The Tier 1 Entrepreneur visa is closing on 29th March 2019, to be replaced with the Innovator route and Start Up visa. If your entrepreneur visa application has been refused, take advice on your options under the new rules.
5 common Tier 1 Entrepreneur Refusal Grounds
48% of Tier 1 Entrepreneur visa applications are rejected
The UK Tier 1 Entrepreneur visa was introduced to entice foreign individuals to set up business in the UK.
But competition to attract this cohort is quite literally of global proportion. Governments have developed their own ‘golden visas’ aimed at attracting these individuals – and their wealth – to their respective economies, thereby benefiting from the associated economic and social benefits that are expected to ensue, such as resident job creation.
In the UK, concerns about abuse of the Tier 1 entry route have however led to changes in the eligibility criteria that have since resulted in declining application success rates.
With the refusal rate for Tier 1 entrepreneurs now at 48%, UKVI enforcement is clearly stringent and the pressure is on candidates to get their submissions right.
Understanding the Tier 1 Entrepreneur refusal grounds can help applicants approach and prepare effectively for their own applications, or in the event of a refusal, to understand if they have grounds to appeal.
5 common Tier 1 Entrepreneur Refusal Grounds
- Tier 1 Entrepreneur Refusal Ground: Applications do not meet rigid, exacting Home Office requirements
UKVI are clear that they require applicants to follow the Tier 1 application process to the letter. All documents must be presented exactly as the rules stipulate in terms of format and type of information. Documentation must be an acceptable form of evidence.
Originals must be submitted, or where acceptable, officially certified copies. For example, it is not acceptable to print-off and submit online bank statements without getting the bank to certify them.
Similarly, satisfying the strict eligibility criteria is also critical to the application. The conditions around funds for example must be fully met, e.g. minimum fund thresholds for investment and for maintenance purposes which must be held within regulated financial institutions, and proven with acceptable forms of evidence.
Where there is potential ambiguity or queries based on your circumstances, you are advised to seek professional guidance for advice on a suitable solution.
- Tier 1 Entrepreneur Refusal Ground: The ‘genuine entrepreneur’ test
Since its introduction in January 2013, the ‘genuine entrepreneur’ test has without doubt added to the surge in Tier 1 entrepreneur refusals.
Caseworkers must as part of the decision making criteria assess the ‘viability and credibility’ of the applicant’s business plan.
This requirement has attracted considerable criticism, based largely on the curious notion that UKVI caseworkers are deemed to have the requisite expertise to judge the future success of a business venture.
These concerns were echoed in the Migration Advisory Committee’s (MAC) September 2015 ‘Review of the Tier 1 Entrepreneur and Graduate Entrepreneur routes’ report. In the report, the MAC called for reform of the current process, arguing for ‘alternative delivery options for the genuine entrepreneur test’ to be explored by the government.
One suggestion was a panel of individuals with real experience of start-ups and relevant sector knowledge would be in a better position than caseworkers to assess the viability of a business proposition. Not perfect perhaps, but a closer fit than the current position.
- Tier 1 Entrepreneur Refusal Ground: Weaknesses in business plan
In the simplest terms, you need to prepare a solid business plan for your application.
The purpose of your application is to convince a Home office caseworker that your business idea is viable and will be a success to justify entry to the UK.
You are expected to do this by submitting a mandatory business plan with your application. The business plan will be scrutinised as part of the application process, particularly at the interview, under the genuine entrepreneur test.
There is little prescriptive guidance on what your business plan should and should not cover. This will of course largely depend on the type of business venture, the stage the business is at, and your level of experience as an entrepreneur. As such, seeking advice in good time can help ensure you are taking the right approach and detailing information critical to UKVI’s decision-making process.
A key consideration here is that should your application be refused and you mount an administrative appeal, you will not be permitted to include new or additional information. You can only rely on the documents and information in the format you originally submitted.
- Tier 1 Entrepreneur Refusal Ground: Failed Home Office interview
Related to the business case interview is a recent development in respect of the Tier 1 interviews when applicants should expect to be questioned on their business case and application.
A recent court decision has now put into question the format and outcome of Home Office interviews for Tier 1 Entrepreneur visas.
In R (Anjum) v ECO, the court found that where the Home Office had interviewed an applicant using a structured interview which did not allow for ‘spontaneity’ or ‘clarity’ to be provided in response to questions, the process may be considered unfair and accordingly the resulting decision unlawful.
Put simply – the court ruled that the current format of the Tier 1 interview is too rigid and arbitrary.
Whether the issue is that caseworkers are following scripts to apply the genuine entrepreneur test consistently and/or to meet to a minimum standard, the ruling clearly denounces this format of interview as not allowing interviewees the time or space to express themselves and explain their circumstances more fully.
The ruling therefore opens up the possibility of challenging Home Office decisions on tier 1 refusals that were based upon this type of interview.
If you have a query regarding a previous Tier 1 refusal based on this format of interview, please get in touch and we will be able to advise on your specific circumstances.
- Tier 1 Entrepreneur Refusal Grounds: Not enough time to make a strong application
Allowing yourself sufficient time to compile your submission ahead of your visa expiry is critical. We typically recommend allowing 6 months to put your application together and collate all of the relevant supporting information and documents, in the required formats, and to finalise your business plan.
A Tier 1 visa holder can at any time apply early for an extension. So, for example, as is often the case, if you need to travel and have to have at least 6 months UK visa in order to get a Schengen visa, you can apply for an extension.
The worst case scenario, going beyond your visa stay as an ‘overstayer’ is a scenario best avoided.
How to appeal a Tier 1 refusal
Importantly, there is no statutory right of appeal against a Tier 1 refusal.
Your refusal letter will detail the next steps open to you for appeal. Generally, this will requires you to apply for an administrative review. If this fails and you want to challenge further, you must apply for permission to pursue judicial review via the Upper Tribunal.
Again, we are highly experienced in supporting Tier 1 applicants in the appeals process. We can advice on your likely prospects of success and grounds for challenge.
DavidsonMorris can help avoid or challenge a Tier 1 refusal
There are so many technical aspects to the Tier 1 application, it is difficult for candidates to read and understand the small print. We do that for you.
With substantial experience in guiding Tier 1 applicants through the Home Office process, our approach is to meet the visa holder and fully review all documentation, advising on documents to be collated and starting to draft the application at that stage, adding to it as we go along and submit it 28 days beforehand.
We also advise applicants who come to us having been refused a Tier 1 visa. With exceptional insight and experience of Tier 1 Entrepreneur refusal grounds, we will get under the skin of the application to understand why the application was refused, and will advise accordingly from our extensive experience in this area – including judicial review applications – on recommended next steps.
If you have a specific query about a Tier 1 visa, speak to one of our experts today.