Tier 1 Entrepreneur Applications
Genuine Entrepreneur Test
New Changes for 2018
Following on from our previous article on the Tier 1 Entrepreneur Route we have provided below a summary of the recent changes, the recent case law and what the future holds.
Tier 1 Entrepreneur
In January 2013 the Home Office introduced the Genuine Entrepreneur Test for migrants who seek to establish a business in the UK and invest substantial amount of funds in the UK economy.
This did lead to an increased amount of scrutiny for people who were applying under this route as they now had to provide evidence which had no set criteria.
The test also considered assessing the applicant’s credibility as a business person and took into account:
- The viability and credibility of the source of the funds;
- The viability and credibility of the business plan and market research the applicant has put into his plan;
- The academic and business background of the applicant; and
- The immigration history of the applicant.
This led to an increase in the number of documents now required to satisfy the Home Office that you are genuinely a business person who seeks to enter the UK and carry out business and employ settled people in the UK.
As time went by the Government managed to end any rights of appeal against refusals of these applications and the last time a case was heard in the Immigration and Asylum Chamber was on 16 January 2015 before Upper Tribunal Judge O’Connor in the case of R (on the application of Zhang) v Secretary of State for the Home Department (IJR).
Genuine Entrepreneur Test
Following this and many refused applications it was only on 11 July 2017 that The Honourable Mr Justice McCloskey and President and Upper Tribunal Judge Dawson helped clear the muddy waters.
It was found that the questions which are put before budding entrepreneurs or even seasoned business persons could lead to confusion and misunderstandings which result in unfair and unreasonable refusals.
The judgement has provided some clear reasons and is not likely to be challenged by the Home Office given how much scrutiny it has received via this Juridical Review Claim.
The headnote which is self-explanatory leaves some hope for people seeking to apply to enter the UK and invest their money into the UK economy as well as create jobs for British and Settled People in the UK.
“(i) A proposal by a Tier 1 Entrepreneur applicant who operates an existing business to use part of the prescribed minimum finance of £200,000 to purchase a second business for the purpose of developing and expanding the existing enterprise is compatible with paragraph 245 of the Immigration Rules.
(ii) An immigration interview may be unfair, thereby rendering the resulting decision unlawful, where inflexible structural adherence to prepared questions excludes the spontaneity necessary to repeat or clarify obscure questions and/or to probe or elucidate answers given.”
Whilst this case provides some clarity on how and when one could invest their money and the genuine entrepreneur test itself it is still worth noting that not every business person will have the patience and capacity to challenge an unfair refusal and may instead go to another country with their money and expertise.
New Changes from January 2018 – Home Office Statement of Changes
Good news does not always follow with bad news but at times when the Home Office is involved this could be the case.
On 07 December 2017 the Home Office announced that they will make changes to some routes of the Immigration Rules and caught in them is the Tier 1 Entrepreneur Route too.
The aim of the changes is to apparently make them clearer and easier to follow, but as with any Home Office change only time will tell!
The changes which will come into effect are:
- Further clarification for the job creation rule which is intended to help people that have jobs created for at least 12 months before the date of the current application.
- A new transitional arrangement in the rules regarding job creation for people that entered the route before 06 April 2014.
- Clarity on hours that employees have worked and been paid for so errors on the calculations can be reduced.
- Change on the Real Time Full Payment Submission requirement.
- An amendment on the job creation dates in question, this is to be able to see the impact that an applicant has had on a business that they may have joined.
- Clarity on Third Party Funding from another Company.
- Clarity on Venture Capitalist Firms providing funding to applicants.
- Further changes to cover any abuse of the rules especially to prevent recycling of funds between applicants.
- Change to the Directors Loan Agreement related transactions which would only apply to investments made after 19 November 2015.
- A change to the date that you have to be registered with Companies House for Limited Companies, this will change from 6 months to within 8 months.
- Removal of the Tier 1 Post Study Work route being able to switch to the Tier 1 Entrepreneur Category.
- A clarification is being made to the rule which excludes buying the business from its previous owner from being considered as a qualifying investment, to clarify that this means buying any business from its previous owner.
- Minor amendments are being made to the requirements concerning format and contents of letters (used as evidence) for consistency.
- Clarifications are being made to the evidential requirements for Tier 1 (General) migrants switching into the Tier 1 (Entrepreneur) category to make clear the relevant dates for evidence.
The future of Tier 1 Entrepreneur Applications
We do not expect this route to be shut down anytime soon as it is very lucrative for the UK to attract business people to the UK that are able and willing to invest money into the UK and create jobs for British people.
However, given how many changes are coming into effect it would always be useful for people to ensure that they have a well versed and experienced Solicitor on their side when making any of these applications.
At Salam & Co Solicitors Asif Salam and Naveed Abraham over the years have been highly successful in these applications.
Whilst the appeal rights were still available our firm had in the year 2013 a 100% track record!
Even after the appeal rights disappeared we have continued to provide an unrivalled service.
It is important that you seek guidance and ask us if you need our help.
At Salam & Co Solicitors we understand that growing your business requires you to have an application filed correctly and ensure that all documents required are correct, the only way to do this is to ensure that you have the correct advice and for that you should contact our team at Salam Immigration Solicitors.
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