? The Tier 2 (Intra-Company Transfer) category of the Points Based System provides a possibility for international groups of companies to transfer staff into the UK. 8.2 What conditions must an employing company or organisation fulfil in order to qualify as part of a group of companies? To sponsor employees under the ICT sub-categories, the UK employing company or organisation must be able to show a direct link by common ownership or control with the overseas entities from which employees will be transferred to the UK. Common ownership or control has a broad definition and the current guidance specifies a number of situations in which this may be established. Examples include situations where one entity holds more than half the issued share capital of the other entity, or where both entities have a common parent. One entity controls the composition of the other entity s board, or where one individual has a majority shareholding in each of the entities. In addition, common ownership or control can also be established where both entities are party to a joint venture agreement, or where entities are either accountancy or law firms which use the same firm name in the UK and the country in which the other entity is operating. 8.3 What conditions must the employer fulfil in order to obtain a work permit for an intra-company group employee? The Tier 2 (Intra Company Transfer) category of the Points Based System exists for multi-national businesses to transfer skilled employees to a UK branch or to a UK group company or linked company. Sponsors applying for their sponsor licence are required to register under the Tier 2 (ICT) and to provide proof of the corporate link between the UK sponsoring entity and the overseas group company or organisation. This will typically be the head office s financial statements or Annual Report showing the linked entities, or an affidavit from a senior UK employee confirming the link. This is submitted with the initial application. If the UK sponsor did not apply under the ICT category when first applying for a sponsor licence, they can apply to expand the licence to include the ICT category. The qualifying criteria and the period for which the employee can be transferred under the ICT route will depend on which of the four sub-categories the employee qualifies under. All employees must be filling skilled roles at NQF Level 6 (or Level 4 for certain creative roles). The sub-categories are: Short-term staff the employee must have been employed for a minimum of 12 months by a group company and will need to be paid a minimum salary of 24,500 per annum or the minimum salary as per the appropriate SOC code, whichever is higher. Long-term staff this category enables individuals and employees of multi-national companies to come to the UK for up to five years. The employee must have been employed for a minimum of 12 months by a group company. They must be paid at least 41,000 per annum or the minimum salary as per the appropriate SOC code, whichever is higher. Graduate trainee this category is for employees who are recent graduates, have worked for the overseas group company for at least three months abroad, and are being transferred as part of a structured graduate training programme which will lead towards accelerated promotion to a managerial or specialist role in the organisation. Visas are granted for a maximum of 12 months and there is a limit of five Graduate Trainee visas per year per employer. They must be paid at least 24,500 or the minimum salary as per the appropriate SOC code, whichever is higher. Skills transfer this category enables employers to transfer existing employees to the UK, for up six months in order to either acquire the skills and knowledge needed to do their job overseas or to provide their specialist skills to the UK workforce. The role must be supernumerary and they should not be filling a full-time vacancy. The employee does not have to have been employed for a specific period before being transferred. They must be paid at least 24,500 or the minimum salary as per the appropriate SOC code, whichever is higher. 8.4 What is the process for obtaining a work permit for an intra-company group employee? Employers who have been registered as Tier 2 sponsors are given access to the online Sponsor Management System ( SMS ) which they can use to assign a Certificate of Sponsorship ( CoS ) to the relevant employee. Each sponsoring employer can request an 141

9 allocation of Tier 2 (Intra Company Transfer) visas for each year which runs from April to April, and can use these Certificates of Sponsorship for transfers within international groups of companies or organisations. The employer will complete all of the relevant details in relation to the individual s employment, start date and the length of employment, salary and allowances, job title and job description required by the online SMS system. The employer is also given the opportunity to certify that they will cover the financial maintenance requirements for the individual employee. Certification of maintenance by the sponsoring employer confirms that an employer will maintain and accommodate the employee up to the end of their first month of employment in the UK if required. If the employer does not certify maintenance, the employee will need to meet the requirement by providing certain financial information (see below). The employer can then assign the Certificate of Sponsorship, which generates a unique reference number. A fee is payable through the online system for each Certificate. The employer will then notify the employee of the unique reference number so that the employee can use this in support of their Tier 2 (Intra Company Transfer) entry clearance (visa) application outside the. 8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category? The process for obtaining a visa under the Intra Company Transfer category is as follows: The employee submits an online visa application form, providing full personal details and confirmation of the Certificate of Sponsorship number. The employee pays an online visa fee and makes an appointment to attend a biometric appointment at a designated Visa Application Centre ( VAC ). The employee attends their appointment at the VAC and provides their biometrics (fingerprints and photographs). The employee submits their supporting documents including the online visa forms, passport, passport photographs and supporting documentation. This is usually done at the VAC when providing biometrics. The VAC will forward the application package to the relevant Embassy, Consulate or High Commission dealing with applications from the country in which the application is made. The British Consulate post will decide the application and forward the decision to the VAC. The VAC will contact the individual to confirm that the application has been approved. Visa processing differs from country to country. The UK authorities have outsourced parts of the visa application process to commercial partners who manage the visa application centres and tracking of applications. The VAC may be in a different country to that in which the application is processed and decided (under the UK s Hub and Spoke visa processing model). The following supporting documents are required: 1. Visa application form. 2. Biometric appointment confirmation. 3. Current passport. 4. Two passport photographs of the applicant. 5. Completed Appendix 5 form. 6. Completed TB test results (if the employee is applying in a country in which TB testing is required) months original payslips, confirming that the employee has been employed for 12 months (or a lesser period where required, depending on the sub-category of the Tier 2 (ICT) route). These documents are not mandatory but generally should be provided in original format. 8.6 How long does the process of obtaining the work permit and initial visa take? Visa processing takes between one to four weeks to be completed depending on where the applicant is applying. Priority visa processing is available for Tier 2 (ICT) visas, depending on which country the employee is applying in. 8.7 How long are visas under the initial category valid for, and can they be extended? Initial visas can be valid for up to five years in the Tier 2 (ICT) long-term category. Initial visas cannot be extended for longer than five years unless the individual is a high-earner earning more than 153,500 per annum, in which case the visa can be extended for up to nine years in total. Employees coming under the Tier 2 (ICT) short-term category may only come to the UK for a maximum of 12 months. At the end of the 12-month period they must leave the and are subject to a cooling off period which applies from the date of their departure, under which they cannot re-enter the UK under the ICT short-term route for 12 months. They can only re-enter the UK under the Tier 2 (ICT) long-term category if they wish to return to the UK. Tier 2 (ICT) graduate trainee visas are valid for up to 12 months maximum and cannot be extended. Tier 2 (ICT) skills-transfer visas are valid for a maximum of six months and cannot be extended. It is important to note that certain cooling off periods exist which may prevent those who have been employed in the UK under Tier 2 from returning to the UK to be employed under Tier 2. The general rule is that if an employee has previously been sponsored under Tier 2 of the Points Based System and their leave to remain in the UK has ended or expired when they are outside the UK, they will not be able to return to the UK under Tier 2 for 12 months. If the employee is in the UK, has previously held Tier 2 leave to remain and has switched to another immigration category, they cannot switch back to the Tier 2 route until at least 12 months from the date of end of their leave to remain under Tier 2. There are certain circumstances in which the cooling off period does not apply. This will be where the employee is: applying for an extension to their existing leave in the UK; applying to change sponsoring employer through a change of employment application in the UK; a high earner who will be paid a gross annual salary package of 153,500 or higher; or applying under the Tier 2 (ICT Long-Term Staff) route and their last grant of Tier 2 leave was under the Tier 2 (ICT) rules in place before 6 April 2011, or in one of the following ICT categories: skills transfer; graduate trainee; or short-term staff. It is therefore important that employees who are sponsored to work under the ICT category extend their leave to remain in the UK and do not allow their visas or leave to remain to expire while they are outside the UK. 142

10 8.8 Can employees coming under the intra-company transfer route apply for permanent residence? Employees who were granted entry clearance (a visa) under the Tier 2 (ICT) route under the rules in place from 6 April 2010 can no longer apply for indefinite leave to remain (permanent residence) once they complete five years in the UK under the Tier 2 (ICT) category. Employees who entered the UK under the rules in place before this date with a Tier 2 (ICT) visa may be able to apply for indefinite leave to remain once they have completed five years of continuous residence in the UK. They can qualify for indefinite leave to remain if they have been continuously employed throughout the five years, with breaks between employment of no more than 60 days at any time. They have not been absent from the for more than 180 days in any of the 12-month periods making up the total five years. They have passed a Life in the UK test this is an integration-type test which is undertaken online which tests applicants on their knowledge of UK history, politics, society and living in the UK. They speak English to Level B1 on the CEFR. The individual does not have any criminal convictions which would prevent them from applying. They provide confirmation from their current employers that they are still required for their role and that they continue to receive the appropriate rate of pay for that role, in line with the relevant SOC code. 9 New Hire Work Permits 9.1 What is the main immigration category used for employers who wish to obtain work permits for new hires? The main immigration category used for employers who wish to sponsor new hires is Tier 2 (General). There are also specific sector-based categories of Tier 2. The key features of the Tier 2 (General) category are that: The individual must be coming to do a skilled role NQF at Level 6 (or NQF Level 4 in designated creative roles) and paid the appropriate salary as per the designated SOC Code. The employer must undertake a Resident Labour Market Test unless an exemption applies. The employee must speak English to B1 level on the CEFR (intermediate). The Tier 2 (Minister of Religion) category covers those who have been offered employment as pastors, missionaries or members of religious orders within the. The Tier 2 (Sports person) category is available for elite sportspersons or coaches where their employment will make a significant contribution to the development of the sport in the at the highest level. The individual must first obtain an endorsement from the relevant governing body for the sport. The endorsement confirms that the individual is internationally established at the highest level and will contribute significantly to the relevant sport in the. 9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident workers, before a work permit can be issued to new hires? Labour market testing is generally required through following the Resident Labour Market Test ( RLMT ) process before a prospective employee may be offered sponsorship under Tier 2 (General). Employers registered as Tier 2 sponsors may only recruit a non-eu national where they have carried out the RLMT and can show that no suitable settled worker is available to fill the job or, where the job is exempt from the RLMT, the RLMT must be conducted in the following way: The position must be advertised in Jobcentre Plus Universal Jobmatch service or Jobcentre Online for jobs in Northern Ireland, plus one other medium. The other medium can be a print or online newspaper, journal or publication or internet jobsite. Certain occupations or roles are exempt from the requirement to advertise in Jobcentre Plus Universal Jobmatch. The advert must comply with the strict requirements of the Tier 2 (General) guidance in terms of its content including job title, location, salary on offer and main criteria for the role and a closing date. An advert that does not comply with these requirements cannot be relied on to satisfy the RLMT. The advert must appear for 28 calendar days. The employer must consider all candidates and provide reasons for not shortlisting settled candidates (generally British, EU citizens or UK permanent residents). Applicants may only be discounted on the grounds that they are not suitable according to the criteria set out in the advertisement. The role may not be offered to a non-eu national who requires sponsorship if they are suitable candidates from the resident labour market. This means that even where the employer has a better candidate who is a non-eu citizen but a suitable resident candidate, the role must be offered to the resident candidate even though they are less skilled or experienced. The only exception to this rule is for jobs falling within the PhD occupational codes, which generally cover scientists, research and development managers in the scientific field and higher education teaching professionals. 9.3 Are there any exemptions to carrying out a resident labour market test? There are exemptions to the Resident Labour Market Test; these include: Jobs which are listed on the shortage occupational list. Those transitioning from the Tier 1 (Post Study Work) category this category was closed from April Those transitioning from the Tier 4 (Student) category where they have passed or will be awarded a UK-recognised BA or MA degree, a post-graduate certificate in education, a professional graduate diploma of education or have completed 12 months study towards a PhD. Those who will be earning 153,500 or more. Certain supernumerary research positions where the employee has been issued with a scientific research award for fellowship. Certain post-graduate doctors and dentists in speciality training sponsored by overseas governments under an agreement with the UK. 9.4 What is the process for obtaining a work permit for a new hire? Where the Resident Labour Market Test is required, the sponsoring employer must apply for a restricted Certificate of Sponsorship under Tier 2 (General). Restricted certificates are subject to an annual limit of 20,700, which are made available on a monthly basis through an allocation panel administered by the Home Office. Once the Resident Labour Market Test is completed, employers can apply via the SMS for a restricted Certificate of Sponsorship. To be considered in each of the monthly panels, the employer must submit 143

11 their restricted Certificates of Sponsorship request by the fifth day of each month. The Home Office allocation panel will decide the application by the eleventh month and, if satisfied that the Resident Labour Market Test has been undertaken correctly, will make a restricted Certificate of Sponsorship available on the sponsoring employer s Sponsor Management System. The employer can then assign the restricted Certificate of Sponsorship to the relevant employee for them to apply for their visa or for leave to remain. It is important to note that where an individual is already in the UK working for a UK sponsor, an employer can assign an unrestricted Certificate of Sponsorship to that individual if they are able to extend their stay in the UK under Tier 2 (General). The employer must still carry out a Resident Labour Market Test before assigning the Certificate of Sponsorship. Once they have the Certificate of Sponsorship assigned, they can apply for further leave to remain in the UK. 9.5 What is the process for the employee to obtain a visa under the intra-company group transfer category for a new hire? The process to obtain a visa under the new hire category is the same process as that in question 8.5. once they have completed five years continuous residence and employment under the Tier 2 (General) category. In order to qualify, they will need to meet the following conditions: They have been continuously employed throughout the five years with breaks between employment of no more than 60 days at any time. They have not been absent from the for more than 180 days in any of the 12-month periods making up the total five years. They have passed a Life in the UK test this is an integration-type test which is undertaken online which tests applicants on their knowledge of UK history, politics, society and living in the UK. They speak English to Level B1 on the CEFR. The individual does not have any criminal convictions which would prevent them from applying. They provide confirmation from their current employers that they are still required for their role and that they continue to receive the appropriate rate of pay for that role. 10 Conditions of Stay for Work Permit Holders 9.6 How long does the process of obtaining the work permit and initial visa for a new hire take? The Certificate of Sponsorship can be assigned immediately through access to an online system, and will be available to be used by the prospective employee. The visa application process takes between one to four weeks depending on where the application is made. 9.7 How long are initial visas for new hires granted for, and can they be extended? Initial visas can be granted for up to five years. If they are granted for less than five years they can be extended without the need for any further Resident Labour Market Test. Currently Tier 2 (Generals) are valid for a maximum of six years and it is important that individuals are able to qualify for indefinite leave to remain (permanent residence) within those six years, as they will not be able to extend beyond this if they have entered the UK in this category on or after 6 April In particular, those on this route must ensure that they do not disqualify themselves from applying for indefinite leave to remain by having excessive absences outside the UK in the five-year qualifying period (see question 9.9 below). 9.8 Is labour market testing required when the employee extends their residence? 10.1 What are the conditions of stay of those who obtain work permits and are resident on this basis? Those coming under the Tier 2 categories are permitted to work for the employing sponsor in the role described in their Certificate of Sponsorship. They are also able to undertake secondary employment in the same sector and at the same level as their main job for up to 20 hours per week. They are also entitled to study as long as this does not interfere with the job that they are sponsored to undertake in the UK. Those sponsored under the Tier 2 rules cannot have any access to public funds, which are the main welfare benefits available in the UK. In addition, those who are under Tier 2 (General) visas cannot own more than 10% of the shares in their sponsoring company, unless they earn more than 153,000 per annum Are work permit holders required to register with municipal authorities or the police after their arrival? Certain nationals are required to register with the police within seven days after the date of their arrival. A list of nationalities is set out in Appendix 2 of the UK Immigration Rules, and those who are required to register within seven days will have an endorsement on their entry clearance visa confirming this. Registration takes place at the Overseas Visitors Registration Office in London or at a local police station if the person is resident outside Greater London. No further labour market testing is required where the employer extends the Tier 2 (General) sponsorship and the employee applies for an extension of their permission to stay. However, if the Tier 2 (General) employee is changing sponsoring employer in the UK, a Resident Labour Market Test will be required subject to the exemptions set above. 9.9 Can employees coming as new hires apply for permanent residence? Those who are admitted under the Tier 2 (General) route will be eligible to apply for indefinite leave to remain (permanent residence) 11 Dependants 11.1 Who qualifies as a dependant of a person coming to work on a sponsored basis? Employees coming to the UK to work in the UK are entitled to bring their spouses, partners and children under 18 with them. There is no provision for any other family members or children over 18 to accompany the employee, and any applications will normally be refused unless there are exceptional compassionate reasons. 144

12 11.2 Do civil/unmarried or same-sex partners qualify as family members? For civil partners with overseas civil partnerships, the civil partnership will need to be recognised as equivalent to a UK civil partnership or marriage in order to qualify. For unmarried partners or for those whose overseas civil partnerships are not recognised as equivalent to UK marriage or civil partnership, the partner will need to demonstrate that they have cohabited in a relationship akin with marriage or a civil partnership for at least two years. Significant documentary evidence of cohabition such as bank statements, utility bills and other official evidence addressed to the partner and/or the employee at the same address must be provided Do spouses and partners have access to the labour market when they are admitted as dependants? Spouses and partners who are admitted to the UK as dependants have full access to the labour market and are not required to obtain further permission or authorisation to work in the UK. a temporary to a permanent visa are very limited. Switching from Tier 2 (Intra Company Transfer) to the Tier 2 (General) route within the UK is only generally possible if the person came to the UK under the Immigration Rules in place before 6 April 2011 and they are changing employing sponsor in the UK. In addition, they cannot leave the UK and seek fresh admission under the Tier 2 (General) route as they will be caught out by the cooling off provisions which require them to be outside the UK for 12 months before being a re-enter under that route. The only exception to this is where they are sponsored as high earners paid at least 153,500 per annum. It is therefore extremely important to ensure that, where it is possible that the employee will be transferred for an extended period, careful consideration is given to the most appropriate category of entry under Tier 2. There are special situations where those admitted as temporary workers may switch this includes footballers admitted under the Tier 5 (Creative and Sporting) route (usually because they may not meet the Tier 2 (General) language requirements) who can then switch to the long-term category once they can speak English to the appropriate level Do children have access to the labour market? Children who are admitted as dependants have access to the labour market and can work in the UK in accordance with UK employment law. 12 Permanent Residence 12.1 What are the conditions for obtaining permanent residence? Those who are admitted under the Tier 2 (General) route will be eligible to apply for indefinite leave to remain (permanent residence) once they have completed five years continuous residence and employment under the Tier 2 (General) category. In order to qualify, they will need to meet the following conditions: They have been continuously employed throughout the five years with breaks between employment of no more than 60 days at any time. They have not been absent from the for more than 180 days in any of the 12-month periods making up the total five years. They have passed a Life in the UK test this is an integration-type test which is undertaken online which tests applicants on their knowledge of UK history, politics, society and living in the UK. They speak English to Level B1 on the CEFR. The individual does not have any criminal convictions which would prevent them from applying. They provide confirmation from their employers that they are still required for their role and that they continue to receive the appropriate rate of pay for that role. The rules for obtaining indefinite leave to remain in other immigration categories vary but all generally require the applicant to meet the absence, Life in the UK and language requirements in addition to continuing to meet the relevant category specific criteria Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence? Generally, the circumstances in which employees can switch from 13 Bars to Admission 13.1 What are the main bars to admission for work? The main bars to admission to the UK (other than criminal convictions which are set out below) are contained in the General Grounds for refusal in the UK Immigration Rules, which contains the provisions on mandatory refusals (visa bans) and discretionary refusals. The main grounds are: The person is subject to a UK deportation order. The person s exclusion is, or has been personally directed by the UK Secretary of State as being conducive to the public good. Medical grounds where the person s medical condition is a significant risk to public health. The person has made false representations, submitted false documents or failed to disclose material facts in relation to the current application. There are also a number of mandatory visa bans which exclude a person from returning to the UK for certain periods. These are where: The person has overstayed their previous visa for more than 90 days. The person used deception in an application. The person breached a condition of their previous stay or entered illegally. Where the above situations occur, the period of the visa ban will depend on when and how they left the UK. The bans will apply for: One year if they left the UK voluntarily (not at public expense). Two years if they left the UK voluntarily, at public expense, no more than six months after the date on which they were given notice of their removal decision, or no more than six months after the date on which they exhausted their appeal rights against that decision, whichever is the later. Five years if they left the UK voluntarily, at public expense, more than six months after their removal decision or more than six months after they exhausted their appeal rights against that decision. 10 years if they were removed from the UK at public expense. 145

13 10 years if they used deception (which includes using false documentation) in support of a previous application for entry clearance. In addition to the above bars, it should be remembered that an employee who has previously been sponsored in the UK under the Tier 2 route may be subject to a cooling off period which may prevent them from returning to the UK under Tier Are criminal convictions a bar to obtaining work permission or a visa? Criminal convictions may be a bar to obtaining a visa to work in the UK. In particular, it is important to note that there are discretionary and mandatory grounds for refusal. The mandatory grounds, under which an immigration application must be refused where they have received a custodial sentence, are that the person: has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least four years visas or entry will normally always be denied; has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than four years visa or entry will be denied for 10 years from the end of the sentence; or has been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months visa or entry will be denied for five years from the end of the sentence. It is important to note that although application must be refused, there is scope for making representations in defined circumstances; for example where the offence happened a significant time ago and there have been significant changes, or where a person is making a significant investment into the UK. The discretionary grounds for refusing entry based on a criminal convictions are where the person: has received a non-custodial sentence they may be refused entry or a visa if the person was convicted within the last 12 months; or where a person s offending has caused serious harm or where the person is a persistent offender who has shown particular disregard for the law. Criminal convictions will also affect a person s ability to obtain extensions of leave to remain and indefinite leave to remain (permanent residence) in the UK. Those applying for indefinite leave will be limited from applying if: they have been convicted of an offence for which they have been sentenced to imprisonment for at least four years they will not be able to apply; they have been convicted of an offence for which they have been sentenced to imprisonment for between 12 months but less than four years they will be prevented from applying for 15 years from the end of the sentence; they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months they will not be able to apply for seven years from the end of the sentence; or they have been convicted of, or admitted, an offence for which they have received a non-custodial sentence or other out-of-court disposal that is recorded on their criminal record they will be prevented from applying unless 24 months have elapsed between the conviction and the date their application is decided. For the first three points above, these will rarely come into play as the individual would normally be refused entry to the UK in any event or, if convicted in the UK, to a custodial sentence of 12 months or more, and would be subject to the UK s automatic deportation provisions. However, the issue of non-out-of-court disposals is an issue, as this can include a range of sentences which are included in a person s criminal record, including cautions these are often issued by the police in the street in place of a formal charge and conviction by a court. It is important that any criminal offence, including drink driving and traffic offences and cautions, are disclosed in visa applications and applications for leave to remain and indefinite leave, as failure to mention them may result in refusal of the application, a significant visa ban on the grounds of deception or failure to disclose material factors where applying for a visa, and possible criminal prosecution for providing false information in an immigration application. 146

14 Nick Rollason Ilda de Sousa Kingsley Napley LLP Knights Quarter 14 St John s Lane London EC1M 4AJ Tel: Fax: nrollason@kingsleynapley.co.uk URL: Nick Rollason is a partner and head of Business Immigration. He advises on all areas of UK immigration and nationality law and has particular expertise in providing strategic advice to businesses on their global immigration needs. Nick has extensive expertise across all immigration routes, with a widely recognised breadth of knowledge enabling him and his team to offer clear solutions to complex immigration problems. He is a well-known expert in EU immigration law and has litigated key test cases before the European Court of Justice. He is regularly consulted by the UK immigration authorities on proposed changes to UK immigration rules and policy. Nick is a regular conference speaker and has written chapters on immigration in numerous publications. He is a long-standing member of the Immigration Law Practitioners Association ( ILPA ), the American Immigration Lawyers Association ( AILA ) and the Alliance of Business Immigration Lawyers ( ABIL ), and a founding member of the European Immigration Lawyers Network ( EILN ). Nick is listed as a leading figure in the Who s Who of Corporate Immigration Law, Chambers UK and The Legal 500: UK. Kingsley Napley LLP Knights Quarter 14 St John s Lane London EC1M 4AJ Tel: Fax: idesousa@kingsleynapley.co.uk URL: Ilda is a partner in the immigration team at Kingsley Napley. She is a South African qualified attorney and a British qualified solicitor who joined the firm in January Ilda has more than 10 years of UK corporate immigration law experience, managing large company clients as well as handling complex matters for individuals, British nationality applications, appeals, judicial reviews and applications under European Law. Ilda also has extensive knowledge and experience in all aspects of the Points Based System, including assisting employers with their Tier 2 or 5 sponsor registrations and advising on immigration compliance issues. Equally, she has extensive experience in advising investors, entrepreneurs and high-net-worth individuals. Kingsley Napley s immigration team is recognised as one of the best in the UK, with over 12 years in the top tier of Chambers UK and The Legal 500. We have an established reputation for providing clear strategic immigration advice, tailored to each situation and client. Our dedicated business immigration team supports our global clients in all their immigration needs, from companies setting up in the UK to assisting multinationals with transferring high volumes of staff into the UK and across the world. Our high levels of client care, together with our excellent relationships with the UK immigration authorities and our high-level policy work, enable us to deliver a service underpinned by our key values excellence, integrity, quality and added value. 147

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