Tier 1 Entrepreneur visa applications – problems that have emerged and how they can be dealt with

As we explained in our last two articles, the refusal rate for Tier 1 Entrepreneur visa applications is high. This is at least partly due to the complexities of the rules and published policies. It is also partly due to what might be termed a “hostile environment”. This is not a term that we invented: we borrowed it from the Home Office, who use it to describe the environment they have supposedly created to put pressure on migrants in the UK who do not have immigration leave. But, as we explain below, it has spread rather beyond this.

A typical rather sad case was that of Mr and Mrs Felber, an American couple who were evidently serious entrepreneurs. Mr Felber acquired a Tier 1 Entrepreneur visa and his wife a dependant visa. They came to the UK and set up a bed and breakfast business in Inverness in Scotland.

Everything evidently went well at first. They ran the business, successfully it would appear, and applied for extension visas after three years, which were granted. After a further two years they applied for Indefinite Leave to Remain, and here things went wrong.

To acquire the extension visas they had created at least two full-time jobs in the business, as the Immigration Rules require. But the Home Office in refusing the application for Indefinite Leave to Remain said that they should also have created at least two full-time jobs during the extension visa period. As they had not done so they were refused.

The Felbers challenged, and the matter eventually reached the Scottish Court of Session via judicial review. But in the event the court, whilst acknowledging that there was some level of complexity and confusion in the various relevant materials published by the Home Office, said that overall the rules and structure were not sufficiently unclear to make the Home Office’s decision unlawful. So the Felbers lost.

Another story – but this time with a happier ending – was that of Mr Anjum, a Pakistani national. He applied in Pakistan for his Tier 1 Entrepreneur visa and it was refused. Again, it ended up as a judicial review case, this time before the Upper Immigration Tribunal.

There were a couple of issues in this case, one of which was an allegedly unfair interview with the entry clearance officer. The published headnote to the Tribunal’s decision says it all: 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.”

Anybody who has had much exposure to UKVI interviews knows how unfair and occasionally ludicrous they can be. It very often seems to be the case (for whatever strange reason) that the interviewer is trying to make the interviewee mess up, so they can refuse the visa application. Because of the way in which the scheme works, the applicant can meet all the substantive requirements and score all the points but still be refused on the “genuineness” criterion. (Thus rendering the term “points-based system” at least partially meaningless.)

Mr Anjum succeeded in his judicial review, partly on the basis that the interview had been flawed: the decision was “quashed” and must now be retaken, but this time on a lawful basis.

When things go wrong, what can you do? Administrative Review is an imperfect process but sometimes it is successful. If Administrative Review fails then there may be Judicial Review. As in Mr Anjum’s case, it may assist.

But there are important differences between in-country cases and out of country cases, and in an in-country cases the issues are perhaps more serious, as in the case of the Felbers. If your in-country Judicial Review fails you are an overstayer, you have no immigration status, and you might therefore have to return home and give up running your business.

However, if things get really desperate there may be other avenues. The current overstaying rules, although stricter than previously, allow some scope for a fresh application. A good understanding of the overstaying rules may prevent a frustrated entrepreneur from falling too far on the wrong of the rules. A clever lawyer can, on occasion, prevent a disaster from happening.

If you are in trouble with your Tier 1 Entrepreneur situation you are well advised to seek out such a clever lawyer.

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