Earlier this year, the UK Border Agency (UKBA) implemented changes to the Tier 1 (Entrepreneur) visa route which included a ‘genuine entrepreneur’ test and adjustments to the minimum funds requirements. We are now witnessing the effects of these changes as greater scrutiny is being applied to Tier 1 (Entrepreneur) visa applications and increasing numbers of applicants for both entry clearance and leave to remain in this category are being summoned to an interview with UKBA caseworkers.
The new rules are causing significant stress amongst genuine applicants who intend to establish or have already set up a legitimate UK business, but who are concerned as to how ‘viability and credibility’ must be proven to the UKBA. In addition, the interview process itself can of course be extremely daunting, especially when English is not the first language of many applicants.
In light of this and following our own experiences recently, we hope that through providing some analysis of the new requirements and the interview experience itself, our readers will feel more confident when submitting their applications. We also hope to reassure individuals who are currently considering applying under this route that they should not be put off by the new rules.
January 31st 2013: Introduction of the ‘genuine entrepreneur’ test
In the ministerial statement which announced the changes to the Tier 1 (Entrepreneur) category, Immigration MP Mark Harper stated ‘it is clear that, following our tightening of other migration routes, the Entrepreneur route is now being targeted by applicants seeking to abuse the immigration rules…We need to tighten the current rules to allow for a meaningful assessment of the credibility of an applicant for this route.’ It is apparent that, following several reports in the press detailing abuses of this visa category, the Government felt a more stringent set of criteria was necessary in order to uphold the integrity of this visa.
The ‘genuine test’ (as it has been named by applicants) for entry clearance applications which came into force on the 31st January 2013 is contained in the Immigration Rules as follows:
The Entry Clearance Officer must be satisfied that:
245DB(f) (i) the applicant genuinely intends and is able to establish, take over or become a director of one or more businesses in the UK within the next six months;
(ii) the applicant genuinely intends to invest the money referred to in Table 4 of Appendix A in the business or businesses referred to in (i);
(iii) that the money referred to in Table 4 of Appendix A is genuinely available to the applicant.
Similarly, when assessing applications for leave to remain in the Tier 1 (Entrepreneur) category, which are submitted by individuals who are switching from another immigration category, the UKBA must be satisfied that the applicant genuinely intends to establish or take over a business in the UK and that the applicant genuinely intends to invest the required funds.
But what are the factors which the UKBA take into account when assessing whether an application passes the ‘genuine test’?
Viability and credibility – how to ensure your case will pass the ‘genuine test’
The new Rules state that when assessing an entry clearance application against the criteria listed above, the UKBA will take the following into account:
245DB(g) (i) the evidence the applicant has submitted;
(ii) the viability and credibility of the source of the money referred to in Table 4 of Appendix A;
(iii) the viability and credibility of the applicant’s business plans and market research into their chosen business sector;
(iv) the applicant’s previous educational and business experience (or lack thereof);
(v) the applicant’s immigration history and previous activity in the UK; and
(vi) any other relevant information.
The factors to be taken into account when assessing leave to remain applications are the same with a couple of additions, such as ‘where the applicant has already registered in the UK as self-employed or as the director of a business, and the nature of the business requires mandatory accreditation, registration and/or insurance, whether that accreditation, registration and/or insurance has been obtained.’
Clearly, there is a rather extensive range of factors which the UKBA will consider when deciding an application. When reviewing this list it is apparent why applicants can become very anxious, because it is implied that the UKBA will apply heavy scrutiny to all areas of the application from an applicant’s previous education and work experience, to their investment capital and current business plans. In view of these requirements, we can certainly understand why individuals are increasingly seeking professional help as to how they can demonstrate the genuineness and credibility of their plans.
When submitting an application, it is important to ensure that detailed evidence of work experience and qualifications is provided. This should reflect some relevance to the applicant’s chosen business sector and demonstrate their ability to undertake a business venture in the UK.
It is our understanding that at least half of the applications submitted in this category have been refused purely due to applicant’s failing the credibility test and a toughening of the criteria. Some of the more challenging issues that applicants have faced relate to how funds should be held and supporting evidence from third parties. The guidance is often difficult to interpret leading to a misunderstanding of the requirements to achieve a successful outcome.
The interview – another test?
If the UKBA wish to obtain further information or clarification before approving an application, they will organise an interview with the applicant. Individuals or entrepreneur teams are also invited for interview where the UKBA has concerns regarding the application, but it is important to note that just because an interview is requested, this does not necessarily mean that the UKBA doubts the case.
The interview will take place at the Home Office in front of an independent case worker who asks a series of questions lasting approximately 40-45 minutes. The questions are designed to assess whether applicants are genuine entrepreneurs and have the intention to establish a business in the UK. For applications submitted by an entrepreneur team, it is important to bear in mind that both applicants are expected to understand the business plans and their role within the company.
Applicants should try not to approach the interview as another test, because provided they have well researched business plans, relevant work experience and a genuine desire to establish a UK business there should be no reason to worry. We encourage applicants to answer all questions honestly and in full. Having attended several interviews in recent months with our clients, we would be pleased to provide guidance on the process if required.
Our readers should take note that this category is once again under review and likely changes will occur towards the end of the year. We would therefore encourage applicants to submit their applications early to avoid being caught out by any future changes or tightening of the requirements.
We are in the process of engaging with the Home Office and will take active part in any consultation process on proposed changes to the rules for entrepreneurs. In the meantime, we would encourage our clients and readers of our blog to share their own experiences and comments which may be useful to share with the Home Office, particularly where you believe that a harsh decision has been made or the Home Office did not recognise the potential of your business.
Should you have any questions or simply wish to discuss your case, please call us on +44(0)207 001 2121 or email us for advice and assistance.