This section sets out the visitor rules insofar as they relate to doing business in the UK. The visitor rules may be a sustainable long-term method of providing services in the UK through EU 26 citizens on the same basis as at present. For others, it may perhaps be possible to use them in the context of curtailed or reduced visits to UK clients.
An important feature of UK immigration rules is that they change very often. Unlike many other important laws, they are made by Home Office revisions to the rules which occur very often. There have been very turbulent times in the area of immigration with significant shifts in policy occurring at relatively short notice.
The Home Office guidance is directed at the public and to immigration officers. It can indicate changes in the policies without significant or any changes to the rules. The area is quite literally a moving target.
Automatic Visitor Visas Likely even in Hard Brexit
It is very likely that the EU 26 countries will be on the so-called automatic Visa waiver list for UK visitor visas. That is to say, persons from EU 26 will be likely to be entitled to come to the UK for a period of up to 6 months as visitors as if they were granted a visitor visa, subject to the visitor Visa rules.
The nationals of most “western” countries outside the EU can come to the UK without a prior specific visa. They are deemed to be in the UK under the visitor Visa rules and regime. We have considered the scope and nature of the visitor Visa rules and set out the broad parameters under current Home Office rules, and what can be done under them.
Present UK visitor rules
The following sets out the current visitor visa rules in the UK. The purpose of setting out the following is to consider what adaptation of a trader’s EU26 employees’ UK presence might be necessary or possible in a situation where they are (in particular suddenly) treated in the same way as third-country nationals under UK immigration rules.
The applicant must have sufficient resources to maintain and accommodate himself in the UK. A third-party employer can provide the maintenance and accommodation, provided it has a genuine professional relationship with the visitor and is not in breach of UK immigration laws.
Technically, there is no limit on the number of visits a person may make to the UK. In strict terms, there is no absolute time which must elapse between successive visits. However, if a person makes a series of visits, the immigration authorities may consider the purpose of the visit in light of the length of time that that has elapsed since the previous visit and this may be problematical. If a person’s presence in the UK is too extensive, it may mean that he is determined to be basing himself in the UK or effectively undertaking a UK employment.
The applicant must be a genuine visitor. This means he must leave the UK at the end of his visit and not live in the UK for extended periods through frequent or successive visits or make the UK his main home. He must be genuinely seeking entry for a purpose permitted by the visitor rules.
Requirements and intention
The criteria depend, to some extent on intention. The onus of proof is on the visitor if the matter is queried by the immigration officer or otherwise. The immigration officer may look at the past immigration history and visits, the duration of visits, the circumstances, ties to other countries, the pattern of travel, the credibility of the information. The immigration officer may refuse leave to land if the visitor does not satisfy the requirements in his view. It may be that the UK will not apply checks on Irish flights, so that the policing of immigration may not be as extensive as regard third countries.
The general rule is that the applicant must not intend to work in the UK. There are exceptions set out below.
The applicant must not intend to work in the UK, which includes the following:
- taking employment in the UK;
- doing work for an organisation or business in the UK;
- establishing or running a business as a self-employed person;
- doing a work placement or internship;
- direct selling to the public;
- providing goods and services;
- unless expressly allowed by the permitted activities in Appendices 3, 4 or 5.
V 4.6 Permitted activities must not amount to the applicant taking employment or doing work which amounts to them filling a role or providing short-term cover for a role within a UK based organisation. In addition, where the applicant is already paid and employed outside of the UK, they must remain so. Payment may only be allowed in specific circumstances set out in V 4.7.
V 4.7 The applicant must not receive payment from a UK source for any activities undertaken in the UK, except for the following:
- reasonable expenses to cover the cost of their travel and subsistence, including fees for directors attending board-level meetings; or
- prize money; or
- billing a UK client for their time in the UK, where the applicant’s overseas employer is contracted to provide services to a UK company, and the majority of the contract work is carried out overseas. Payment must be lower than the amount of the applicant’s salary; or
- multi-national companies who, for administrative reasons, handle payment of their employees’ salaries from the UK; or
- where the applicant is engaged in Permitted Paid Engagements (PPE) as listed at Appendix 4, provided the applicant holds a visa or leave to enter as a PPE visitor; or
- paid performances at a permit-free festival as listed in Appendix 5.
Permitted Activities Under the Visitors Rules
The immigration rules define permitted activities, including permitted business activities. However, these permitted activities must not amount to the applicant taking up employment or doing work which amounts to filling a role providing short-term cover for a role within the UK organisation. Where a person is already paid and employed outside the UK, he must remain so. Payment may only be allowed in the specific circumstances above.
A visitor may:
(a) attend meetings, conferences, seminars, interviews;
(b) give a one-off, or short series of talks and speeches provided these are not organised as commercial events and will not make a profit for the organiser;
(c) negotiate and sign deals and contracts;
(d) attend trade fairs, for promotional work only, provided the visitor is not directly selling;
(e) carry out site visits and inspections;
(f) gather information for their employment overseas;
(g) be briefed on the requirements of a UK based customer, provided any work for the customer is done outside of the UK.
The Home Office guidance on the above rules state a decision-maker should assess whether the period of leave is credible in view of the activities the applicant is carrying out stop
Entry clearance and multi-entry Visa
Most visitors are given leave to enter the United Kingdom for a period not exceeding six months subject to conditions prohibiting employment. This does not prohibit work-related activities within the scope of the rules. This is given automatically to nationals of visa waiver countries.
A practical consideration is an extent to which the UK will check for passports and other identification and entry for flights from Ireland. This is a matter of immigration enforcement policy. The light touch immediate post-Brexit announcements suggest that intrusive policing is unlikely, at least initially. It is possible that the common travel area rules and practice will evolve. There may be more or less policing of the common travel area to verify that the persons using qualify.
It is possible for a non-Visa national to visit the UK without clearance for a period of up to 6 months. In effect, leave to enter is sought from the immigration officer and automatically granted in most cases. It may reduce problems for business visitors if entry clearance is obtained in advance.
A sponsorship licence is not required for a business visitor Visa.
Guidance on Multi Visit Visas
he Home Office guidance to its own decision-makers says
Applicants may apply for a visit visa that allows multiple visits of up to 6 months at a
time (for a (standard) visitor) over a period of:
- 2 years
- 5 years
- 10 years
Applicants for a long-term visit visa must meet all the visitor rules relevant to their visit. Traders must then decide whether to issue the length of visit visa applied for. The applicant must satisfy traders that they have a genuine intention to visit on a regular basis.
- credible ongoing reason to visit: a successful applicant will show a frequent and continued reason for coming to the UK,
- stability of personal and economic circumstances –
- travel history – a person does not need to have previously held a visit visa before being issued with a multiple entry visit visa, however, a history of international travel which shows the individual’s compliance with the UK or other immigration laws will be relevant to deciding whether the applicant intends to leave the UK at the end of each visit – see guidance on travel/ immigration history
Where the applicant meets the visitor rules but does not show a need to visit the UK on a regular basis and therefore does not qualify for a long-term visit visa, traders can issue a visit visa for up to 6 months. In such cases, no refund (full or partial) is available.
Prior to April 2015 changes in the immigration rules, there was an express category of secondee under the business visitor immigration section of the rules. Under these older versions of the rules, a business visit visa could be issued to “a secondee to a UK company which is directly contracted with the visitor’s overseas company, with which it has no corporate relationship, to provide goods or services, provided the secondee remains employed and paid by the overseas company throughout the secondee’s visit”.
Although secondment is not prohibited, the conditions are expressed in different terms, and there is no express secondment category as such. The broad effect of the changes was to make the visitor rules a little broader generally and to reduce the number of different categories so that they were clearer.
The rules do not specifically prohibit secondment such. The above tests need to be considered specifically in relation to what work is being done. Where work is being undertaken by a business visitor on behalf of an overseas employer as part of that employer’s contract to provide services to a UK company and the majority of contract work is carried out overseas the employer may bill the UK client for the time the visitor has spent in the UK. Although the overseas employer may charge for the time spent in the UK, the visitor may only undertake the permitted activities as defined in the rules in the UK.
There are provisions which apply to inter-group transfers which would only be available if traders had a UK company. An employee of an overseas-based company may:
(a) advise and consult;
(c) provide training;
(d) share skills and knowledge; on a specific internal project with UK employees of the same corporate group, provided no work is carried out directly with clients.