As we recently reported, the Home Office has introduced two new entrepreneur visas: the Start-Up visa and the Innovator visa.
These visas came live on 29 March: but rather prematurely it might appear, because there was no policy guidance available and the relevant immigration rules looked rather sparse.
However, we are pleased to say that both policy guidance documents have now become available and we are also pleased that it seems right to say that the rules for both these visas are far simpler than the rules for the Tier 1 Entrepreneur visa – which is now on the way out because it is closed to new entrants.
There is not an absolute difference between the Start-Up and Innovator visas: both enable migrants to set up businesses in the UK and start trading and both require similar endorsement arrangements from a recognised endorsement body. The Start-Up visa is aimed – as its name suggests – at new entrepreneurs whilst the Innovator visa at “more experienced” ones.
But the important difference, at this stage anyway, is that Innovators require £50,000 investments funds, whereas there is no such specific figure for Start-Ups. However, those switching from Start-Up to Innovator still have no specific requirement for investment funds. Innovators, unlike Start-Ups, have the possibility of acquiring settlement, so this is something worth bearing in mind, and it is also worth bearing in mind that the switch can be made at any time.
We thus envisage that a migrant may acquire a Start-Up visa, set up a business and trade successfully, and after just a few months look to switching to Innovator status and a route to settlement.
And what remedies are available if an application for one of these visa is refused? Not surprisingly, and in line with current thinking and practice, there is no right of appeal to the First-Tier Immigration Tribunal: only the right of Administrative Review with the Home Office (which is a remedy that has its limitations).
This is the same as for Tier 1 Entrepreneurs and, in this connection, it is important to realise that the Tier 1 Entrepreneur route will continue for those already on that route, so the Tier 1 Entrepreneur scheme is still going to be an issue for a while for those already in the system.
And thereby hangs a tale, which may encourage those who are valiantly struggling with Tier 1 Entrepreneur. In a recent case in the Court of Appeal called “Saiful Islam” the issue was that of “evidential flexibility”. This principle applies to Tier 1 Entrepreneurs (and Start-Ups and Innovators) amongst others, and is such that if an application has documents incomplete or missing the UKVI decision-maker may contact the applicant and ask for more or better documents.
The word “may” is very worrying because it seems to confer total discretion. The courts have been dealing with this subject for years and now we have some new learning from the Court of Appeal, which had Sir Ernest Ryder sitting on the bench, who is the Senior President of Tribunals, so we imagine that this decision might have special force.
The Tier 1 Entrepreneur appellant had allegedly not provided all the evidence that he should have done about his business and his application to the Home Office was refused. The Home Office did not ask him for any extra documents under the evidential flexibility principle. He applied for Administrative Review but this was refused. He applied for Judicial Review to the Upper Immigration Tribunal but this was refused. He renewed the Judicial Review application to the Court of Appeal, and here he finally struck gold. The court accepted the application and, after some very detailed analysis, decided that the Home Office not only could have asked the Appellant for additional documents but, impliedly, that they should have done.
The court’s words in the judgement (with our emphasis) did not at first appear to be conclusive on this point: “The Secretary of State was therefore required to consider whether to ask Mr Islam to provide [various documents]…..”, and had a similarly woolly quality to the words in the Home Office evidential flexibility rule. However, the final words of the judgement had a rather stronger character:
“In these circumstances I would allow the appeal and quash the decision so that the Secretary of State can allow Mr Islam the opportunity to provide the missing specified information and his application can be considered afresh.”
It seems from this that the Court of Appeal found that if the principles of evidential flexibility were properly engaged then the Home Office would be at fault for not requesting the relevant extra documents.
This decision could constitute an important victory in the long-running evidential flexibility legal battle and is likely to be helpful for those who hold entrepreneur visas.