New Upper Tribunal decision on Tier 1 Entrepreneur Visa Requirements

Recently a new immigration case from the Upper Tribunal Arshad and Others (Tier 1 applicants – funding – “availability”) [2016] UKUT 334 (IAC) has highlighted the importance of detailed knowledge of the proposed business and further clarified the meaning of the term “available” when  considering the requirement to have funds available to invest in order to meet the Genuine Entrepreneur test as set out in the immigration rules. 

Facts of the Case

The case involved several Appellants who had applied for leave to remain  as a Tier 1 (Entrepreneur) Migrant under the Points Based System  of the Immigration Rules. The Appellants all made their Tier 1 visa application based on a representation that the same venture capital entity would provide the funding of £50,000 required by the Rules.  The applications were all refused as the Home Office took issue with the funding scheme.

All of the Appellants appealed to the First-tier Tribunal (FtT) and in a decision promulgated on 16 July 2015 the FtT dismissed all appeals. In doing so the FtT, in substance, endorsed the Secretary of State’s reservations.  The question for the Upper Tribunal was whether the FtT committed any material error of law in doing so.

Upper Tribunal’s Decision on “Genuine Entrepreneur Test”

In the headnote to the Judgment the Upper Tribunal highlighted the following:

(ii)               Every applicant for Tier 1 Entrepreneurial status bears the onus of proving satisfaction of all of the material requirements of the Immigration Rules.

(iii)             The Rules stipulate that every Tier 1 Entrepreneurial applicant have available [the requisite sum of capital investment] (which is normally £ 200,000 or more for new applicants) to invest in the proposed business venture. “Available” in this context denotes that the applicant must be in a position to invest this money in his business consequential upon a positive decision of the Secretary of State. The clear import of the Rules is that the investment must be capable of being made almost immediately thereafter.

(iv)              A mere intention on the part of a Tier 1 Entrepreneurial applicant to invest [half of the requisite sum of capital investment] at the outset of the business venture, coupled with a further intention to invest the balance … at some unspecified future date from some unspecified source, does not satisfy the Rules.

The Upper Tribunal further elaborated on the meaning of availability of funds when assessing whether an applicant satisfies The ‘Genuine Entrepreneur Test’ ;

We turn our attention to one discrete issue of law. This relates to the word “available” in the various provisions of the Rules rehearsed above. The language of the Rules, in this respect, is, variously, ” available ….genuinely available … made available ….” The word ” available” is an unpretentious member of the English language. It carries no technical or special meaning in this context. In our judgment, it denotes that in the case of every Tier 1 applicant or partnership the requisite sum, £50,000, must be capable of being provided for the purpose of investment in the proposed business upon the grant of the Tier 1 visa. The Rules clearly contemplate that the grant of such visa will be the impetus for establishing the business and beginning to operate it. The Rules do not address the issue of delay between these two events. We accept that, in the real world, some delay will normally eventuate. However, it is clearly implicit in the Rules that this will be of very short dimensions. Based on this analysis, we consider that £50,000 is “available” only if this sum is capable of being invested in the business within a short period of the grant of a Tier 1 visa. Cases where this cannot be effected are antithetical to the clear thrust and philosophy of the Rules.

The case is an example of how greater scrutiny is being applied to Tier 1 Entrepreneur visa applications. It is vital for an applicant to seek professional legal advice to ensure you receive a successful result.

Successful Tier 1 Visa Applications

As one can see from the above, it is very important to do the required careful research and homework before submitting a Tier 1 (Entrepreneur) application.  Our team of experienced and professionally qualified solicitors and barristers will be able to guide you through the process of making a Tier 1 application step by step and limit the possibility of failure by complying with the strict letter of the law.

We also undertake a great deal of appeal work before the Immigration and Asylum Tribunal and have a successful track record of successful results for our clients. We have the experience and the knowledge required to take your case forward successfully. If you have had a entrepreneur visa refused, contact us to discuss your case so that we can provide you with a case assessment.

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