Brexit and the introduction of the UK's new immigration system has created challenges for employers in relation to the movement of their workforce. The past few months has seen an increase in the number of client queries relating to the rules applicable to business visitors.
What are the business visitor requirements?
The business visitor visa is a sub-category of the standard visitor route and allows applicants to come to the UK to carry out business activities. In order to enter the UK as a business visitor, an applicant must demonstrate that:
- they will leave the UK at the end of their visit;
- they will not live in the UK for extended periods through frequent or successive visits or make the UK their main home;
- they have sufficient funds for their visit;
- the activities which they intend to carry out in the UK are permitted activities as defined in the Immigration Rules; and
- they do not intend to take employment in the UK.
In most circumstances, a business visitor cannot be paid in the UK. The applicant must meet all of the requirements including being able to demonstrate that they are a genuine visitor. This is a subjective assessment taken by the Immigration or Border Officer. They may not be immigration experts and it has been known for them to make incorrect decisions, refusing entry to eligible business visitors. It is therefore important to consider the key factors for employers set out below.
Who can apply as a business visitor?
The UK business visitor rules now apply to an increased pool of people including both EU, EEA and Swiss nationals ("EU nationals") (except Irish nationals) and non-EU nationals.
NB: It's important for any eligible EU nationals who haven’t already applied to the EU Settlement Scheme to do so before the deadline of 30 June 2021.
EU nationals who are not eligible for the EU Settlement Scheme, can enter the UK for business purposes for up to six months at a time, without needing to apply for a visa in advance.
What activities are business visitors permitted do in the UK?
Business visitors are not permitted to take employment in the UK but the rules do contain a restrictive list of permitted activities. These include things like attending pre-arranged business meetings and site visits, trade fairs or negotiating contracts.
There are additional permitted activities for various fields or specifics sectors. For example there are various intra-corporate provisions that apply to employees of an overseas based company, the manufacture and supply of goods to the UK and legal, creative and sports sectors.
It is important for employers to review the substantive activities that an employee will carry out during their business visit. If the activities are permitted, the visit can in theory take place. UK Border Officers have the liberty to stop and question visitors. If they are not convinced that an employee is a genuine visitor, they can be refused entry and in some cases sent home. Employers should be minded to produce documents to evidence the nature of the visit for the visitor to carry.
This is particularly useful if there are any language barriers that may prevent the employee from providing an accurate account to the Border Officer.
The business visitor route must not be used to circumvent the Immigration Rules relating to visa sponsorship. Productive work is prohibited, which means remote working while in the UK is likely to constitute illegal working. Employers should consider how long they intend to send someone to the UK as a business visitor as the longer the trip, the more likely it is to attract scrutiny about whether this is genuinely a trip falling into the business visit category. Obtaining a work visa may be more appropriate for longer or frequent trips to the UK. Employment, tax and data protection laws also play a role in terms of the wider parameters of the impact business visits can have on employers.
Does the coronavirus pandemic impact the business visitor route?
The impact of the coronavirus pandemic is also a factor for consideration. Employers should check the exit country and UK entry requirements including travel restrictions, quarantining and testing. These requirements are constantly changing and should be considered prior to, during and after the trip. If business visitors are 'stuck' in the UK, they should consider their position and review the UK Government's Guidance, "Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents".
Take positive steps to ensure eligibility and compliance before the visit takes place
Employers should complete a detailed assessment before sending employees to the UK as business visitors. This should minimise the risk of falling foul of the business visitor rules and help prevent illegal working, the penalties for which include an unlimited fine and can result in imprisonment for both employer and employee.
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