All I want for Christmas is… for the UK to re-open for business

20 December 2019

Dear Father Christmas,

Further to the advice we provided in December 2017 regarding your ability to travel to the UK to deliver presents to children over Christmas, I am now writing to provide you with an update. This letter will focus specifically on your ability to travel, with a particular look at the current Brexit framework and some recent changes to the UK immigration system.  

The Current Position

As you know, as a Finnish and EU citizen, you currently have full rights to enter and work in the UK. This position remains the same now as it did in 2017, and will continue until the UK Brexits in a few weeks on 31 January (which now seems almost inevitable given the results of last week’s general election…I’m sure you’ve been following it in the news in between wrapping up presents). 

Post-Brexit - Transition Period

After Brexit, the current framework provides for a period of transition which, at the moment, is set to remain in place until 31 December 2020.  During this transition period, EU free movement will continue, meaning that Christmas 2020 should remain hassle free for you and your elves (provided they too are EU citizens). 

Unfortunately, the position post-Christmas 2020 remains uncertain. Although the Prime Minister is trying to prevent it, the transition period may be extended by a year or two, given that Brexit has now been pushed back significantly since the original dates were agreed. However, as it stands at the moment, Christmas 2020 looks to be your last chance to travel freely to the UK to deliver presents. 

To avoid a nation of sobbing children on Christmas Day 2021, our advice therefore remains the same now as it did before – that you seek to establish a UK outlet before the end of the transition period. Your UK outlet would be able to employ EU citizen elves as normal until the end of the transition period, during which time you and your elves resident in the UK could potentially apply to register under the EU Settlement Scheme for pre-settled status. 

Also important to note is that, in order to qualify for settled status after 5 years you will need to have been residing in the UK. Regrettably, this may mean having to pack up shop in Lapland, in order to demonstrate to the Home Office that you’ve lived in the UK for five continuous years – i.e. that you have been in the UK for at least 6 months in any 12 month period (unless you can demonstrate that you were outside the UK for an ‘important reason’ – perhaps for an ‘overseas work posting’ to care for your reindeer?).

After the Transition – New Immigration System
EU citizens wishing to come to the UK after the transition period will need to apply under the UK Immigration Rules. Our government is talking about having a new ‘Australian style’ Points Based System from after the transition period ends. At the moment, it is unclear to what extent the current Immigration Rules will be overhauled, or whether they will remain largely the same as they are currently. The advice below is based on the options available to you under the current Immigration Rules – which are unfortunately rather limited, and have been amended since you last sought our advice.

First and foremost, it is important to consider whether your activities in the UK would amount to ‘work’ under the existing Immigration Rules. If not, you should be able to come to the UK as a visitor and would not need to obtain a specific ‘working’ visa. Whilst there are a few types of permitted business activities into which your activities may fit (carrying out site visits? Making (unseen) personal appearances and taking part in (covert) promotional activities?), it could easily be said that your activities do amount to ‘work’. If this is the case, you would be required to obtain appropriate permission to come to the UK post-Brexit.

The second question we need to consider is whether you would be classified as employed or self-employed. Whilst this is ultimately a question of employment law, it would seem that, on the face of it, your entrepreneurial spirit places you within the self-employed category.  However, unfortunately, the Tier 1 (Entrepreneur) route was abolished earlier this year, and in its place the Start Up and Innovator categories were established, albeit there have been very few such applications submitted.

Options for your UK business

The Start Up visa effectively replaces the Graduate Entrepreneur route, and is predominantly only for university graduates. Given that you are not currently at university, you are unlikely to be able to find anyone to endorse you under this category. 

Similarly, the Innovator visa requires you to have £50,000 to invest in a new business, which must be ‘innovative, viable and scalable’. Your business of delivering presents to children across the world in less than 24 hours is undoubtedly innovative – it meets existing market needs (which are unlikely to ever disappear) and you certainly have a competitive advantage. It is also clearly a viable business, given that you possess the necessary skills and experience to make it a success.  However, the question of scalability may be where the application fails, as you would need to provide evidence of structured planning and the potential for job creation and growth into international markets. Arguably, the ever increasing global population will create a demand for further elf jobs; however, it could be said that, since you will not actually be selling products here commercially, there is no realistic prospect for growth. Given how difficult it can be to meet these criteria, it’s of no great surprise there have been so few applications under this visa category.

Further, without wishing to devalue your elves’ incredible talent, even if you were able to obtain a Start Up or Innovator visa, it remains unlikely that you would be able to sponsor your elves to work in the UK under the Tier 2 categories, given that it is not possible to sponsor what our Home Office may deem to be ‘lower-skilled’ workers. That said, there may be hope given there are plans to lower the required skill threshold in the post-Brexit system. Fingers crossed. 

In summary, it is starting to look like the UK is increasingly closing up for business, leaving you with very few options under the existing Immigration Rules. The restrictive requirements of the Start-Up and Innovator visas are deterring otherwise creative entrepreneurs, leaving them with little choice but to look to the Tier 1 (Exceptional Talent) visa.  However, as advised previously, despite your international status as a gravity and time defying magician, you would not qualify under this category as it only applies to those working in sciences, the arts or technology. And unless you have £2 million knocking around in your sleigh, you wouldn’t qualify for the Tier 1 (Investor) visa, either. 

I appreciate that the above is a less than encouraging summary of the current UK immigration system, and emphasises just how few options there are for those wishing to come and work in the UK. I hope you are nevertheless able to have an enjoyable Christmas, and that when you next seek our advice, the UK’s business immigration routes will be looking slightly brighter. 

Yours sincerely,
Josephine Burnett
Immigration Solicitor, Kingsley Napley LLP

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