IMMIGRATION

Navigating the Registration Process for Overseas Entities in the UK: Ensuring Compliance and Unlocking Opportunities

The UK continues to attract businesses from all corners of the globe. With its business-friendly infrastructure, environment and history, the UK remains a top destination for international entities seeking to establish a presence. However, for overseas companies looking to operate within the UK, navigating the regulatory landscape can be a daunting task.

One crucial step in this process is the registration of overseas entities, a procedure designed to ensure transparency, accountability, and compliance with UK laws. The Register of Overseas Entities (RoE) was established by the Economic Crime (Transparency and Enforcement) Act 2022 (ECTEA). It is regarded as an important step in dealing with global economic crime and furthering legitimacy within the UK property market.

The registration of overseas entities in the UK falls under the control of the Companies House, the government agency responsible for maintaining the official register of companies in the UK. Overseas entities seeking to establish a presence in the UK have historically had to register as an 'overseas company' if they plan to carry out business activities within the jurisdiction. On 26 October 2023, the ECTEA received Royal Assent, meaning that overseas entities which own UK property or land must declare information regarding their beneficial owners and/or managing officers.

To apply to register an overseas entity and its beneficial owners, the entity will require a Companies House Account. Detailed information about the overseas entity is required and its beneficial owners and/or managing officers will need to supply information about any relevant trusts, alongside the registration fee. A UK regulated agent based in the UK, often a law firm such as ourselves, must also confirm that they have carried out the requisite verification checks on the information regarding the beneficial owners and/or managing officers. It is therefore quicker and easier for the UK regulated agent to carry out the registration process themselves.

While the registration process may seem complex at first glance, it offers several benefits for overseas entities seeking to establish a foothold in the UK property market.

Legal Recognition: Registration as an overseas company provides legal recognition and legitimacy, enhancing the entity's credibility and reputation in the UK market.

Access to Markets and Opportunities: Registered overseas entities gain access to the vast UK market and can capitalise on business opportunities, partnerships, and investments within the country.

Enhanced Transparency and Compliance: By registering with Companies House, overseas entities demonstrate their commitment to transparency and compliance with UK laws and regulations, fostering trust among stakeholders and potential partners. If Companies have made an error in applications or have been delayed in registering, a concerted effort to communicate reasoning with Companies House should still be appreciated as a commitment to the transparency and compliance the ECTEA intended.

Protection of Rights and Interests: Registration affords overseas entities legal protections and safeguards their property within the UK, including the ability to sell, buy and lease the properties as well as resolve disputes surrounding the properties through the British legal system.

Once the entity has registered with Companies House, it will be issued with an overseas entity ID number (OEID). When the entity then enters property transactions, this number will be supplied to the Land Registry. The entity will then be able to buy, sell and transfer property within the UK whilst satisfying the regulatory requirements.

In an increasingly interconnected world, the registration of overseas entities in the UK serves as a gateway for foreign companies to new opportunities. While the process may involve complexities and regulatory requirements, it offers numerous benefits for businesses looking to expand their operations into the UK and its property market.

This article is provided  for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact us using the contact form or email us on reception@cnsolicitors.com

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Relationship breakdown and separation: Impact on a UK visa

Most of the visa pathways under the UK Immigration Rules allow dependent partners, which include spouses as well as unmarried partners to join their British Citizens, settled persons or leading applicants under the various visa routes in order for them to continue enjoying family and private life in the UK. It is, however, unavoidable, that every relationship goes through a fair share of ups and downs and in some cases, results in separation and divorce.

As far as the Home Office is concerned, every separation or divorce from a UK-based partner must be reported. This is because the visa of dependent partners depends on the relationship in question, making their stay in the UK limited to the leading applicant’s visa or visa validity on family routes.

Different rules apply to family members of the BN(O) Status Holders, where the subsequent applications for leave to remain or settlement do not require proof of a subsisting relationship. Similarly, in EUSS cases, each individual with a visa granted under the EUSS Scheme has leave in their own right. As such, the test of proportionality must be applied by the Home Office before considering visa cancellation.

The reporting can be made by either the visa status holder or the sponsoring partner. There is an electronic application form that can be found on the GOV.UK website is specially designed for this purpose.

The ultimate question is what happens to a valid UK visa after the necessary reporting has been made to the Home Office?

According to the Home Office’s internal procedure, once the notification of the relationship breakdown has been received, the case will be considered for cancellation and the visa will be curtailed to 60 days unless there are exceptional reasons to cancel permission with immediate effect or the individual has less than 60 days permission remaining. During the curtailment period, an alternative visa status can be sought via other permittable UK visa routes.

If there is a reliable indication that the UK visa holder has been a victim of abuse or domestic abuse at the hands of their UK spouse or partner, the curtailment will not be persuaded. This, however, excludes cases where the lead applicant holds a temporary UK visa (for example under the Point-Based System).

It is a common practice that the decision to cancel a UK visa is served via email but can also be sent by post to the last known address where the email address is not provided. It is advisable to regularly check a spam folder in the email account as the Home Office communication can land there.

In the most recent judgment on this matter [2024] EWHC 1097 (Admin), the claimant challenged the Home Office visa refusal on two grounds, one of them being the statutory presumption of service. The judge accepted that the curtailment decision served via email was capable of being rebutted, however, without any substantial evidence it was impossible to ascertain. The onus is on a UK visa holder to regularise their immigration status as soon as possible following the relationship breakdown, even, if they have been unaware of the reporting being made to the Home Office by the other party to the relationship.

This article is provided for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact us using the contact form or email us on reception@cnsolicitors.com

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Navigating Business Restructuring: Strategies for Success in Turbulent Times

Introduction

Due to the interconnected global economy, markets are experiencing significant disruptions causing turmoil and challenges for businesses and their stakeholders. Successfully guiding clients through complex restructuring and insolvency processes across borders demands not only experience but also a global presence, expertise in advising diverse stakeholders, and seamless coordination across legal domains.

Understanding Business Restructuring

Business restructuring is an important process that businesses go through to deal with tough economic times, adapt to changes in their industry, or fix internal problems. Making it work usually means making smart decisions, working together with everyone involved, and being ready to change how the business operates. This article looks at real examples of companies that have successfully restructured their finances, showing what they did and how it helped their overall business.

Legal Considerations in Business Restructuring

Legal considerations play a vital role in business restructuring. It is integral to business restructuring to encompass regulatory requirements and contractual obligations. Understanding the relevant regulatory framework is essential to ensure compliance with corporate governance, securities laws, and industry-specific regulations. Managing existing contracts may necessitate renegotiation or termination, whilst adherence to employment laws is critical, especially concerning workforce changes. Moreover, considerations such as intellectual property, taxes and environmental regulations must be carefully evaluated to avoid legal complications. A comprehensive grasp of the legal landscape is vital for effective restructuring, risk mitigation and regulatory compliance.

Steps in Business Restructuring

Preparing for restructuring is similar to laying the groundwork for a major renovation project. It involves a comprehensive examination of the company's financial health and operational efficiency, identifying areas that need improvement and devising a detailed plan to address these issues. This plan should outline specific objectives, strategies and timelines, serving as a roadmap for the restructuring process. Seeking input from financial advisors and legal experts can provide valuable insights and help anticipate potential challenges that may arise.

Negotiating and documenting the restructuring plan requires collaboration with various stakeholders, including creditors, suppliers and employees. This entails renegotiating contracts, restructuring debt agreements and formalising legal documents such as restructuring plans and employment contracts.

Throughout this process, clear communication, transparency, and attention to detail are essential to ensure everyone is aligned and the restructuring strategy is executed effectively. By carefully laying the groundwork and meticulously planning each step, companies can navigate the complexities of restructuring with confidence and achieve their desired outcomes while safeguarding the interests of all involved parties.

Conclusion

Navigating the complexities of business restructuring requires a comprehensive understanding of the interconnected global economy and the legal landscape. With expertise in debt finance, restructuring, and litigation, our team is well-equipped to guide clients through the intricacies of restructuring, safeguarding their interests and achieving long-term success.

This article is provided  for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact us using the contact form or email us on reception@cnsolicitors.com

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Continuous residence rule in the Long Residence applications

The main requirement for the Long Residence visa category is to spend at least 10 years in the United Kingdom lawfully. The word “lawfully” is defined as having valid permission to be in the UK, such as for study, work, family purposes (but not permission as a visitor or short-term student or a seasonal worker).

The 10-year period that includes time spent in the UK unlawfully is not covered by this post. More information on this can be found in Appendix Private Life.

Appendix Long Residence

The Statement of Changes (“SoC”) in Immigration Rules laid before Parliament on the 14^th of March 2024 (HC 590) introduced big changes to the Long Residence route. As such, a new requirement was brought in for applicants to have had their current permission for at least one year before attempting a settlement application under the Long Residence route.  In addition, it altered the way of meeting the “Continuous residence” requirement by introducing new absences calculation technique “for greater consistency across immigration rules” [quoted from the Explanatory Memorandum to the SoC (HC 590)]. Although consistency is a value of paramount importance, it remains questionable whether the primary legislation needed consistency in this particular instance.

The newest edition of the Immigration Rules for Long Residence visa route can be found in a recently introduced Appendix Long Residence, which replaced the provisions in Part 7 of Rules. It includes requirements for Permission to stay, Settlement as well as the Transitional arrangements for those, granted an extension of stay on the basis of Long Residence on or before 8 July 2012. The main difference between Permission to stay and Settlement routes is that in the latter, the English Language and Life in the UK test requirements must be met.

Historical background to “Continuous residence” requirement

The Immigration Rules for the Long Residence visa route were first laid before the House of Commons on 31 March 2003 (Statement of Changes HC 538). From there on, and until the 11^th of April 2024, ‘Continuous residence’ in the Immigration Rules was defined as:

“residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:

….

(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.”

In one of our past articles, we wrote about the Immigration Rules being interpreted differently by the Home Office and the applicants themselves, resulting in refusals and subsequent litigations. The article was focused on the correct interpretation of “existing leave to enter or remain upon their departure and return” within the definition of ‘Continuous residence’, setting out the case law that impelled changes in the Home Office’s decision-making practices. Some years later, the definition of “18 months” was challenged.

Historically, “18 months” was defined by the Home Office as being 540 days. The case  [2021] UKUT 65 (IAC) challenged this approach and brought the change to the interpretation of 18 months being 548 days.

Notably, the wording of the relevant paragraph of the Immigration Rules remained unchanged. However, the Home Office’s approach to applying the “Continuous residence” definition in the casework practices was revised.

With the new SoC (HC 590), the Home Office decided that there was time to change the primary legislation, that hadn’t been amended since 2003, and to do so in respect of the absences calculation under the “Continuous residence” requirement. With the new Rules, the 548 days became law rather than a guidance.  However, the new absences calculation technique has caused much confusion as the correct approach depends on when the 10-year qualifying residence is completed. The Home Office is known for introducing the requirements that are bafflingly complex and the new Rules under Appendix Long Residence have not been an exemption.

New absences calculation

As of the 11^th of April 2024, to meet the “Continuous residence” requirement, the time spent outside of the UK should be calculated as follows:

Essentially, the Home Office has given the prospective applicants more flexibility in terms of how much time they can spend outside of the UK during the decade in question. However, the concern now arises from the discrepancy in the wording of the Immigration Rules and the Home Office operational guidance in relation to the absences calculation. Such discrepancy is a potential pathway for litigations that, as history serves, may well alter the Home Office's decision-making practices in the future.

Note: This article was prepared on the 25th of April 2024 in line with the version of the Immigration Rules and relevant Home Office operational guidance in place on this date.

This article is provided  for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact us using the contact form or email us on reception@cnsolicitors.com

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How to navigate salary thresholds under the work visa routes

A new Statement of Changes to the Immigration Rules, laid before Parliament on the 14^th of March 2024, introduced a sharp increase to the minimum salary thresholds for work routes, including Skilled Worker, Health and Care, Scale-Up and Senior or Specialist Worker routes. In addition, the Shortage Occupation List was replaced by a new Immigration Salary List, specifying the occupations where a reduced salary threshold applies in the Skilled Worker route and the Standard Occupation Classification (SOC) code system was updated from SOC 2010 to SOC 2020. The Home Office has also introduced transitional arrangements for existing work visa holders.

This has resulted in the expansion of the Appendix Skilled Occupations from three tables to six and in the version of the Rules which is difficult to follow. The Home Office operations guidance, which was updated on the 4th of April 2024, is not much of a help. Moreover, there are noticeable discrepancies in the Rules and guidance as well as operational issues since the implementation of the new Rules.

There is a hope that the Home Office will address the identified issues promptly. In the meantime, this post intends to shed light on how to navigate different salary levels when sponsoring migrant workers on the work routes.

Transitional provision

The starting point is to identify whether the prospective applicant falls within the transitional provision. The transitional provision applies when:

• The prospective applicant was granted permission as a Skilled Worker before the 4th of April 2024 and they have had continuous permission as a Skilled Worker since, and the date of application is before 4 April 2030; or
• The prospective applicant’s Certificate of Sponsorship (“COS”) was assigned before the 4th of April 2024 and they have had continuous permission as a Skilled Worker since, and the date of application is before 4 April 2030; or
• The job is eligible for the Health and Care ASHE visa (some conditions apply). More information can be found in paragraph SW A1.1. of Appendix Skilled Worker of Immigration Rules; or
• If being sponsored under Table 2a of Appendix Skilled Occupations, the prospective applicant was sponsored by the same sponsor in the most recent grant of permission and the sponsor continues to sponsor them.

If any of the transitional provisions apply, the minimum salary threshold will be assessed against the following options:

Option F: £29,000 per year, £11.90 per hour and the going rate for the SOC 2020 occupation code

Option G (PhD in a subject relevant to the job): £26,100 per year, £11.90 per hour and 90% of the going rate for the occupation code

Option H (PhD in a STEM subject relevant to the job): £23,200 per year, £11.90 per hour and 80% of the going rate for the occupation code

Option I (Job is in the Immigration Salary List): £23,200 per year, £11.90 per hour and the going rate for the occupation code

Option J (New entrant): £23,200 per year, £11.90 per hour and 70% of the going rate for the occupation code

Option K (Job listed in Health and Education Occupation): £23,200 per year and the going rate for the occupation code (Table 3 of Appendix Skilled Occupations)

The going rate for Options F to J can be found in Table 2 of Appendix Skilled Occupations.

New salary levels

If the job does not fall under any of the above-listed options, then, new salary thresholds apply:

Option A: £38,700 per year, £15.88 per hour and the going rate for the occupation code

Option B (PhD in a subject relevant to the job): £34,830 per year, £15.88 per hour and 90% of the going rate for the occupation code

Option C (PhD in a STEM subject relevant to the job): £30,960 per year, £15.88 per hour and 80% of the going rate for the occupation code

Option D (Job is in the Immigration Salary List): £30,960 per year, £15.88 per hour and the going rate for the occupation code

Option E (New entrant): £30,960 per year, £15.88 per hour and 70% of the going rate for the occupation code

The going rates for Options A to E can be found in Table 1 of Appendix Skilled Occupations.

Changes to Global Mobility and Scale-Up Routes

Alike the Skilled Worker salary thresholds, the salary thresholds for the Global Mobility Routes have gone up. The good news is that the going rates for the Global Mobility Routes will continue to be based on the 25th percentile of roles within the relevant SOC code and can be found in Tables 2 and 2b of Appendix Skilled Occupations. However, the minimum salary thresholds have gone up from £45,800 to £48,500 per annum for Senior or Specialist Workers and from £24,220 to £25,410 for Graduate Trainee applicants.

Important to note that some SOC Codes which were eligible for sponsorship under the Global Mobility Routes are no longer eligible as of the 4th of April 2024. Such codes are now listed in Table 2b of Appendix Skilled Occupations and can be used by someone with permission on this route before the 4th of April 2024 and who is applying for an extension to continue working in the same role.

For the Scale-Up route, the general threshold has been raised from £34,600 to £36,300.

What is next?

By introducing the above changes, as stated in the Explanatory Memorandum, the Home Office intends to encourage UK businesses to invest in the resident workforce rather than over-relying on migration. This has been the aim for many years but changing the immigration policy has not [yet] brought the desired results.

What is certain is that the Immigration Rules are becoming harder to navigate even for experienced immigration practitioners and, coupled with the increase in Immigration Health Surcharge and other visa costs, it could be assumed that this could have been done intentionally to discourage businesses from employing foreign workforce.

This article has been published in line with the relevant Rules and policies that apply on the 24^th of April 2024.

This article is provided  for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact us using the contact form or email us on reception@cnsolicitors.com

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What happens if a fee waiver request has been withdrawn?

What happens if a fee waiver request has been withdrawn?

The answer to this question does not appear to be straightforward.

As a brief background, a fee waiver allows eligible applicants to partially or fully avoid the payment of the Immigration Health Surcharge and/or application fees. The fee waiver option was originally available to in-country applications only. In 2022, the Home Office changed the Rules to allow overseas applicants to apply but only in limited circumstances.

To become eligible, an applicant must demonstrate upon legitimate evidence that they cannot afford the visa application and/or Immigration Health Surcharge fees for a reason of being destitute or at risk of becoming destitute, or, the total income earned is not enough to meet the child’s additional needs. If granted, the actual visa application must be made within 10 working days from the date of the decision on the fee waiver request when applying within the UK or 28 calendar days when applying from outside the UK followed by the submission of biometric data. Important to note that only certain application types are eligible for a fee waiver and applications for Indefinite Leave to Remain in the UK (also known as settlement), even those based on human rights claims, are not eligible for a fee waiver.

The processing times for a fee waiver request have recently been subject to increase, making many wonder what happens if a paid visa application has been submitted whilst a fee waiver request remains pending. This all comes down to section 3(c) of the Immigration Act 1971, or as commonly known “section 3(c)”.

To put it simply, section 3(c) extends one’s permission to remain in the UK lawfully whilst their in-time UK visa application remains pending decision at the Home Office or until all appeal rights associated with an in-time refused visa application are exhausted. In relation to a fee waiver request, without going into many technicalities, if the request has been made before the expiry date of a valid UK visa, the applicant’s rights to remain in the UK lawfully continue at the time when the decision on a fee waiver application has been made and at the time when an actual visa application has been submitted, even if the visa validity already came to an end. But what happens if a fee waiver request has been withdrawn or a paid visa application is made whilst the visa has already expired but a fee waiver request is yet to be decided?

The simple answer is that section 3(c) will not be triggered which means that the person will be an overstayer once their UK visa comes to an end. This is because a fee waiver is not an application for leave to remain in the UK – it is merely a request for the UKVI fees to be waived.

Case study

On 5 November 2023, Tom submitted a request asking the Home Office to waive the payment of the Immigration Health Charge and UKVI fees in relation to his UK Spouse extension application. Tom’s permission to remain in the UK expired on 1 January 2024 and his leave was transitioned to section 3(c).

Tom then realised that on 7 February 2024, he accumulated 10 years in the UK. Tom decided to not wait for the outcome of his fee waiver request and on 11 February 2024 he submitted a paid Indefinite Leave to Remain visa application under the 10-year Long Residence route using an expedited service.

On 11 March 2024, Tom’s application was refused. The reason is that to be eligible for Indefinite Leave to Remain under the 10-year Long Residence, Tom had to demonstrate that he was lawfully present in the UK for a consecutive 10-year period. Unfortunately, making a paid visa application, Tom’s fee waiver request became void, making him an overstayer since 2 January 2024, and therefore, short of lawful 10 years of residence.

The wording in some of the Home Office operation policies might suggest that a fee waiver request submitted in time is treated as an application for leave to remain, however, since the fee waiver is not an application for leave, it cannot be varied.

In the wake of the incredibly high visa fees and legal costs, it is more important than ever to correctly interpret the Immigration Law and requirements to avoid any disappointment and unnecessary expenses. Our Immigration team can assist with very complex immigration matters including fee waiver requests. Contact us for a quick assessment.

This article is provided  for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact us using the contact form or email us on reception@cnsolicitors.com

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Revocation of the cohabitation requirement for a UK partner visa

For many years it was a standard practice to comply with the cohabitation requirement when applying as an unmarried partner to join a family member under various immigration routes. With the introduction of a new Appendix relationship with Partner that relaxed the definition of “durable relationship”, the relationship requirements under Appendix FM and Appendix FM-SE have now been brought in line.

The unmarried partner visa applies to couples that have been in a durable relationship (not married or in a civil partnership) for at least 2 years. In other words, the couple must demonstrate that they have been in a relationship similar to marriage or a civil partnership for at least 2 years before the date of a UK visa application. The unmarried partner visa option is available not only for partners or British or Irish nationals, persons with settled status in the UK, with protection status, with limited leave under Appendix EU and Appendix ECAA applying under Appendix FM and Appendix FM-SE of the Immigration Rules, but also for partners on the work and study routes.

As history serves, the requirement for unmarried partners in relation to “durable relationship” for many years was that the couple “must have been living together in a relationship similar to marriage or civil partnership for at least the two years before the date of application”.  This implied at least two years of cohabitation, regardless of whether the application for a UK visa is submitted within the UK or abroad.

With the introduction of an Appendix relationship with Partner into the Immigration Rules for applicants on work and study routes in 2023, the cohabitation requirement was abolished. Instead, the assessment is now based on the facts of each case, regardless of whether the couple have cohabitated or not.

On the 31st of January 2024, the same approach came into force for applications under Appendix FM and Appendix FM-SE of the Immigration Rules, which is rather welcome news.

As marriage is no longer required as a public display of commitment, unmarried partnerships have become very popular and have a very diverse form within and outside the UK. In addition, with technology playing a very prevalent role in modern society, it brings opportunities, enhances communication and provides couples with a new way of maintaining long-distance relationships. This is particularly relevant in some countries/cultures where cohabitation isn’t permitted or where same-sex relationships are not recognised or accepted. The Home Office’s implementation of cohabitation flexibility to the “durable relationship” requirement, therefore, is excellent news.

Where the couple has not cohabitated or has not lived together for some parts of the 2-year period, consideration will be given to the reason for living apart, level and frequency of communication, visits, joint holidays, events attended, financial support and evidence of joint care for children. There may also be cases where no documents can be provided in relation to a durable relationship. In such circumstances, the decision will be based on the facts of the case.

Our Immigration team has decades of experience assisting couples with their immigration matters, in particular, in complex cases where no or little cohabitation documents can be provided. Do not hesitate to get in touch for a brief free assessment or detailed legal advice.

This article is provided  for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact us using the contact form or email us on reception@cnsolicitors.com

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