The closure of the Tier 1 Entrepreneur visa category in March 2020 forced overseas entrepreneurs to consider other ways to enter the UK to expand their business.

Business is possible to appoint a representative to the UK to expand the business and establishing a branch office. Many prospective sole representative applicants were usually the founders and owners of the parent company who wish to expand the parent company's business without moving them here. The best person to open a branch or subsidiary in the UK was a person high up in the hierarchy chart, possibly an owner, co-founder, or a person with control. It may be the case that the proposed representative could pass off their responsibilities and control to others in order to enable a branch to be opened in the UK, under this route.

Paragraph 144 of the Immigration Rules of Sole Representative visa was placed very simply to review the parent company. However, the amendment in June 2020 re-orientated consideration is from the parent company to the sole representative applicant.

The UKVI makes a subjective and evaluative assessment in the name of a "genuineness" test to address the possibility that there may be inauthentic companies and applicants. It also takes into account the company's business planning or the skills, knowledge, experience, or the ownership and control of the company held by the spouse or partner of the person appointed as the representative. In addition, if the visa application is considered as a mere way to facilitate the applicant's entry or stay, it may be refused.

The amended rules do not specify in detail what items are reviewed to evaluate this genuineness. From careful reasoning through various cases and amendments, the Home Office seems that they want to push for the mere employee to move, ideally one with no control or ownership of the parent company.

To ensure legal certainty and subsequent constitutionalism, immigration rules must be applied with sufficient precision and predictability to allow applicants to foresee the circumstances in which the law would or might be applied and regulate their conduct accordingly.

The amended Immigration rules of Sole Representative stipulate all factors to consider when considering applications from overseas business representatives. However, before the amendment was announced, it was clear that the UKVI was considering irrelevant factors expressed in "genuine" and "credible" phrases beyond the described requirements.

In some cases of decision, the caseworkers or administrative Reviewers consider whether the employer's business plan has "the authority to carry out most of the major operational business decisions locally." However, in a recent series of reasons for refusal, they claimed, “Not submitting a business plan and not being able to produce one if asked by the assessing officer would significantly undermine your credibility as a business representative”.

Therefore, sole representatives would surely continue to be quizzed on the parent company’s plans and expected to prove they know them forwards, backwards, and to a decimal point. If they fail to, the broad genuineness requirement will be used to impugn their recruitment, intentions, skills, knowledge, experience, and authority.

The amended rules require employers to provide letters confirming that applicants have the relevant skills, experience, knowledge and authority to negotiate and make operational decisions on behalf of their businesses. However, it did not specify in detail how the UKVI should be satisfied.

There is no need for additional evidence to enable explicit scrutiny of the recruitment process, qualifications, or representative selection process, but if it is not convincing to the UKVI, the caseworker may consider subjective refusal.

Considering recent cases, the applicants need to prove their skills, experiences, and knowledge as much as possible and submit evidence for references.

Given the new emphasis on genuine employment and recruitment practice, it would be helpful to show that there was a true recruitment process. The parent company should also be able to explain why the employee was chosen for the role over other employees. If the employee has already led the establishment of another branch or subsidiary, this is very relevant to the skills and knowledge required to establish a branch or wholly-owned subsidiary in the UK. It may also provide evidence for decisions or negotiations made on behalf of the parent company (and to the extent permitted by confidentiality) or business. This will also help show that they are senior employees of the company.

The evidence that may be provided in each case needs to be considered for the specific situation of the business and the representative to be dispatched. However, this new requirement has reduced the possibility of entering the UK as a representative with less experience in the overseas business have been granted a Sole Overseas Business Representative visa.