Guest blog by Lewis Silkin LLP:

The routes available to entrepreneurs under the Immigration Rules are much more onerous, expensive and risky than the self-employment option currently available to EEA nationals under the Immigration (European Economic Area) Regulations (‘the Regulations’).

EEA nationals’ current rights and documentation

EEA nationals wanting to set up in business in the UK can currently come here and stay for an initial period of three months without having to fulfil any conditions. After the first three months, an EEA national entrepreneur enjoys an extended right of residence if they are economically active and have responsibility and personal freedom in genuine and effective self-employment. They must also register with HMRC.

An EEA national’s family members can join them in the UK. This covers your spouse, civil partner, children and grandchildren, your spouse/civil partner’s children and grandchildren who are under 21 or are dependants, and your/your spouse’s dependent parents and grandparents.

The Regulations also provide for unmarried partners and relatives who are established members of your household to be treated as family members; they are deemed ‘extended family members’. Unmarried partners are those with whom you have been living in a durable relationship for at least two years.

Family members should apply for family permits in their country of residence, before coming to the UK. Family permit applications are free of charge.

An EEA national entrepreneur and their family members can apply for documentation of their extended right of residence, and after five years of self-employment and residence in the UK, of their permanent right of residence. These documentation applications cost £65 per person. Some family members of EEA nationals require documentation. However, most rights under EEA law are not dependent on the individual or their family members making a successful application for documentation.

Britannia rules?

By contrast, non-EEA nationals must meet requirements under the Immigration Rules (‘the Rules’). It’s not yet clear what the position will be for EEA nationals post-Brexit. Suitable visa routes for starting a business in the UK under the Rules include the Entrepreneur route, the Representative of Overseas Business route and, potentially, the Investor route. The eligibility criteria for these routes are difficult to meet. Most Entrepreneur migrants will need £200,000 in investment funds in addition to at least £3,310 cash in the bank to demonstrate that they can maintain themselves, and they will need to demonstrate their English language ability. Investor route applicants need even more investment funds – no less than £2 million.

Application fees are often more than £1,000 and must be paid for each dependent family member as well as for the main applicant. Applications under the Rules also require payment of the Immigration Health Surcharge, another £200 per year, per person.

Also note that family is not defined as broadly under the Rules as it in under the Regulations – only a spouse, civil or unmarried partner and children under the age of 18 may be eligible to come to the UK.  Immigrating under the Rules is riskier, because the Rules change at least 3-4 times a year. For example, eligibility criteria for an extension under the Entrepreneur route have changed several times and many migrants under the Rules are retroactively affected by an April 2016 policy change regarding permitted absences from the UK when applying for settlement on the number of days a migrant may be absent from the UK.

EEA nationals should obtain documentation under the EEA Regulations now.

Post-Brexit, if the relevant routes under the Immigration Rules are not redesigned, or self-employed EEA nationals do not benefit from some kind of exemption, the UK will lose a significant portion of the innovation and fresh economic activity contributed by EEA nationals in the startup community and beyond.

If you have any queries in relation to your rights under EEA law or would like assistance with submitting an EEA application, please contact Ben Maitland at ben.maitland@lewissilkin.com.

You can also book onto the Generate Law School: UK and US immigration options for entrepreneurs event at Lewis Silkin LLP on 27 October 2016. The seminar is focused on UK and US immigration options for entrepreneurs and startups and is suitable for anyone looking to do business in either location.

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