We are seeing an increase in cases where an individual with leave under Tier 1 (Investor) has failed to invest a minimum of £750,000 within the ‘date specified’ as required under the rules. We explore this are of law below.
Paragraph 245EE(c) of the Immigration Rules (HC 395, as amended) states that:
‘…leave to enter or remain as a Tier 1 (Investor) Migrant may be curtailed if:
(i) within 3 months of the date specified in paragraph (d), the applicant has not invested, or had invested on his behalf, at least £750,000 of his capital in the UK by way of UK Government bonds, share capital or loan capital in active and trading UK registered companies other than those principally engaged in property investment, or
(ii) the applicant does not maintain the investment in (i) throughout the remaining period of his leave.’
There is therefore a clear obligation on the individual to both:
- make the investment within 3 months of the specified date, being the date of entry into the UK where there is evidence to establish that or the date entry clearance or leave to remain, as appropriate, under Tier 1 (Investor) was granted; and
- to maintain the investment.
Failure to do so can trigger a curtailment of leave and this will frequently not be known until the applicant applies for extension.
Can I make a fresh application if I fail to invest in time?
Unfortunately, under paragraph 56 of Appendix A of the Immigration Rules, an application for further leave to enter or remain under the Tier 1 (Investor) category will be refused if the applicant has held leave under that category within the 12 months prior to making an application.
This therefore rules out the possibility of simply making a fresh application for entry clearance or leave to remain under Tier 1 (Investor) in cases where the three month deadline has been missed.
Can I ask the Home Office to exercise discretion?
As from 6 April 2014 a new power was introduced under paragraph 56 of Appendix A of the Immigration Rules. This allows for an extension of leave to be granted in cases where the investment was not made within three months providing the reason for the delay was ‘unforeseeable and outside of the applicant’s control’.
Delays caused by the applicant simply failing to take timely action will not be accepted.
Conclusion
It is extremely important that individuals who are granted leave to enter or remain under Tier 1 (Investor) are clear as to the trigger date for the 3 month investment period. If unforeseeable circumstances do arise that are outside the applicant’s control and which lead to a delay in making the investment, it is important that these are explained clearly in the application to extend and that strong supporting evidence is also provided.
Where the delay in not unforeseeable and outside the applicant’s control, the applicant and their family members (if relevant) may wish to consider taking legal advice as to the further options available to them. This may include, for instance, changing the main investor applicant or filing an application under one of the other immigration categories in order to bridge the 12 month gap.
If you require further information about this or any other issue relating to the Tier 1 (Investor) category, please do contact us.
