In this series we discuss the opportunities, trends and challenges that Brodies' experts experience when working internationally.

From understanding the latest UK visa types to knowing when to submit an application, the timing considerations when applying Brodies' employment and immigration law experts, Elainde McIlroy an Erin McLafferty discuss all that inward investors need to know when setting up a business in the UK.

Listen to our previous podcasts on Apple Podcasts, Spotify or wherever you usually listen to your podcasts by searching for "Podcasts by Brodies".

The information in this podcast was correct at the time of recording. The podcast and its content is for general information purposes only and should not be regarded as legal advice. This episode was recorded on 07/10/2022.

David Lee, Podcast host

David Lee hosts Podcasts by Brodies. David is an experienced journalist, writer and broadcaster and he is also the host of 'The Case Files' and 'What do I do if...' podcasts by Brodies.

David Lee, Podcast host]



00:00:05 David Lee, Host

Hello and welcome to ‘Podcasts by Brodies’. My name is David Lee and in this series we're discussing the opportunities, trends and challenges that Brodies' experts experience when working internationally. Brodies' lawyers are globally connected experts in their fields, advising clients across all key sectors from real estate to education, energy, food and drink, life sciences and even personal and family matters.

Today we're discussing immigration and specifically UK visa routes, something of a hot topic in recent times. I'm joined for this episode by two immigration and employment law experts from Brodies, partner Elaine McIlroy and associate Erin McLafferty. Welcome to you both.

Elaine, we're in a time of great change for UK immigration rules and visa routes are right at the heart of this change. So first of all, what do we mean by visa routes?

00:01:04 Elaine McIlroy, Partner

A visa is something that a non-British/non-Irish national would need if they wanted to come to the UK to live and work.

There is a whole range of different types of visa, each of them have got their own criteria and requirements that go along with that. A visa is a form of permission to come and live and work in the UK and usually somebody needs to complete a form, pay a fee, send off information etc. to get that visa.

00:01:33 David Lee, Host

We're talking a lot in this podcast about inward investors, what do we mean, Elaine, by inward investors in the context of this discussion about visa routes?

00:01:43 Elaine McIlroy, Partner

An inward investor can cover a range of different scenarios, but we're using it here to mean somebody who wants to come to the UK to set up a business and that might be a business that's already operating overseas that wants to develop its business in the UK or it might even be somebody starting up their business for the very first time.

Usually it's someone coming from overseas to the UK to establish a business of some sort, and that's where the visa comes in, because they need some sort of permission to do that when they get here.

00:02:15 David Lee, Host

What about an example? What might a typical inward investor want to set up in the UK look like? Let's have a scenario.

00:02:25 Elaine McIlroy, Partner

For example, it could be a US owned business that's maybe operating overseas, it could be a tech business for example. They decide that they want to establish some sort of presence in the UK, maybe to access the UK and the rest of Europe in terms of markets and to develop and sell that product.

So they might decide that they want to send either one person to the UK to develop that business, or possibly a small team and that's where the visa comes in, because they'll need some form of permission for those people to do that.

00:02:57 David Lee, Host

Thanks very much. Erin, just bring you in here. What are the challenges that these inward investors might face if they want to set up in the UK and they need a visa or visas for a team to come here?

00:03:12 Erin McLafferty, Associate

There are a number of things for inward investors to be thinking about when they're setting up a business in the UK.

One of the main things that we see, that's an issue for inward investors, is that they don't tend to have the same infrastructure in place as a more established business might have. For example, they may not have a company incorporated in the UK, they may not have any UK based staff or they may not even have things like bank accounts set up for the UK. From a visa perspective, that can impact the options open to them.

One of the most common options that there is a skilled worker route, which is a really common route for UK entities to sponsor migrant workers in the UK but if they don't have that infrastructure in place that I mentioned, then the skilled worker route may not be an option for them and that's because becoming a licensed sponsor under that route requires having a UK based bank account.

There are numerous other routes in place that don't require having a license. So there's things like global talent visas, which are for experts in certain qualifying fields. There's global business expansion worker, which allows overseas businesses to send workers to the UK and also things like high potential individual visas. There are lots of different routes out there for investors to think about that don't necessarily require that infrastructure from the outset as well.

00:04:32 David Lee, Host

Elaine, you mentioned technology specifically, have we got a lot of tech companies looking to come and set up over here and is it different? Are the considerations different if you're working in a particular sector, like technology, or are the rules the same for visas across the board?

00:04:54 Elaine McIlroy, Partner

We do get lots of enquiries from businesses in the tech sector that want to send people here to establish a business here, so that is a fairly common route or common sector that comes for advice.

In terms of whether it makes a difference, in terms of visa options…yes, it can do, because some types of visa category are designed specifically for people with certain fields of expertise. So for example, the global talent visa that Erin mentioned, one of the options there is for somebody to have a background in the field of tech and they apply to get endorsed as an expert. So that's a visa route that is open to people with that sort of sectoral expertise that might not be available to other people that work in different areas.

For other types of visa route, the sector isn't so relevant so some visa categories just depend on what your qualifications are, like the high potential individual visa that Erin mentioned. Others depend on things like nationality. There's some visa routes open to Europeans, for example, or Commonwealth citizens. So for some types of visa the sector matters and for others it doesn't. Each of these visa categories have all their own eligibility criteria, and there's quite a lot to navigate there if you're coming at it afresh from overseas and you don't know about the UK immigration system.

00:06:15 David Lee, Host

You've mentioned technologies, are there any other particular sectors, Elaine, that you see a lot of interest in coming to the UK? Are there any other sectors of the economy that you've seen a lot of activity in?

00:06:28 Elaine McIlroy, Partner

There's lots of sectors that are busy, any areas where there's skills shortages, we tend to get inquiries from. Tech is a common one, but there's others like life sciences for example. I would say it spans a range of different sectors, but we do get inquiries across the board.

00:06:54 David Lee, Host

Erin, you talked there about some of the things that have to be put in place when you start thinking about visas. What about timing? How long do you need to do these things?

Very often do you find that clients are coming to you where there's quite an urgency to do it and how long in advance should you be thinking if you want to come to the UK and you have visa issues that need to be resolved?

00:07:20 Erin McLafferty, Associate

We do see clients come to us at all different stages of the process in terms of coming to the UK, but I would say the best advice is always to plan ahead.

Generally, the more time that you have to play with, the more visa options are going to be open to you. Timing can be really critical for certain visas, so as I touched on previously with the skilled worker visa, you have to go and get a sponsor licence first - that can take a couple of months in itself.

If you're going under the global talent route, you might need to go and get endorsement.

So, if you've got time to play with, it does generally mean you've got a lot more options.

The visas themselves, once any of the initial stages are completed, usually take around three weeks, so that can be turned around quite quickly. I would caveat that by saying UK visas and immigration are subject to pretty substantial delays at the moment, so give yourself as much time as possible is always our advice because it can help make sure there's as many options open to you as possible.

00:08:20 David Lee, Host

Elaine, this does sound quite challenging, there's a lot to think about here. Would you say that, broadly speaking, the UK's visa options are easy to access and understand for inward investors? Or is it quite maelstrom to navigate?

00:08:38 Elaine McIlroy, Partner

It can be quite complex, especially if you're starting from scratch without any knowledge of the UK immigration rules, to look at all the different options, weigh up the different criteria that apply to each, and timing can be an issue, some might be quicker routes than others in terms of the process that you've got to go through so there is quite a lot there to digest.

There's quite a lot of information online on the UK government website, so if you're prepared to spend the time reading, the information is out there. There are lots of different visa routes and the UK is generally open for business if you're going to come to the UK and create jobs and invest, there will be usually a solution for you and that information is there. Sometimes getting some assistance to sort of work your way through those options and maybe narrow them down can be helpful.

00:09:32 David Lee, Host

What changes have we seen, Erin, over the last year or so? There have been changes to the visa rules in the UK. Has that made it more challenging or less challenging for inward investors looking to relocate here?

00:09:51 Erin McLafferty, Associate

There's been a whole host of different changes. There was some significant changes at the end of 2020 to coincide with the Brexit transition period coming to an end and came out of those changes with a system that was a lot easier and faster than before, which was positive.

In the last 12 months, we've seen the creation of a few new visa schemes or the rebranding of some existing schemes. We had the global business mobility routes open in April, which is an umbrella route that has numerous different sectors within it that allow multinational companies to move staff to the UK either to work or to set up a business if required.

We also saw the high potential individual visa route that we've mentioned before, but that only opened in May, that's for graduates of certain prestigious universities globally to come and work in the UK for two years, sometimes three years.

And then we also saw scale up visas open in August, they are more niche, and they are for scale up companies to bring kind of highly skilled workers to work for them in the UK.

I would say that the UK is currently negotiating a number of trade deals, which some people may have seen in the press, that may lead to new visa routes being opened in the future. A really critical part of those negotiations will come down to visas as well, so I guess watch this space on that one.

We're expecting the youth mobility visa route to be expanded for Indian nationals later this year, so again, it's just keeping an eye on it because things are changing all the time.

On the whole, these changes have been positive in the sense that there's more visa routes than ever, which is a great thing, but it can make things more complex for someone looking at their options. As Elaine mentioned, if you've got the time to go and look at all the visa categories on the website, then then it might be okay, but it can be quite hard for an individual to navigate that.

00:11:46 David Lee, Host

You've touched on some of the areas there, you've touched on the high potential individual visa and a number of others, is it easy for inward investors to figure out what is appropriate to them or is that one of the areas, Elaine, where they potentially need some advice on which of the visa routes is appropriate to their business?

00:12:07 Elaine McIlroy, Partner

Advice probably does help, it maybe does help cut through all of those different options. As I said before, each route has got own eligibility criteria, so some businesses wouldn't be able to go for certain types of visa. Whittling down those options to the ones that are suitable for you, advice definitely helps with that, and knowing the pros and cons of each of the routes.

Some of the routes we've mentioned and talked about today are temporary routes, so high potential individual route only allows you to come to the UK for two or three years, and then you've got to move into a more permanent route. For say, an inward investor to the UK, that might be a major downside if they're going to invest money, start up a business, they might want more certainty than that. Knowing those pros and cons is important and again, advice might help you cut through some of that information and think ‘either I need a more permanent route at the start’ or ‘I need a plan to move into a more permanent route after that initial two or three-year period’. Advice is going to help do that more quickly than trying to figure it out.

00:13:09 David Lee, Host

Let's say an inward investor has decided which visa route they’re going to go down. What about the nitty gritty, Elaine? What about the application process in terms of applying for visas is that is that straightforward and is support needed there and how and who manages that process?

00:13:30 Elaine McIlroy, Partner

The process for each of the different routes sort of differs, so Erin mentioned earlier, some routes you need to get a licence in place before you can start to go down that route, for others, you don't need a licence. For others you might need to go and get endorsed, say for the tech visa that we're talking about, there's a body that you apply to get endorsed as an expert.

So each of the routes is a little bit different, but ultimately there will be a visa application form, information that's submitted, a fee that's paid, and then the individual applies from the visa application centre in the place that they currently live. So if they're in Canada, they would apply there, send off their paperwork and wait for a decision.

Erin mentioned earlier, timing has been a big issue lately, and that's partly because the Ukraine crisis has caused quite a lot of delays in visa processing times. So before they were quite predictable and you could have a good idea how long the visa application itself was going to take. Those have been delayed considerably because of resources being allocated in a different direction. So, timing has become more of an issue for lots of businesses wanting to send people here over the past few months because of that, but hopefully that's started to get a bit better.

00:14:46 David Lee, Host

Is it possible, Erin, to say how long it is going to take? Or is that completely dependent on the type of visa you know?

As you both mentioned earlier, there have been some delays recently. What is a typical period that an inward investor might expect to wait once the visa application goes in? Or is it a question of how long is a piece of string?

00:15:09 Erin McLafferty, Associate

It does depend on the visa type they're applying for, there can be some kind of initial stages that need to be done before the point of making a visa application. At the moment the headlines are always up to three weeks processing for a visa from outside the UK, but actually, as Elaine mentioned, that the processing times have become a bit unpredictable, so while that's still the message that's sent in some countries, for some clients, we're seeing waits that are considerably longer than that, up to 3-4 months in some cases. We are seeing certain priority services be reintroduced, which clients can utilise if they're in a rush, and that can sometimes help bring more certainty to the process if that's needed.

00:15:54 David Lee, Host

We are in an ever-changing field here. You've talked about a lot of changes that we've seen over the last couple of years and there are constantly reports in the media about more changes to deal with skills shortages in the UK labour market. What might any future changes look like, Erin, and how might they impact on inward investors?

00:16:17 Erin McLafferty, Associate

With the new Prime Minister being appointed, there has been some news and comments about changes that might be coming in the future. There has been some comments about the skills shortages that the UK is experiencing in some sectors and there was a review being undertaken on the shortage occupation roles in the UK for sponsorship, and that's all being put on hold pending the new Prime minister's policy decisions on age.

We've also got a new Home Secretary, and there's also been comments made that maybe some changes are coming from her. At the moment we don't have any detailed policy, so we don't have any specific ideas of what's being considered, but it is possible that changes are coming again. It is important to watch this space, keep up to date with the immigration policy in the UK, if it's somewhere someone is thinking about relocating to, whether or not it's helpful to inward investors or not remains to be seen. It will all depend on what the new Prime Minister decides on that.

00:17:18 David Lee, Host

Elaine, generally both of you have touched on the fact that you think some of the changes have made it a little bit easier for inward investors to come to the UK. We move into a new political regime, maybe a little bit more instability, how would you assess the current climate for inward investors? Do you think there's always uncertainty when there's a change? Do you think the rules that we have at the moment are in pretty good shape to address the skills shortages we have?

00:17:49 Elaine McIlroy, Partner

For inward investors there are lots of good visa routes out there and most of the time we will find a solution, if we're posed with some sort of scenario about how to get somebody here, usually one route or the other will provide a solution that's rare that we can't find any solution at all, because there are a whole bunch of different routes with different pros and cons, but usually we do get there.

Uncertainty is difficult for anyone trying to plan, especially if somebody's thinking of setting up a business, investing here, sending people, spending money, they want to know what the visa situation will be in six months time, for example. Hopefully it won’t be that different than what we've got today, but people have got to throw into the mix the possibility that there could be some changes, and it's difficult to know if the UK is going to be more open in terms of immigration or less so.

I think for inward investors who are going to spend money, create jobs, etc, hopefully the UK always have some kind of solution in terms of visa routes there and in terms of skills shortages, more broadly, there are lots of businesses experiencing shortages in certain areas and that is something that is being looked at. There's an element of policy in terms of what decisions are made about that. For highly skilled, highly paid jobs the doors always do seem to be open, but when it comes to lower skilled, lower paid jobs that's where it can be more tricky. We will see what happens, as Erin said, and hopefully things will become clearer over the coming months.

00:19:27 David Lee, Host

Erin just to come back to you, finally, can you summarise your advice to anyone who finds themselves caught up in the maelstrom of visa routes and the changes?

What's the broad advice that you would give to anybody who is an inward investor and looking to come to the UK, who will need to have visas to bring themselves and potentially staff in as well?

00:19:52 Erin McLafferty, Associate

Plan in advance, think early on before you're relocating to the UK about visas.

Quite often we have clients come to us quite late in the day, and as I said, that can just severely restrict options open. It's also worth thinking about, longer term options, as Elaine touched on, there are quite a lot of temporary routes out there that can be great for individuals, getting them over here and letting them set up, but for people who are making big life decisions and big financial investments or financial investments at all in the UK, it does make sense to always be thinking ahead about making sure that you can kind of seamlessly remain here, continue with your business, etc.

That forward planning is always important, and probably something that individuals should take advice on if they're unsure to make sure that they've got that continuity and security in the long term.

00:20:46 David Lee, Host

Elaine, any final thoughts from you?

00:20:48 Elaine McIlroy, Partner

One of the changes we've maybe not touched on so much is the UK expansion worker category that came in over the last few months.

That is a recent change that's had a significant impact on inward investors because of the need to get a sponsor licence before you send someone here, the route that that replaced didn't used to need a sponsor licence in advance, so it adds to that message about plan early, take advice, know what it is you need to get in place because there may be changes like that that have an impact in terms of when you're going to be able to come to the UK and set up etc.

Planning in advance is probably the best advice.

00:21:36 David Lee, Host

Thank you very much to Elaine McIlroy and Erin McLafferty for their excellent insights. Today, you've been listening to ‘Podcasts by Brodies’, where some of the country's leading lawyers share their Enlightened Thinking about issues and developments impacting the legal sector and what they might mean for organisations, businesses and individuals across the various sectors of the UK economy.

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