Making a successful application under Tier 1 Entrepreneur has become increasingly difficult as a result of the introduction of a ‘genuine entrepreneur’ test.
The majority of refusals typically centre around:
- the applicant’s failure to provide mandatory documentation in a format specified; or
- their failure to persuade the Entry Clearance Officer or Immigration Caseworker, either through the documents submitted or at interview, that they have a viable business proposal and suitable experience and/or skill to deliver it.
We advise our clients on the essential requirements for making a successful application under Tier 1 Entrepreneur and we maintain a 100% success record in this area. We highlight below some of the key issues that potential applicants need to consider.
Establishing the business
If you are in the UK in an immigration category that allows you to work on a self-employed basis (Tier 1 Graduate Entrepreneur, Doctorate Extension Scheme, spouse, unmarried partner, etc.), then it’s fine for your business to have commenced trading before your application under Tier 1 Entrepreneur is approved.
However, if you are in the UK in a category that does not allow you to work on a self-employed basis, you must be very careful and ensure that any preparatory steps you take towards establishing your business do not breach the conditions of your current stay and get in the way of you making a successful application under Tier 1 Entrepreneur .
If you are based abroad and are visiting the UK prior to making your application, you should limit any activity to conducting research, holding meetings in connection with establishing your business and other permitted activity under the visitor rules.
Examples of measures you can take if you do not have permission to work on a self-employed basis
- Preparing a business plan, including taking professional advice, is fine (and is essential in most cases unless you are competent in all aspects of business finance).
- Forming a company is also generally ok providing only the basic steps are taken.
- Contacting potential customers to find out if they might buy a product or service if it went to market is also ok providing it is done purely for business viability research purposes (to include in the business plan, for instance).
Examples of measures should not take if you do not have permission to work on a self-employed basis
- Securing orders from customers would be a step too far and would breach the conditions of stay.
- Taking payment from the business or employing staff is almost certainly going to be considered as a breach of your conditions.
- We would also suggest that you hold off on the website until the application is approved (though a ‘holding’ page that made it clear that you aren’t trading is probably something we would give you a green light on).
These are non-exhaustive examples and care should be taken when considering how best to make a successful application under Tier 1 Entrepreneur .
You also have to be careful if you are setting up a business with colleagues in the UK who don’t need to have immigration permission. You may all be directors but they may start taking steps you aren’t aware of (arranging meetings with suppliers, etc) which may present problems in relation to your status. Keep an eye on everything that is happening in the early stages and explain your situation and what you can and can’t do to your co-directors.
The pre-application stage of the process is important. You will be expected to have undertaken detailed market research and other preparatory steps, including via on-line research methods, to ascertain if your business idea for the UK is likely to be viable.
Social media profile
Before you file your application, make sure that the information contained on sites such as LinkedIn, Twitter, Instagram and Facebook is accurate and isn’t going to create any problems for your application.
If you have leave to remain under Tier 4 as a student, for example, and your LinkedIn profile highlights that you are a director of the UK business that is referred to in your Tier 1 Entrepreneur application documents, you risk the caseworker concluding that you are already working for the company. That could, in turn, lead to a refusal of the application and even removal from the UK and a potential ban on returning if you are formally accused of having breached the conditions of your stay as a student. If you have leave to remain as a student with work rights, you are not permitted to work on a self-employed basis and we would recommend that you wait until your application has been approved before you update your social media profiles.
Likewise if you are in the UK and do not have permission to work on a self-employed basis, don’t tweet about your products or business until you are approved under Tier 1 Entrepreneur. It may seem fairly simple to do, but tweeting about your business is a form of marketing and it would be difficult for you to successfully argue that you are not engaged in business activity.
Is it always necessary to submit full details of the business proposal?
Yes. As part of the process of making a successful application under Tier 1 Entrepreneur you should focus care and attention on this area. You can expect your business proposal and supporting documents to be scrutinised in detail. We can provide detailed advice on the requirements for your business plan.
Inexperienced business-person
If you are applying from abroad then it is more likely that your application will be scrutinised if, for instance, you are relying on funds provided by a third party (parents, for example) and you have little or no prior relevant business experience.
The Entry Clearance Officer may be of the opinion that your main intention is to live in the UK and that the Tier 1 Entrepreneur route is simply a vehicle to enable you to do that.
To avoid a refusal we recommend that you focus on providing the strongest possible evidence about your proposed business and your personal experience and skills. If you have little or no relevant work experience it may be a good idea for you to try and gain some before you make an application. You should also consider seeking professional assistance in relation to your business plan and documentation. We ensure that our clients work with suitable experts on this point.
The Home Office can curtail the leave of someone with status under Tier 1 Entrepreneur after they have arrived in the UK if they consider that they are not a genuine business-person or that they gained entry by deception. We think this is likely to increase so it’s important to actually put the business plan into action when you arrive in the UK and build your business.
Experienced business-person
If you are an experienced business-person then we would recommend that you focus on providing evidence that demonstrates your track-record in business. Remember, the Entry Clearance Officer won’t necessarily have heard of you or your other businesses so ensure the information really reflects your experience and reputation. Of course, you should always include a business plan.
The actual information supplied will vary depending on the individual and their skills and experience, the type of business that is going to be established and whether or not it is part of a global group of companies, for instance, the source of funds and the individual’s immigration history.
There are also separate rules for those who are switching into this category from inside the UK and those who will rely on an investment of £50,000.
Interviews and additional documents
A fairly high number of people who have filed applications under Tier 1 Entrepreneur are asked to attend an interview.
Sometimes you will be asked in advance to bring along certain documents the official would like to see in connection with your business. If they do not ask for this, or they only ask you to bring along one or two documents, we strongly recommend that you take a folder with you containing as much information about your business as possible. It is also a good idea to take copies with you so can you hand them to the caseworker during the interview. Keep a note of the documents you have provided in the event that your application is refused and you need to challenge that decision.
On other occasions applicants are asked to submit documents within a very short time-frame by post, courier, in person or by email. Again, we would advise that you submit as much information as possible. Do spend time to prepare information before you file your application so you are ready to respond quickly.
Processing times
In relation to making a successful application under Tier 1 Entrepreneur, we are finding that straightforward applications filed from inside the UK (for those who are in an immigration category that permits filing from inside the UK) are currently being dealt with around twelve to fourteen weeks. However, if you are called for an interview, this can add significantly to the time-frame. It may be significantly quicker (by several months in some cases) to leave the UK and file your application from your home country. The last application we filed for a client in the USA was processed in 48 hours. This does very much depend on the country in which you will make your application as processing times can vary significantly around the world.
Conclusion
The Tier 1 Entrepreneur application process can certainly no longer be regarded as ‘objective’ and making a successful application under Tier 1 Entrepreneur requires care, attention and a detailed knowledge of the Immigration Rules.
Applications are considered in a highly subjective manner taking into account a variety of factors such as the source of funds, the applicant’s circumstances, experience and history, the strength of the business proposal and the type of switch that is being made (in the case of in-country applications).
An application that is based on a solid business proposition, that is prepared carefully ensuring that sufficient but not excessive documentation is filed, will have a strong chance of not only being approved, but being processed fairly quickly.
The key to making a successful application under Tier 1 Entrepreneur is to tailor each application around the individual and to consider right from the start how an immigration official is likely to view it.
We have significant experience in helping clients to make a successful application under Tier 1 Entrepreneur. For further information about our service, please contact us.
