Bower's Law

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In January 2021, the UK Government will launch a new visa scheme aimed at providing a more advantageous migration route to all individuals with British National (Overseas) eligibility and their dependants. The new BN(O) visa will enable successful applicants to live and work in the UK for a period of up to 5 years before potentially becoming eligible for settlement (Permanent Residence) in the UK (based on a continuous period of 5 years residence in the UK). Although it is no longer possible to become a BN(O) citizen if you are not already, if you have the eligible status and don’t currently hold a BN(O) passport, you may be able to apply for that passport and/or make an application under the new BN(O) visa scheme.

The visa scheme will enable a BN(O) applicant to bring immediate family members to the UK with them, which will include a spouse or dependent children who may not have BN(O) status themselves. In some cases, it may extend to other family members on a discretionary basis where consideration may be outside of the Immigration Rules.

In all cases where an application for a family member is successful, the dependant family will have the same visa rights as the main applicant (i.e. a right to live and work in the UK for a period in line with the main applicant. They will also have the potential right to apply for settlement (Permanent Residence) in the UK.

The UK Immigration Rules are currently being overhauled, to be fully rolled out during January 2021, in part to implement the new legislation relating to European nationals entering the UK following Brexit. There are a number of migration routes for EU and non-EU nationals wishing to enter the UK. Visa categories for skilled workers, spouses of British citizens, Investors to the UK, Entrepreneurs and Representatives of overseas businesses are available for consideration. There are also routes for students and the Youth Mobility scheme for which the UK has a reciprocal arrangement with Hong Kong.

In most visa categories, the UK Immigration Rules provide options for dependant family members to join the main visa applicant in the UK. As a general guide, dependants include immediate family members such as spouse, civil partner, unmarried partner (with whom you have a durable relationship) and children under 18 years old. In some cases, it may be possible to make an application for an over-age dependent child to join you in the UK by making an application for ‘leave outside the rules’. Any such application is discretionary and likely to be complex.

In most visa categories, the UK Immigration Rules provide a route to Permanent Residence (settlement) in the UK. However, there are some limitations and it is sensible to consult with a specialist Immigration lawyer before applying for a visa, which should ensure that you and your family are in the correct visa category to enable you to apply for permanent residence following the requisite period of continuous residence in the UK. In addition to a period of continuous residence in a qualifying visa category, there are other eligibility requirements for a Permanent Residence application. Currently, these include an ability to speak English to a required level, passing the Life in the UK Test and ensuring that you do not have excess absences from the UK during the qualifying period. There may also be other requirements specific to your particular visa category.

The UK Tier 1 (Investor) visa is aimed at high net worth individuals who are independently wealthy and wish to move to the UK with a view to settling there. Investors do not require an offer of employment in the UK. The basis of the application is the investment of at least £2million that is held in one or more regulated financial institutions and under your control for disposal in the UK. The Investor visa offers a route to Permanent Residence (settlement) for the main applicant and their dependant family members. It may be possible to accelerate your route to Permanent Residence based on a sliding scale of investment, currently up to £10million.

The Innovator and Start-up visas replace the former Tier 1(Entrepreneur) visa aimed at those who wish to set up or start a business in the UK. There is a minimum financial requirement of £50,000 for the Innovator category. There is no initial capital requirement for the Start-Up category. In both categories the business must be endorsed by a recognised endorsing body approved by the UK Government. The business idea must be new and have potential for growth. The visa is not available for investment into a business that is already established and trading in the UK. The endorsement and documentary requirements for these visas are very prescriptive in both content and form.

A company that is established and trading outside the UK but also has UK operations may apply to the UK Home Office for an employer’s sponsor licence so that it can sponsor staff on a secondment to the UK. The sponsor licence will enable the company to move staff from overseas offices into the UK subject to specified criteria. Staff may be moved for short-term or longer-term projects. If it is your intention to settle permanently in the UK, you will need to discuss options with your employer to ensure that the most advantageous visa route is used. A company that is established overseas and wishes to set up operations in the UK may send you to the UK as their representative for establishing the UK business under the Representative of an Overseas Business visa category.

You may be eligible to come to the UK as the representative of a business planning to set-up either a UK branch or a wholly owned subsidiary provided that other eligibility criteria are met. The visa is designed for companies that intend to set up their first commercial presence in the UK and for that purpose will send a Senior Executive of the company with authority to make decisions on behalf of the organisation. It is not possible to apply for this visa if you own the company or have a majority shareholding in or are in effective control of it. The Representative must be employed by the company overseas and sent to the UK for the purpose of establishing UK operations.

If you are thinking of migrating to the UK you should discuss your individual circumstances with a specialist immigration lawyer to ensure that the most advantageous migration route is selected for your own personal and business situation.  The UK Immigration Rules are (very) complex and, in the most part, particularly prescriptive in terms of the required content and form of supporting documents.

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