In the recent case of Arshad & Ors (Tier 1 applicants – funding – “availability” : Pakistan) [2016] UKUT 334 (IAC) the Upper Tribunal considered in some detail the issue of investments in Tier 1 Entrepreneur applications.
It ruled, based on the facts of that particular case, that the full funds must be genuinely available at the time the application is made and implied that investment funds should be capable of being invested in the business ‘almost immediately’ after the grant of leave. It made the following call for the the Immigration Rules to be clarified:
‘We conclude with the observation that, in the interests of certainty and maximum clarity, consideration could usefully be given, if a viable and workable model could be found, to the introduction in the Rules of some time limit or time measurement for the actual investment of monies calculated from the date of a positive Tier 1 decision.’
The case concerned the issue of investments in Tier 1 Entrepreneur applications relating to more than 140 individuals who were seeking leave on the basis of an offer of funding by the same venture capital firm. The applications for leave were refused because the Home Office was not satisfied, inter alia, that the investment funds required under the Immigration Rules were genuinely available and this position was upheld by the First Tribunal.
The Upper Tribunal considered the issue and held that the venture capital firm did not have sufficient money to be able to fund all the entrepreneurs to whom it had made offers. It was not accepted that the full funds were genuinely available to any of them at the time of the application and it was not enough for applicants to show that they intended to make a partial investment after the grant of leave with the remaining funds being invested at a later, unspecified date. All the appeals were dismissed.
Although it was acknowledged that the Immigration Rules do not specify the date by which the funds must be invested, the Upper Tribunal concluded that it was ‘clearly implicit in the Rules’ that the delay between leave being granted and the investment being made should be very short.
This interpretation is however at odds with the lack of specific information in the Immigration Rules or Policy Guidance in relation to the timing of investments under Tier 1 Entrepreneur applications, particularly when other key time limits are clearly set out. As such, challenges against other refusals based on the timing of the investment may very well succeed.
However, mounting a legal challenge is likely to be disruptive and costly. In order to reduce the risk that the Home Office will refuse an application, those applying in this category would be wise to ensure when they make the application that the evidence filed in support clearly demonstrates that the funds are genuinely available and that there is a clear and justifiable time-table for the investment of the funds in the business.
If you need legal advice on the timing of investments in Tier 1 Entrepreneur applications or in relation to any other issue, please contact us. We maintain a 100% success record for Tier 1 Entrepreneur applications.
