The Problems with Tier 1 Entrepreneur Visa Applications

The current success rate for Tier 1 Entrepreneur visa applications is around 50%. To put it another way, other things being equal there is only a one in two chance of success.

This high failure rate is not nice for applicants but, in a more overarching sense, it is not nice for the British Government either. The whole purpose of the Tier 1 Entrepreneur scheme is to encourage overseas entrepreneurs to come to the UK, do business and thus stimulate and benefit the British economy.

The large number of refused would-be entrepreneurs constitutes a group of people who would like to do business in the British economy but are not able to. One would have thought that the British Government would be mildly alarmed about this – and especially with the approaching Brexit world in which the UK’s international trading future is uncertain – but it is not obviously so.

Why is the failure rate so high? UK Visas & Immigration (the visa decision-making body) says that some Tier 1 Entrepreneur applications are refused because they do not appear to be “genuine”. Undoubtedly some applicants are not genuine but, equally undoubtedly, a lot of the refused applicants are genuine and serious businesspeople who want to thrive and prosper in the UK.

Where the refusal reasons do not allege lack of genuineness we would say that the main reason is that the rules and requirements for evidence for Tier 1 Entrepreneur applications are so complex that it is easy for the applicant (or perhaps their lawyers) to get it wrong. A very small mistake may lead to a very big refusal. And where a crucial document is missing in an application it is by no means certain that the UKVI caseworker will write to applicant and ask them to provide it; it is a matter for their discretion. They may very possibly not bother and simply refuse the application.

And even where a lack of genuineness is alleged this does not necessarily indicate dishonesty. A poorly-prepared business plan can lead to a refusal on the basis of lack of genuineness, but this kind of alleged lack of genuineness has the flavour more of incompetence than deception. To put it another way, a lack of realism and rigour gets characterised as a lack of genuineness.

There are three types of immigration application associated with Tier 1 Entrepreneur: an initial visa application (which can be made either from outside the UK or from within the UK), an extension visa application (made within the UK), and an indefinite leave to remain application (made within the UK) – sometimes known as a “permanent residence” or “settlement” application. Each different type of application has its own potential problems.

And one of the major problems with Tier 1 Entrepreneur applications generally – and this can apply to any type of Tier 1 Entrepreneur application – is there are quite frequent changes in the rules, and the applicant or the applicant’s lawyers need to be aware of the most recent version. If they use an out-of-date version things can go wrong.

And it is not only the “rules” (which are in themselves remarkably voluminous). There are also voluminous policy guidance and instruction documents produced by the Home Office which are also required reading. There is a veritable forest of words to be chopped down before the aspiring applicant can proceed.

And another issue is that if an application is refused, whilst there are rights of legal challenge, they are not very strong. In the old days there was typically the right of appeal to the First-Tier Immigration Tribunal in the event of a refusal. But this is no longer the case. Now there is only the right to “Administrative Review”, which is carried out by UKVI, ie the body which made the refusal decision in the first place. You probably do not need to be a professor of law to spot the strong possibility of lack of independence in such a scheme.

And, not only that, but the possibilities of submitting fresh documents with an Administrative Review are very limited. To put in bluntly, if you have a refusal decision on your hands you may be stuck with it.

So much for all the potential problems with Tier 1 Entrepreneur applications. In our next article we will explain how such problems can best be avoided.

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