What Are The Advantages Available to Companies Established in Malta?

Background

Malta has the geographical advantage of being situated in the middle of the Mediterranean Sea, at a crossroads between Europe, North Africa and the Middle East. This island offers a fully developed open market economy, and has a hardworking and multilingual population (88% of Maltese people speak English). It also offers a low rate of corporate tax.

Malta is one of a few ‘lucky’ countries where the weather is temperate all year round. In Malta, average summer temperatures range from +28 to +38 ° C. The summer  begins in May and conventionally ends in October, but even the “winter” weather is very comfortable and the air temperature rarely drops below +12 ° C.

International Status of Malta

Factors contributing to and enhancing the international status of this jurisdiction include:

  • Malta is a member of the EU and therefore has access to European Union Directives.
  • Malta is a full Schengen Member state and has access to all the benefits that this brings.
  • It is a Sovereign Independent State, enjoying political, economic and social stability.
  • Malta has friendly relations with the majority of countries across the world through its policy of non-alignment.
  • Companies operating in Malta are subject to a corporate tax rate of 35%. However, non-resident shareholders enjoy low effective rates, as Malta’s full imputation system of taxation allows generous unilateral relief and tax refunds.

Malta’s Full Imputation Method of Taxation

The unilateral relief and refund system provides a low effective Maltese tax rate of 5% for active income and 10% for passive income:

  • Active income – in most instances non-resident shareholders can apply for a tax refund of 6/7ths of the tax paid by the company on the active profits used to pay a dividend. This results in an effective Maltese tax rate of 5% on active income.
  • Passive income – in the case of passive interest and royalties, non-resident shareholders can apply for a tax refund of 5/7ths of the tax paid by the company on the passive income used to pay a dividend. This results in an effective Maltese tax rate of 10% on passive income.

What Other Tax Advantages are Available to Maltese Companies?

Other tax advantages are also available to companies established in Malta:

  • No withholding tax on dividends, even if they payment is made to a non-European jurisdictions.
  • Qualifying dividends and capital gains derived from a “participating holding” are, at the option of the taxpayer, exempt from Malta tax. In order for a holding to be classified as a ‘participating holding’, please see Article: Malta Holding Companies – Why Are They So Attractive. It details what single condition, from a list of six,  needs to be met.
  • Notional Interest Deduction (NID). NID is an innovative way in which Maltese companies can, in the correct circumstances, reduce their tax liabilities. This option is of greatest interest to companies with large equity balances. NID allows companies to deduct a notional interest amount based on the ‘risk’ capital of a company. Such companies will be able to claim a deduction against chargeable income, for NID deemed to be incurred on their equity capital. Previously in Malta, debt interest had been tax deductible, whilst dividends were not. Please see the following Article for additional information: Malta’s Notional Interest Deduction Regime Which Types of Company Are Most Likely to Benefit.
  • Malta has approximately 70 Double Taxation Treaties in place. If there is no relevant double taxation treaty,  then unilateral tax relief is available.

Other Attractive Factors for Maltese Companies

There are additional advantages available to companies established in Malta, depending on the specifics of the particular company and its employees. 

  • Start-up funding is available for setting up operations in Malta. There is additional booster funding available if the company operates in the technology space.
  • The regulator is approachable, and, on the basis of a solid business proposal,  is happy to discuss setting up ‘sandbox environments’, to test new technologies
  • Fast-track employment permits are available for third country nationals under the ‘Key Employee Programme’. The Malta ‘Key Employee Programme’ is available to managerial and/or highly-technical professionals with relevant qualifications or adequate experience relating to a specific job. Successful applicants receive a fast track work/residence permit within five working days from the date of application, valid for one year. This can be renewed for a maximum period of three years.
  • A special tax rate of 15% can be enjoyed by certain individuals employed in; Research & Development/Financial Services/Aviation/Online Gaming, under the Highly Skilled Programme.

Dixcart Corporate Services in Malta: Registration and Maintenance of Companies

Services available from the Dixcart office in Malta include:

  • Company registration: preparation and submission of all necessary documents, obtaining permits, certificates and licenses.
  • Opening bank accounts and interaction with banks on any matters.
  • Corporate secretarial: documentation and reporting, and compliance with all legal requirements.
  • Office services: rental of a work space or an office, internet access, telephone and fax, office equipment, and assistance with correspondence, if required.
  • Other services: bank account management, accounting services, assistance in employing foreign employees by the Maltese company.
  • Change of jurisdiction: domiciliation of the company to Malta, and the use of Maltese companies in combination with other jurisdictions.

Additional Information

For further information about establishing a company in Malta, please contact Jonathan Vassallo or Clive Azzopardi, at the Dixcart office in Malta: advice.malta@dixcart.com. Alternatively, please speak to your usual Dixcart contact.

Tax Treatment of Trusts in Switzerland and Why Use a Swiss Trustee

The Use of Trusts in Switzerland

Switzerland does not have specific Trust Law, but recognised trusts with the ratification of The Hague Convention on the Law Applicable to Trusts (1985), on 1 July 2007. Whilst there is no domestic law governing trusts in Switzerland, trusts from other jurisdictions, and their specific rules, are recognised and can be administered in Switzerland.

In Switzerland, the Settlor (the individual who settles assets into the trust for the benefit of the Beneficiaries) can choose the law of any specified trust jurisdiction to govern the trust. For example, a Guernsey trust can be established with a Swiss Trustee. The Trustee holds and manages the assets in the trust on behalf of the Beneficiaries.

Why Use a Trust And What is the Role of a Trustee?

A trust is a very flexible instrument and is particularly useful for estate planning, wealth management and asset protection.

At a basic level, the concept of a trust is relatively simple: the Settlor places assets in the legal custody of another (Trustee), who holds the assets for the benefit of a third party (Beneficiary). The trust is not a separate legal entity, but more of a legal obligation agreed between two parties: the Settlor and the Trustee.

Trustees owe a fiduciary duty to both the Settlor and the Beneficiaries, as well as to the trust itself. Depending on the jurisdiction under whose laws the trust is constituted, the trust can either have a pre-determined life span or be indefinite. Trusts are intrinsically very flexible.

Taxation of Trusts in Switzerland

The Hague Convention (Article. 19) stipulates that the Convention does not prejudice the powers of sovereign states in fiscal matters. Consequently, Switzerland has maintained its sovereignty in relation to the tax treatment of trusts.

The tax advantages available in using a trust with a Swiss Trustee essentially depend on the tax residence of the Settlor and the Beneficiaries.

In terms of Swiss Law:

  • A Swiss resident Trustee is not liable to Swiss income tax or capital gains tax on the assets held under management in a trust.
  • Settlors and Beneficiaries are exempt from Swiss taxation as long as they are not considered to be Swiss residents.

Why Use a Swiss Trustee?

In addition to the potential tax advantages detailed above, there are a number of reasons why use of a Swiss Trustee can be advantageous:

  • Switzerland has a long established reputation for discreet professional support when managing the affairs of wealthy private individuals.
  • Switzerland is located in the centre of Europe, where many affluent individuals are based. Swiss Trustees therefore offer the advantage of being able to provide frequent and high quality support as they can regularly liaise with and, when appropriate, meet with clients and/or other professional advisers.
  • Swiss economic, political and legal stability provides a solid base for the provision of high quality support and administration services.
  • Switzerland has a number of favourable and well developed banking laws, and has been a popular international private banking centre for many years. It is a jurisdiction with a good reputation and offers a high quality of knowledgeable professionals working within asset management, tax planning and private banking.

The Dixcart Office in Switzerland and Trust Services

The Dixcart office in Switzerland is a member of the Swiss Association of Trust Companies (SATC) and is registered with the Association Romande des Intermediaires Financiers in Switzerland (ARIF).

Confidentiality in Switzerland

Switzerland is well known for its commitment to banking services, professional confidentiality and commercial competence.

  • SATC provides that: “Any and all information related to a trusteeship and acquired by a Member must be kept strictly confidential by the Member, its directors, officers and other employees.”

A breach of confidentiality, whether professional or commercial, would only be permitted by law in the event of criminal liability.

Summary

A trust based on the Trust Law of, for example, England, or Guernsey, or Isle of Man, or Malta or St Kitts & Nevis and with a Swiss Trustee, can offer a number of tax efficiencies, as well as advantages in terms of wealth preservation and confidentiality.

Dixcart can establish and manage such trust structures.

If you would like more information on this subject please speak to Christine Breitler at the Dixcart office in Geneva: advice.switzerland@dixcart.com or to your usual Dixcart contact.

Dixcart Trustees (Switzerland) SA is a member of SATC and registered with ARIF Switzerland.

The Guernsey Private Foundation and The Advantages Available as an Alternative to a Private Trust Company

Individuals and families use various structures to protect their assets from uncertainty and volatility and to deal with estate and succession planning matters. Very often asset protection alone is not the principal driver in creating such structures.

It is not uncommon for the next generation of a family to move to new countries to study, work, establish businesses and settle down. As families become more internationally mobile the complexity of administering family estates and assets, as well as cross border succession and estate planning, increases.

Steps, Stages and Structures

Before a family’s estate reaches the size and complexity which requires the establishment of a dedicated, single family office, there are a number of stages through which the structure might transition.

Pooled and enhanced fiduciary support

At an early stage, several disparate family related structures are often transferred to a single fiduciary provider or trustee, with whom the family has a good existing relationship or who has been recommended by a trusted adviser.

These structures will generally take the form of a discretionary Trust or Foundation. The Trustee or Foundation Council can then be instructed to assist with developing the position into a standalone family office position, utilising their knowledge, experience and existing resources of; qualified staff, policies and procedures. At this stage efficiencies are created in the management and administration of the structures under a single provider, the family/adviser relationship is reinforced, and additional cost efficiencies often result.

Private Trust Company (PTC)

For many years the PTC has been the preferred vehicle for administering the assets of wealthy families and many variants have emerged across jurisdictions that specialise in providing them, and whose legislation and regulation are particularly suited to private wealth management. One of the main attractions of the PTC is that decisions, relating to the underlying trusts, are made by directors who are carefully chosen by the family and/or may even be family members.

There are a number of variants of the PTC, which can be limited by shares or guarantee and/or even with separate classes of shares for voting purposes.  Consideration as to the level of control exerted over the PTC needs to be carefully considered. Too much control can lead to tax implications.

The most common solution to the control issue has been to hold shares in the PTC through a Purpose Trust (see diagram below), which creates additional layers of ownership and administration.

Whilst PTC’s remain a popular specialist solution, Guernsey can also offer a simpler structure through the Private Trust Foundation (PTF).

Private Trust Foundation (PTF)

A PTF removes the need for the ownership layers which are required above a PTC, and can simplify the structure and therefore administration and cost (see diagram).

A PTF established under the Foundations (Guernsey) Law 2012 (the “Law”), must be for the sole purpose of acting as Trustee of the Trusts for the benefit of an individual or family.

The Law makes it clear that, on establishment, a Guernsey Foundation has its own legal personality, independent from that of its Founder and any Foundation officials.

Diagram: A Classic Private Trust Company Structure and the Guernsey Foundation Solution

The Advantages that a Guernsey PTF Offers

  • A Guernsey PTF will be run and managed in a similar way to a PTC, with the involvement of a local licensed fiduciary such as Dixcart, but with the significant advantage that, as an orphan vehicle, it does not have any other owners or controllers.
  • Family members or other trusted advisers can also be appointed to the PTF Council, which is responsible for acting as Trustee to the underlying family Trusts.

Managed Services

Managed support from a fiduciary provider, is often the penultimate stage in the progressive route towards establishing a full standalone family office, directly employing appropriately experienced staff in the jurisdiction of choice.

Managed Support Available from Dixcart

Managed support, as provided by Dixcart, can include dedicated serviced office space at the Dixcart Business Centre in St Peter Port, and fiduciary, accounting and legal support as appropriate. A fiduciary provider, such as Dixcart, can also help grow and develop the position into a standalone family office, ultimately operating independently.

Complicated family structures and family office positions are increasingly looking at the use of Private Investment Funds (PIFs) within their global management positions. As a holder of a Protectors of Investors Licence, Dixcart in Guernsey is licensed to provide fund establishment and on-going fund administration services, to support and further enhance our existing private client offering.

Additional Information

For further information on private wealth structures and their management, please contact Bruce Watterson, Director, Dixcart Trust Corporation Limited, Guernsey: advice.guernsey@dixcart.com.

Dixcart Trust Corporation Limited, Guernsey: Full Fiduciary Licence granted by the Guernsey Financial Services Commission. Guernsey registered company number: 6512.

UK

The UK Tax Treatment of Cryptoassets

Over the past few years, there has been an increase in customers buying goods and services using digital platforms and this has accelerated during the pandemic. This article will cover exactly what cryptoassets are and the tax treatment, in the UK, for both individuals and businesses.

What are Cryptoassets?

Cryptoassets, also known as ‘tokens’ or ‘cryptocurrencies’, are cryptographically secured digital representations of value or contractual rights that can be:-

  • Transferred
  • Stored
  • Traded electronically

There are numerous types of cryptoassets and they each work in different ways. The main 4 types of cryptoasset that you may encounter are as follows:

  • Exchange tokens – Intended to be used as a means of payment and this includes the most well-known token, the bitcoin.
  • Utility tokens – This provides the holder with access to particular goods or services on a platform. This is usually where a business will issue tokens and commit to accepting the tokens as payment for particular goods or services.
  • Security tokens – This provides the holder with particular rights or interests in a business, such as ownership or entitlement to a share in future profits.
  • Stable coins – These tokens minimise volatility as they are aligned to something that is considered to have a stable value, such as precious metals.

How the UK Tax Authorities Treat Cryptoassets

The tax treatment of all types of tokens is dependent on the nature and use of the tokens. It is not based on the definition of the token. HMRC does not consider a cryptoasset to be currency or money.

Tax Treatment of Cryptoassets for Individuals

Income Tax Treatment

Cryptoasset activity must be recognised as a trading activity for income tax rules to apply. To determine if a trading activity has taken place, HMRC will apply a series of tests known as ‘The Badges of Trade’. Any profits from this activity will be subject to income tax at an individual’s marginal rates (20%, 40% and 45%). There will also be Class 2 and 4 National Insurance due at the current rates applicable.

Capital Gains Tax Treatment

Where the transactions in cryptoassets are regarded as a personal investment, then they should be treated as a chargeable asset for Capital Gains Tax (‘CGT’) purposes. Any gain realised on a cryptoasset bought and subsequently sold, is subject to CGT at the current rate of 10% for a basic rate taxpayer and 20% for a higher rate taxpayer. Losses realised in the same way, can only be relieved against capital gains chargeable to CGT.

Non-Domiciled Individuals

The nature of cryptoassets is that they are decentralised, digital in nature and do not have a physical location. Determining the location or ‘situs’ of an asset is therefore important for UK resident, non-domiciled individuals, as it can change the tax consequences.

HMRC guidance has stated that the location of a cryptoasset is wherever the beneficial owner is resident. If the cryptoasset owner is resident in the UK, then the cryptoasset may also be located in the UK.

There is a need to watch out for the circumstances in which a UK resident, non-UK domiciled individual purchases cryptoassets using their untaxed foreign income or gains. They may have remitted those funds into the UK and triggered a tax liability on acquisition. If the individual then disposes of the cryptoasset and makes a gain, then the gain may also be taxable in the UK, without the benefit of the remittance basis of taxation.

Tax Treatment of Cryptoassets for Companies

Numerous transactions in cryptoassets by a company will invariably be regarded as trading for tax purposes. These profits will be subject to corporation tax at the current rate applicable (currently 19% for 2021 financial year). Any losses arising from cryptoassets are dealt with in the same manner as a trading loss.

However, if a business is not trading in cryptoassets, any profits will be treated as a chargeable gain for the company. The calculation of the gain would follow the pooling rules which also apply to shares and securities.

How Can Dixcart Help?

We are aware that HMRC are showing an increasing interest in cryptoassets and a planned ‘nudge letter’ campaign will reportedly target UK taxpayers who may have failed to properly pay tax on their cryptoassets. 

HMRC are now armed with data gathered from cryptoasset exchanges and other sources, meaning that investigations into the UK tax affairs of crypto investors are likely to be imminent. 

Any taxpayers who receive a ‘nudge letter’, or who may generally be concerned about their tax position, in respect of cryptoassets, should contact Paul Webb in  the Dixcart office in the UK: advice.uk@dixcart.com as soon as possible to discuss the position.

Introduction to Katrien de Poorter and Henno Kotze – Members of our DDL Team

Each of the Dixcart offices has a Dixcart Domiciles Team, providing advice regarding residence and/or citizenship programmes, and information on a number of tax efficient solutions that might be available.

Katrien de Poorter from our Cyprus office and Henno Kotze from our Dixcart office in Malta, are the two members of the team we are introducing to you today.

Dixcart Domiciles

Individuals and their families are becoming increasingly mobile, and Dixcart Domiciles, a business sector within Dixcart, specialises in residence and citizenship.

A number of countries offer attractive residence schemes and certain programmes offer the additional advantage of a passport.

Dixcart Domiciles offers specialist advice regarding various residence programmes around the world. We can help you discover the best country and programme for you and your family and provide advice on a number of tax efficient solutions that might be available. Dixcart Domiciles has its own website, which covers the programmes, the benefits, and financial obligations of each country in further detail.

Introduction to Katrien de Poorter and Henno Kotze

Katrien has been working in the fiduciary and wealth management sector since moving to Cyprus, as well as previously in in the United Arab Emirates. She also has close ties to other countries in the Middle East and  to Switzerland.

Henno was appointed Director of Dixcart Management Malta in 2018. He heads up the business development team, tasked with the continued expansion of this office and the promotion of Dixcart professional services available across the Group.

Katrien de Poorter

katrien.depoorter@dixcart.com

Katrien de Poorter has international experience in providing solutions to European and international clients and has a detailed understanding of the Cyprus Permanent Residence Programme which is available to non-EU nationals seeking to move to Cyprus.

Katrien advises clients on all aspects of relocating to Cyprus, including how to benefit from the advantageous non-domicile tax regime and the additional tax incentives that are available to Cypriot residents. Katrien also has experience in establishing and managing Cypriot companies once relocation has taken place, as a depth of knowledge regarding the establishment of Foreign Interest Companies allowing non-EU nationals to establish themselves in Cyprus.

Since moving to Cyprus, herself, she is able to draw on her own experiences in relocating to Cyprus, when advising clients embarking on the same journey, and is able to provide additional information on what it is like to live and work in Cyprus.

Henno Kotze

Henno Kotze

henno.kotze@dixcart.com

Director – Dixcart Management Malta Limited

Henno Kotze has expertise in providing international solutions to companies and individuals from several countries around the world and has a detailed understanding of the attractive residence programmes and tax regimes available to non-domiciled individuals in Malta.

Malta offers several residence and citizenship programmes and Henno has an in-depth knowledge of each of the programmes, including the benefits and financial obligations. He also specialises in international tax planning and structuring, establishing and managing Maltese companies, and has expertise regarding yachting and online gaming in Malta, as well as VAT.

Since joining Dixcart, Henno has advised many businesses relocating to Malta and has assisted a portfolio of clients wishing to obtain Maltese citizenship. He is on hand to meet clients in Malta, provide advice regarding the country and areas to live, assist with the documentation and application process of each programme, and advise on the legal aspects of relocating.

Popular UK Visa Options: The UK Start-up, Innovator and Sole Rep Visa Categories

The UK offers several popular visa options for entrepreneurs and businesses based outside the UK, who are looking to set-up and run a business in the UK.

The Sole Rep Visa Category – Key Points

The Sole Rep visa allows an overseas parent company to send a senior employee to the UK to establish its first UK branch or wholly owned subsidiary. To be eligible, some of the key requirements to be met include:

  • the main applicant cannot have a majority stake, own or control the overseas business under any arrangement – this also applies to the main applicant’s dependent partner (if also applying)
  • only genuine applicants can apply
  • the overseas parent company will need to continue to have its headquarters and principal place of business outside the UK
  • both the overseas parent company and the intended UK branch or wholly-owned subsidiary must be actively trading in the same type of business
  • the applicant needs to have the skills, experience and knowledge of the business necessary to undertake the role and have full authority to negotiate and take the operational decisions on behalf of the business
  • the applicant will not engage in business of their own nor represent any other business’ interest in the UK

A Snapshot of the Start-up and Innovator Visa Categories

The Start-up and Innovator visas (which replaced the former Tier 1 (Entrepreneur) visa category on 29 March 2019), allows entrepreneurial applicants, who have had their business idea assessed and approved by an endorsing body as being innovative, viable, and scalable, to set-up and run their business or businesses in the UK. Some of the key requirements include:

  • applicants must be the sole founder or an instrumental member of the founding team, relying on their own business plan, and responsible for executing the plan
  • an Innovator visa applicant’s business, may have already started trading, but the applicant must be the sole founder or an instrumental member of the founding team
  • the “viability” criteria requires the applicant’s business plan to be realistic and achievable based on the applicant’s available resources
  • those applying for an Innovator visa must have initial capital of £50,000

Permanent Settlement in the UK

Although the Start-up visa does not permit applicants to apply for permanent settlement, the Innovator visa does allow this option after 3 years. Similarly, the Sole Rep category is a route to permanent settlement, but after 5 years.

Are There Any Other Changes on the Horizon?

A number of new visa announcements were made in the UK Budget of March 2021, to encourage investment into, and growth for business – particularly in the fields of academia, science, research and technology. These include:

  • the introduction of an elite points-based visa by March 2022
  • the launch of the new Global Business Mobility visa category (which may be a replacement of the Sole Rep route) by spring 2022 for overseas businesses to establish a presence or transfer staff to the UK

Summary

The above is a general overview of some of the popular options and key requirements. If you have any questions and/or would like tailored advice on any UK immigration matter, please speak to Dixcart Legal at: advice.uk@dixcart.com or to your usual Dixcart contact.

uk-immigration-opportunities

Further Changes to The UK Immigration Rules: Last Quarter of 2021 and January 2022

On 10 September 2021, the Home Office published further changes to be made to the current UK Immigration Rules. Most of these took place in October 2021, although some of the changes will be taking place in January 2022.

COVID-19 Concessions

Throughout the current pandemic, the Home Office have published COVID-19 concessions by way of guidance, which can be changed at will. A few of these concessions are to be formally introduced into the Immigration Rules, providing more security to those affected, including:

  • Tier 1 (Entrepreneur) visa holders, who were granted an extension under the concession and wish to apply for settlement, will need to show they have created 4 jobs each lasting 12 months or 2 jobs each lasting 24 months
  • Skilled Worker and Sportsperson migrants – for applicants who were in another visa category, and applied to “switch” into one of these between 24 January 2020 and 30 June 2021, it may now be possible to count the decision making time towards settlement
  • EU Settlement Scheme – the late concession/guidance relating to excessive absences issued shortly before the deadline of 30 June 2021 is being incorporated

Other Changes

A summary of some of the changes are set out below:

  • Except in prescribed cases, EEA nationals will no longer be allowed to use their valid national identity card for entry to the UK – they will need to use a valid passport
  • Launch of the new “International Sportsperson” route, which replaces existing routes for professional sportspeople, and requires endorsement, sponsorship, meeting financial requirements and in some instances, meeting the English language requirement
  • The Global Talent route for talented and promising individuals in certain fields, will see some changes for the endorsement element, and the “Prestigious Prizes” element which bypasses the endorsement requirement, is expanding the list of qualifying prizes
  • The “working holiday visa” or Youth Mobility Scheme visa category is being expanded in January 2022 to allow citizens of India and Iceland between the ages of 18 to 30 to apply to live and work in the UK for up to 2 years, without sponsorship, with additional requirements for Indian citizens including holding an undergraduate degree or having a minimum of 3 years’ work experience in a role equivalent to the approved list of jobs
  • Changes are being made to existing rules relating to Afghan citizens under the Afghan Relocations and Assistance Policy, as well as the ex-gratia scheme. The Home Office has also published the Afghanistan resettlement and immigration policy statement, as well as promotional material called Next steps in the UK: immigration information for people evacuated from Afghanistan, although these do not form part of the Immigration Rules.

OTHER ITEMS TO NOTE

Other immigration and related news/cases you might want to take a note of include:

Further Information

If you have any questions and/or would like tailored advice on any UK immigration matter, please speak to Dixcart Legal at: advice.uk@dixcart.com or to your usual Dixcart contact.

UK

A Guide to Settling in The UK

When people talk about moving to the UK, many people want to apply for “permanent residence” at the start of their UK immigration journey. In most cases, this is not possible – an application for settlement or indefinite leave to enter/remain usually requires a minimum residence period in the UK of between 2 and 5 years depending on the visa category.

The Importance of the Visa Category Selected

It is very important to choose an appropriate visa category which allows you to do what you want to do in the UK, as well as eventually being able to apply for settlement (if that is an objective).

For instance, both the Skilled Worker and Intra-Company Transfer categories allow individuals to work in the UK; however, only individuals in the Skilled Worker route will be eligible to apply for settlement after 5 years, if they meet all the requirements.

An important requirement is that employers continue to hold a valid sponsor licence. Organisations will be aware that a sponsor licence is valid for 4 years, and they will have diarised to renew their sponsor licence. Without a valid sponsor licence, the individual will not be eligible to apply for indefinite leave to remain, and may be unlawfully working.

Absences from the UK

Another vital requirement, not just in the Skilled Worker category but for most routes eligible for settlement, is that individuals cannot be absent from the UK for more than 180 days in any rolling 12 month period, during the minimum residence period. There are exceptions which might apply, and some visa categories even allow specific work-related absences to be discounted from the “180 day rule”.

It is also not just the responsibility of Skilled Worker migrants to keep a track of their absences, but sponsors also have a duty to keep a record. In reality, many employers and HR staff already keep a record in the personnel files for each member of staff. In addition, employers are required to confirm in writing to the Home Office, that the individual is still required for work for the foreseeable future, and will be paid the minimum salary.

Are there Visa Categories Where the Minimum Residence Period is Less Than 5 Years?

There are a number of visa categories that allow individuals to apply for settlement in less than 5 years if all the requirements are met, for instance:

Visa CategoryMinimum Period of Residence in the UK
Tier 1 (Investor) – £5 million investment3 years
Tier 1 (Investor) – £10 million investment2 years
Innovator3 years
Global Talent (depending on sub-category and endorsing body)3 years

Is it Possible to Combine Time Spent in Another Visa Category?

Depending on the individual’s current and previous visa categories, it may be possible to combine time spent continuously in the UK, to meet the relevant minimum residence period. For instance, if an individual has spent a continuous period of 5 years in the UK, with 3 years in the Sole Rep category, and subsequently 2 years in the Skilled Worker category, then the minimum 5 year residence period is met. However, the same minimum residence period is not met if combining 2 years on a Student visa and 3 years in the Skilled Worker category.

There is also the Long Residence rule which means individuals who have continuously and lawfully lived in the UK for 10 years, can combine all their different UK visas to become eligible to apply for settlement. Under the Long Residence rules, the Home Office currently state that absences from the UK cannot be more than 540 days.

Conclusion

The rules to become eligible to apply for settlement in the UK will be different for each individual, dependent on their own immigration circumstances. Employers/sponsors should ensure that key dates are diarised to ensure appropriate steps are taken at the correct time, and that good records are kept.

Further information

If you have any questions and/or would like tailored advice on any UK immigration matter, please speak to Dixcart Legal at: advice.uk@dixcart.com or to your usual Dixcart contact.

UK

Snapshot of Recent UK Immigration News: Second Half of 2021

In this article, we look at some of the latest UK immigration related announcements from the second half of 2021.

1 – Sponsorship Roadmap

Published in August 2021, the Sponsorship Roadmap sets out changes which were implemented from 1 December 2020. These include:

  • removal of the Resident Labour Market Test
  • suspension of the 20,700 cap on the number of skilled workers
  • the introduction of the pre-licence priority service meaning a decision could potentially be made within 10 working days (if a coveted priority slot can be purchased)

The Home Office are also looking to:

  • simplify the process for how they review documentary evidence as part of the sponsor licence application process
  • review fees
  • introduce an enhanced Skilled Worker eligibility checking tool
  • pilot their new salary check feature with HMRC

Between 2022 and 2024, there are further plans to streamline the sponsorship journey including:

  • faster end-to-end process for both sponsoring organisations and sponsored workers
  • the re-use of information already held by the government such as automatic checks against data held by other departments
  • making the system more user-friendly

In addition, the Home Office will launch in Spring 2022, the new “Global Business Mobility” route for overseas business wishing to establish a presence in or transfer staff to the UK. This seems to be revising/amalgamating existing work visa categories, for example the current Intra Company Transfer category.

2 – Shortage Occupation List Review

The Migration Advisory Committee (or “MAC” for short) carry out consultations and determine what jobs they consider to be a shortage occupation in the UK.

A benefit to being able to sponsor a migrant under the Shortage Occupation List (or “SOL” for short) is that 20 points can be scored from this element, rather than under the salary element, a minimum score of 70 points is needed for sponsorship.

As a result of Brexit, there is no longer an endless supply of EU labour and many business sectors such as care homes are struggling to fill roles and/or pay the necessary minimum salary required under the sponsorship rules.

We would expect the rules to be changed wholesale to address the increasing labour shortage and/or further MAC reviews.

3 – An Introduction for Employers

The Home Office have published promotional material called The UK’s points-based immigration system: an introduction for employers. It seems to be a good overview for employers looking to take the first step and embark on the sponsorship journey.

4 – EU Settlement Scheme Deadline…

For quite some time, the Home Office have stood firm that EEA nationals resident in the UK by 31 December 2020, must make an application for status under the EU Settlement Scheme deadline of 30 June 2021.

Since then, they have allowed late applications to be submitted, if there are reasonable grounds.

On 6 August 2021, through a press release, the Home Office have said that these individuals “who apply late to the EU Settlement Scheme (EUSS) will have their rights protected” whilst their application is being determined. This will offer some security and stability for both individuals (and their family members), as well as for employers, though we always recommend checking the latest guidance first.

5 – The New “High Potential Individual” Visa Category

Towards the end of July 2021, the Department for Business, Energy & Industrial Strategy published their UK Innovation Strategy. As part of this strategy, the government aim to introduce the new “High Potential Individual” route, though it is not clear when.

This route appears to be for graduates from top global universities wishing to come to the UK to work. It seems that no job offer is required and it offers flexibility to the visa holder for changing employers.

If introduced, it seems to be a similar to previous (and now closed) visa categories such as the Highly Skilled Migrant Programme, and the Tier 1 (General) route.

We would expect the current Graduate visa category to remain open, as this is open exclusively to foreign students who are graduating or have recently graduated from a UK higher institution.

Further Information

If you have any questions and/or would like tailored advice on any UK immigration matter, please speak to Dixcart Legal: advice.uk@dixcart.com or to your usual Dixcart contact.