Tier 1 Extension Entrepreneur Refusal - why, and what can be done?
By Amar Ali, Immigration Solicitor
Although the Tier 1 (Entrepreneur) visa route has been closed to new applicants as of March 2019, those already holding this visa can still apply to extend their visa up until 2023, with settlement being permitted until 2025.
If you have been living in the UK on a Tier 1 (Entrepreneur) visa for a while and are getting towards the end of your initial grant of leave, you may be considering extending your visa to continue to living and operating your business(es) in the UK. While an extension may seem straightforward, there is a large burden on you to prove you have complied with the various rules. For this reason, unfortunately, refusals are all too common. So, in this article, we are going to explore why your Tier 1 (Entrepreneur) extension might be refused and help you to ensure your application progresses as smoothly as possible. We also offer some practical advice on what to do if you are refused.
Applying For a Tier 1 Entrepreneur Visa Extension
While most visa extensions are straightforward, the Tier 1 (Entrepreneur) visa extension is rarely so. This is usually because the Tier 1 (Entrepreneur) visa is all about starting and growing a business, investing £200,000 (or £50,000 in some instances) in the specified manner as well as meeting the stringent requirements on job creation. You will be required to provide a large amount of information and supporting documents about your business in the UK and prove it has been successful.
So, what are the requirements that you must have met? To comply with the minimum standard laid out, you must have achieved the following in your UK based business(es):
- Employed 2 full-time staff members - these jobs have to have existed for at least 12 months during your granted leave period, be for 30 hours a week each and paid in line with the National Minimum Wage.
- Invested your either £50,000 or £200,000 into your business in a specified manner
- You must have registered your business with either HMRC as self-employed (for sole traders), or Companies House (for all other businesses) as a director of a new or existing business within 6 months of your entry to the UK
- Been actively and genuinely operating your business (the so collated 'genuine entrepreneur' test)
- Held the requisite maintenance funds of £945 for 90 days and £630 for each dependant thereafter for 90 days
You will need to be able to prove you have satisfied these criteria with documentary evidence.
Reasons For Refusal
Many applications are refused because of an interview that the Home Office would have arranged to ascertain whether or not you have met the above requirements. It is therefore important that you have played an active role in the collation of the documents so that you understand the specific information that the Home Office will want to know of any interview process. We can guide and assist you in advance of any interview in the event that we are formally instructed to represent.
Another basis in which applications are refused is that the investment relied on have not followed the specified route that the Home Office accept. For example, a Directors's Loan must be unsecured and insubordinated in favour of third party creditors and the relevant documents attested to confirm this.
In the event that you feel like you would benefit from having legal representations to guide you and review the relevant documents, please feel free to contact one of our Senior Associates who can assist you further.
Appealing A Refusal
The Tier 1 Entrepreneur Visa comes with no right of appeal. This means that the only way to challenge the outcome is to either reapply for an extension or apply for an Administrative Review - so that the decision is reviewed by a senior immigration official. This review asks for the Home Office to take a second look at your application if you feel the decision was incorrect the first time. Often, unless there is a significant error in their judgement, it is unlikely this decision will be changed.
Switching To An Alternative Visa
One option for those who are in the UK on a Tier 1 (Entrepreneur) visa and are struggling to extend it is to switch to an alternative visa route. While this may not be the ideal solution, the Tier 2 (General) Visa is an excellent way out for those on a Tier 1 (Entrepreneur) visa.
So how do you go about switching to a Tier 2 (General) visa? Well, first of all, you will need to find a Tier 2 Sponsor Licence holder (the government holds a list of them) and apply for a relevant position fulfilling the eligibility criteria for a Tier 2 General Visa, for example being offered a salary of at least £30,000 for most workers - though other options exists. If you are successful in your application, you will be given a Certificate of Sponsorship which you can use to support your Tier 2 (General) visa application. If you have been in the UK for a few years, you can use this time as part of the 5 years or 10-year routes to settlement to apply for Indefinite Leave to Remain. You can combine time spent as a Tier 1 (Entrepreneur) and Tier 2 (General) visa to qualify after 5 years.
Getting More Help
If you wish to discuss your options after a Tier 1 (Entrepreneur) visa extension refusal then please get in touch with one of our immigration lawyers. We can help to make representations on your behalf in order for your application to be reconsidered, or we can help you to switch to an alternative visa route such as the Tier 2 (General) visa. Whatever you choose, we can be here to give you advice and support along the way.
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