UK Business Visitor visas-when does a Business Visitor cease to be a visitor and become a liabilty?

In multi-national corporations with connections to the UK the use of the UK Business Visitor Visa has become an essential way of ensuring that businesses run smoothly. Employers and Employees are able to visit the UK to attend business meetings, undertake specific one-off training sessions and provide consultancy amongst other ‘permissible activities’.

However in recent years a huge question mark has arisen over the potential for misuse of the Business Visitor visa. Indeed, there does appear to be a thin line in relation to what constitutes merely a ‘visit’ and what could be perceived as ‘work’ . There is now an increased risk to UK businesses and employers who may face severe penalties should they be found to have such persons deemed to be ‘working’ unlawfully in the workplace.

So what constitutes permissible activity under a Business Visitor visa and what can you do to ensure that ‘Visitors’ stick to visiting and do not cross the threshold into ‘work’? Further, with increased Business Visitor visa refusals by British Embassies around the world, what steps should you take to improve your chances of employees being able to attend that important meeting or training in the UK without facing a visa rejection?

In this article we will focus on Business Visitor visa types which are applicable to most UK Companies and the extent of activity that can be carried out under this visa.

In order to qualify for a Business Visitor visa the UK Immigration Rules require each business visitor to meet the following basic requirements:

to be visiting the UK on a business visit for a maximum of 6 months (unless attending as an academic visitor where leave will be given for up to 12 months)
intends to leave the United Kingdom at the end of the period of the visit
does not intend to take employment in the United Kingdom; and
does not intend to produce goods or provide services within the United Kingdom, including the selling of goods or services direct to members of the public; and
does not intend to undertake a course of study; and
will maintain and accommodate himself and any dependants adequately out of resources
can meet the cost of the return or onward journey

The rules make it clear that the visitor must not be taking up employment or providing any services in the UK. In this regard we recommend that it is usually good practice to enclose with the visa application a letter from the country where the visitor is currently based to prove that she or he is in employment and will be receiving a salary from that country whilst he ‘visits’ the UK for business. The letter should also confirm the purpose of the visit to the UK and its duration. We would also recommend that the ‘Host’ Company in the UK provides a similar letter in support outlining the specific arrangements in the UK.

Whilst most Business Visitors and their current Employers and UK hosts are familiar with the above, it is notable that once arriving in the UK, many are then unsure as to what they are permitted to do in the work place. For example, does sitting at a desk in the workplace speaking to clients constitute consultancy work or a ‘permissible’ business activity’ or is this indeed ‘work’ requiring the employee to obtain the relevant visa to enable them to work in the UK (Tier 2 General or Tier 2 ICT Visa) . When CEO Mr Smith attends his UK office from his US headquarters and sits in the company’s UK office in Manchester, is this a ‘business visit’ or is your CEO working illegally?

So what are permissible activities? Generally speaking Business Visitors are allowed to attend meetings, conferences and interviews in the UK providing there is evidence that these were arranged before arrival in the UK. Business visitors are also allowed to negotiate and arrange deals or sign agreements and contracts. However Board Level Directors attending board meetings in the UK must not be employed by the UK Company although they can be paid a fee for attending the meeting. Business visitors may also speak at UK Conferences as long as it is not for profit and it is not organised as a commercial concern. There are therefore a wide range of activities that a Business Visitor is permitted to do; however, it is quite clear that permissible activities are limited to merely meetings, negotiations and closing deals. Sitting in an office and working at a desk like an ‘employee’, supervising an office, dealing with staffing issues and earning a salary in the UK from the UK; all of these will compromise the position of the ‘Business Visitor’ and the UK Host Company.

It is also possible for advisers, consultants, trainers and trouble shooters to provide advice and training at the UK branches of their current overseas employer. They must again at all times remain employed and paid by their overseas employer. A document outlining this arrangement is advisable and will ensure that all parties are aware of the limits to their Business Visitor visa and how far they can go. We recommend that proof should be provided in relation to the ‘common link’ between the UK Company and Overseas Employer and hence it is advisable to prepare a schedule of activities.

It is therefore important for Business Visitors and UK Host Companies to agree the scope of the activities to be carried out before the Business Visitor arrives in the UK and for companies to ensure that the Visitor adheres to these duties. Indeed, we are aware of situations whereby UKBA, during post licence audits, have requested specific information in relation to Business Visitors at the workplace.

We believe that the Business Visitor Visa, when used properly, is an excellent way for overseas assignees to move around and contribute their knowledge and negotiating skills at key meetings, training sessions and business deals at companies within the UK. This provides a valuable resource to UK companies without the need for the Visitor to be a member of the UK workforce and obtain a Tier 2 visa. However, it is very important that all parties are aware of the limits imposed by the Business Visitor Visa and the factors which are taken into consideration by UKBA when granting such a visa. Notably, we recommend that appropriate documents are included at the outset of the visa application process which will not only facilitate the acquirement of the visa but will also act as a clear agreement between the visitor and UK company as to the exact nature of the visit to the UK, thus hopefully avoiding any potential UK immigration breaches.

By Anita Pali