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

Latest blogs & news

Nationality and Borders Bill shows questionable priorities

The Nationality and Borders Bill, the government’s signature piece of legislation on immigration, shows questionable priorities at a time when the UK is in the midst of a wider immigration crisis.

Extradition post-Brexit: plus ça change, plus c’est la même chose?

Rebecca Niblock and Edward Grange examine the key changes & similarities to extradition law following Brexit. The introduction of new surrender arrangements under the EU-UK Trade and Cooperation Agreement. Changes effected under the Extradition (Provisional Arrest) Act 2020.

The Tail Wagging the Dog - Hourly Rates Review 2021

The Master of the Rolls, Sir Geoffrey Vos, has approved the new guideline hourly rates (GHR) proposed by the CJC and the Stewart committee which will come into effect on 1st October 2021.
These new rates are a result of the final report of the Civil Justice Council released at the end of July 2021 and the forerunning consultation that took place between 8 January and 31 March 2021.

 

 

Why it’s time for youth mobility visas for EU nationals

The Youth Mobility Scheme allows employers to access younger workers from countries such as India and Iceland for two years. With skills shortages afflicting critical sectors, now might be the time for the government to consider a youth visa agreement with the EU.

Covid and post-Brexit immigration rules serve up a recipe for disaster in the hospitality sector

From being the centrepiece of England’s post-Covid recovery with ‘eat out to help out’, the hospitality sector is now struggling to rebuild after lockdowns, furlough and rising food prices. At the same time many restaurants, cafes and pubs are coming up against the hard realities of a post-Brexit immigration policy and discovering what it means for their business.

(In)definitely maybe – when indefinite doesn’t quite mean indefinite

You have come to the end of your long immigration journey, paid thousands of pounds to UKVI to obtain permission to enter, permission to stay and then, finally, indefinite leave to remain (ILR) (also called settlement). When obtaining ILR, individuals may understandably breathe a sigh of relief – it’s over! For many who, for various reasons, choose not to naturalise or register as British, ILR can provide adequate status to live and work in the UK permanently.

What next for EU citizens in the UK?

The vast majority of EU, EEA, and Swiss citizens who were UK residents by the end of last year were able to apply to the EU Settlement Scheme by the 30 June 2021 deadline. Applying to the EU Settlement Scheme meant that an EU citizen could stay in the UK for the long term.

Missed the EU Settlement Scheme deadline? FAQs on what to do next

The deadline to apply to the EU Settlement Scheme (“EUSS”) was 30 June 2021. But for those who missed it – all is not lost. The Home Office will continue to accept applications from individuals with ‘reasonable grounds’ for having missed the EUSS cut-off point. In this blog, we explore what might constitute a ‘reasonable ground’ and consider the legal implications for those who have fallen short of the deadline.

The Home Office has shown efficiency and innovation in dealing with EU nationals-it now needs to show its humanity

In February 2019, shortly after the launch of EU Settlement scheme for EU nationals to apply for their UK status, my colleagues and I visited one of our global media client’s offices to present on the new EU Settlement Scheme at a town hall meeting with all of their EU national employees. 

eSports vs. the Law

Gone are the days of computer gaming being viewed as a secluded activity; gaming is now a thoroughly social experience that attracts a global audience of millions and players can compete for large sums of money and celebrity. This burgeoning industry is largely in a virtual world and has developed in a blockchain, decentralised fashion. Often the UK government talks up the UK gaming industry and how keen the government is to support this sector, and there have been instances that show support, but when it comes to playing games competitively, law and regulations have not yet caught up.

Final countdown to the EU Settlement Scheme deadline

The UK left the EU in January 2020, in accordance with the Withdrawal Agreement there has been a grace period in place since 1 January 2021 which ends on 30 June 2021. The basis of the grace period is that those EU citizens (and EEA and Swiss citizens) who were residents in the UK on or before 31 December 2020 have until 30 June 2021 to apply to the EU Settlement Scheme. 

EU Member States’ reluctance to extradite their own nationals to the UK

Perhaps the first practical negative consequence for the UK to emerge “Beyond Brexit” from an extradition perspective relates to Article 83 of the TCA which allows EU Member States to refuse to extradite their own nationals to the UK. Germany, Austria and Slovenia had already exercised the Nationality bar during the transition period, which ended on 31 December 2020.

Throwing a spanner into football’s European Super League plans using immigration laws

The furore around the announcement by a number of football clubs of their intention to create a European Super League has led to governments displaying their opposition to the idea and issuing threats on the legislative leverage that could be used to stop the breakaway league from getting going.

CQC and EHRC publish new memorandum of understanding agreement

On 9 March 2021, the Care Quality Commission (“CQC”) and Equality and Human Rights Commission (“EHRC”) published a new memorandum of understanding agreement (“the MoU”). The MoU seeks to increase the effectiveness of the two organisations’ work in safeguarding the wellbeing and rights of people receiving health and social care in England, through developing a supportive framework and strategic partnership.

UK budgets for yet more immigration changes

Any sense of a post-Brexit slowdown in UK immigration changes was quickly swept away last week with a thorough spring clean and polish to a wide range of rules.  As is commonly the case at this time of year, a statement of changes in the Immigration Rules was released in advance of 6 April when many of the changes will come into force. We set out the main changes below and also include a quick summary of the headlines from the Budget on how new immigration categories aim to assist with the economic recovery.
 

 

Best practice guide for charities responding to Illegal Working Civil Penalty Information Requests

COVID-19 has had a severely damaging affect on all organisations and no less so those in the charitable sector.  Be that on a dramatic hit to donation levels, resourcing issues through furloughing or redundancies and difficulties in delivering programmes and training.  In a battle to survive and deliver on core services, it is easier than ever to forget crucial internal risk and compliance processes. 

COVID-19, Trafficking, and Vulnerability

The COVID - 19 pandemic will certainly go down in history as one of the worse periods in modern times. Many of us will have stories to tell the future children about a time when the world was held to ransom by the pandemic and people were forced to stay home and could only leave if they had a legitimate reason, such as going out for medicine or food. So, what of those who are “home” but, don’t have the choices we do? 

Switching from Tier 2 to Global Talent

The Tech Nation Visa (officially known as the Global Talent visa) enables the brightest and best tech talent from around the world to come and work in the UK’s digital technology sector, contributing their cutting-edge expertise, creativity and innovation to maintaining the UK’s position at the forefront of the global digital economy.

Frequently Asked Questions on the Hong Kong British National (Overseas) visa

The Hong Kong British National (Overseas) (BN(O)) visa has officially opened for applications on 31 January 2021. Given the circumstances surrounding the introduction of the BN(O) visa, it is quite understandable that applicants may still have questions about this visa route and personal considerations on applying. 

In this blog we answer some of your most frequently asked questions about the BN(O) visa to help you consider whether this is the right UK visa path for you and your family. Our earlier blog also details the key highlights of the visa.

 

Extradition post-Brexit: the TCA at a glance

The potential fallout from Brexit for extradition and cross-border criminal justice security had been forewarned even before the first vote was cast in the Referendum. The risks to the UK of losing access to SIS II and complicating a relatively simple (albeit not perfect) EAW process were highlighted by many practitioners, law enforcement agencies and politicians.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility