Entrepreneur Visa – Key legal changes and decisions from the summer of 2014

BY Author IN immigration law

 

On the 10^th July 2014 the Secretary of State introduced restrictions on in country applications from migrants on the Post Study Work visa and Tier 4 Student visa wishing to switch onto the Tier 1 Entrepreneur visa. These ‘Transitional arrangements’ became effective from the 11^th July and represent a significant restriction against speculative or fraudulent Entrepreneur applications. It is evident from these arrangements that the Secretary of State is beginning to phase out this route due to a perceived abuse.

In summary, the new rules maintain that applicants will only be eligible if they can demonstrate to the Secretary of State that they have been continuously engaged in business activity for a period of at least 3 months starting from before the 11^th July 2014. It is now mandatory for applicants to be registered as self employed or a director of a UK company, have a business bank account and also have at least 1 business contract. In practice these new rules target those applicants who establish their businesses for the sole purpose of being granted the Entrepreneur visa. This rule change will not affect those applicants who have genuinely been setting up their business during their time in the UK on a post study work visa.

When coupled with the expected restriction in appeals rights brought in by the Immigration Act 2014 which are speculated to commence in autumn 2014, it is essential for entrepreneurs to ensure that their initial application meets all the requirements outlined by the Home Office.

There has been several revealing decision from the Upper Tribunal on different aspects of the Entrepreneur Visa application

Ahmed and Another [2014] UKUT 365 (IAC)

This decision relates to whether a Judge can consider new evidence submitted to the Tribunal that was not initially submitted with the original application.

It was held that s.85A of the Nationality, Immigration and Asylum Act 2002 prevents a Judge from considering an additional documents at the appeal stage because the ‘genuine entrepreneur test’ relates directly to the points based system. This is an opinion not shared by the Secretary of State who generally considers genuineness to be a subjective element in the decision making process. For example, in practice some applicants are called for interviews or requested to submit further documents that are not prerequisites for a successful application. This decision could therefore be construed as being procedurally unfair upon applicants.

Shebl [2014 UKUT 216 (IAC)

In Shebl it was stated that when proving you have business contracts with third parties under paragraph 41-SD of Appendix A, the contract does not need to be set out in one single document. The Tribunal recognised that legally binding contracts can exist in many different forms and that applicants are permitted submit other documents pertaining to the existence of their contracts. It was emphasised that some sort of written documentation should still be provided.

Durrani [2014] UKUT 295 (IAC)

This decision focused upon bank letters which confirm that the an applicant has access to third party funding and the requirement that it must be stated that the bank is not aware of the funds being promised to any other third party apart from the applicant. It was maintained that there is no substantive argument that the requirement under paragraph 41 SD of the Immigration Rules produces an absurd result. Thus, all third party bank letters must contain this provision or the application could be refused.