The Tier 1 Entrepreneur visa route closed to new applicants on 29 March 2019. However, if you entered the category prior to this date, a Tier 1 Entrepreneur visa extension application may well be within your sights. In this post we look at two recent decisions of the Court of Appeal and Administrative Court which emphasise the importance of ensuring that a Tier 1 Entrepreneur visa extension application is supported by the right documents, in the right format.

The Tier 1 Entrepreneur visa route closed to new applicants on 29 March 2019. However, if you entered the category prior to this date, a Tier 1 Entrepreneur visa extension application may well be within your sights. In this post we look at two recent decisions of the Court of Appeal and Administrative Court which emphasise the importance of ensuring that a Tier 1 Entrepreneur visa extension application is supported by the right documents, in the right format.

Requirements for a Tier 1 Entrepreneur visa extension

To extend your Tier 1 Entrepreneur visa you will need to demonstrate that: 

• You registered as a business director or as self-employed within 6 months of entering the Tier 1 Entrepreneur category;
• You are still registered as a business director or as self-employed within the 3 months prior to your date of application;
• You have invested at least £200,000 or £50,000 (depending on the amount your initial application was based on) in a business or businesses in the UK;
• You have created at least two full-time jobs for persons settled in the UK and these jobs have existed for at least 12 months;
• You have established, taken over or become a director of a genuine UK business, genuinely operated that business and genuinely intend to continue operating the business;
• You are competent in the English language to at least CEFR Level B1 (equivalent to IELTS 4.0 in reading, writing, listening and speaking);
• You have enough additional money to support yourself without relying on public funds.

Documents required for a Tier 1 Entrepreneur visa extension

Appendix A to the Immigration Rules sets out various strict requirements in terms of the documents that must be provided in support of a Tier 1 Entrepreneur visa extension application.  Two recent decisions from the Court of Appeal and Administrative Court have demonstrated the need to pay close and particular attention to the specified evidence requirements as prescribed in Appendix A of the Immigration Rules.

R (Sajjad) v SSHD [2019] EWCA Civ 720

In R (Sajjad) v SSHD [2019] EWCA Civ 720, the appellant submitted an application for further leave to remain in the Tier 1 Entrepreneur category.  The application was refused by the Home Office on the basis that the investment claimed was a director’s loan, but the specified evidence for a director’s loan (a legal agreement between the appellant and the business) had not been provided.

The appellant sought administrative review of the Home Office refusal decision, but the decision was upheld. He then sought permission to apply for judicial review, but this was also refused. The subject of the appeal to the Court of Appeal was whether or not permission for judicial review should have been granted.

The appellant had provided copies of unaudited financial statements. A summary of the company’s creditors showed a balance of £560,787 outstanding on the Director’s Current Account. A letter from the company’s accountants stated that “the amounts deposited by Mr Sajjad in the company” was a total sum of £495,470.  A letter from the accountant referred to the funds transferred to the company by the appellant as being a director’s loan.  The Home Office therefore understood the method of Mr Sajjad’s investment to be a director’s loan.

Other documents provided showed that the total figure included payments which the appellant had made, from his personal account, to creditors of the company and other payments made by him directly into the company’s bank account.

Importantly, the appellant had entered the words “not applicable” in a section of the application form headed “legal agreement (for director’s loans only)”.

The Court of Appeal nevertheless agreed with the Home Office that as the letter from the accountant made reference to a director’s loan, the investment was a director’s loan, and that by failing to provide the specified evidence, there were no arguable grounds for judicial review.

Khajuria, R (On the Application Of) v SSHD [2019] EWHC 1226 (Admin)

In Khajuria, R (On the Application Of) v SSHD [2019] EWHC 1226 (Admin), the Claimant was unable to submit Full Payment Submissions (FPS) because his company employed only part-time workers on a low wage. This meant that they were not required to register for PAYE. His application was refused as this specified evidence were not provided.

The Claimant challenged the requirement to provide FPS and argued that it was unreasonable. He also argued that discretion should have been exercised in his favour.

The Court held that being unable to meet the rule through no fault of the applicant’s own was not sufficient to make the rule as a whole unreasonable or therefore unlawful.

The Court also held that applicants who cannot satisfy the requirements of the strict points-based system cannot expect discretion to be exercised in their favour, except within the limited scope of evidential flexibility.

The Court did point out that it was open to the Claimant to make a fresh application for leave to remain outside the Immigration Rules and because this application would be outside the points-based system, it would be open to the Home Office to exercise a discretion. The Court expressed the hope that on the facts of the case discretion might be exercised in the Claimant’s favour in response to such an application.

Comment

We now have two recent decisions from the higher courts which, at their heart, say the same thing: Tier 1 Entrepreneur visa extension applications must, with very limited exceptions, meet the strict specified evidence criteria of the Immigration Rules.

This is not a new departure for the courts.  The objective of the points-based system is to enable the Home Office to process large numbers of applications fairly and expeditiously by applying clear and objective criteria.  Because of this, it is well established in case-law that applicants under the point-based system must take great care to comply with its requirements.

In Kaur v SSHD [2015] EWCA Civ 13 Burnett LJ (as he then was) said at paragraph 41:

“The points based system for determining whether to grant leave to enter or to remain in the United Kingdom… is designed to achieve predictability, administrative simplicity and certainty. It does so at the expense of discretion, that is to say it is prescriptive. The consequence is that failure to comply with all its detailed requirements will usually lead to a failure to earn the points in question and thus refusal.”

Similarly, in SSHD v Raju [2013] EWCA Civ 754 Moses LJ said, at paragraph 12, that “there is no room in the points based scheme for a near miss”.

In Mudiyanselage v SSHD [2018] EWCA Civ 65, Underhill LJ, similarly observed at paragraph 59:

“… occasional harsh outcomes are a price that has to be paid for the perceived advantages the PBS process. It is important not to lose sight of the fact that the responsibility is on applicants to ensure that the letter of the requirements of the PBS is observed: Though that may sometimes require a good deal of care and attention to detail, because of the regrettable complexity of the Rules, it will normally be possible to get it right”.

Sir Brian Leveson P expressed a similar view at paragraph 145:

“These are hard-edged decisions but the requirements of the PBS, Rules and Guidance are precise. Those who seek to make applications of this nature must take the utmost care to ensure that they comply with the requirements to the letter; they cannot expect discretionary indulgence beyond the very limited areas provided by evidential flexibility.”

The more recent decisions in R (Sajjad) v SSHD and Khajuria, R (On the Application Of) v SSHD, build on and serve as a useful reminder of the position of the courts, which is that applicants must provide the documents that are identified as specified evidence in the Immigration Rules.  Moreover, these documents must be in the format specified and contain all the specified information.  If the specifications are not adhered to in their entirety, a Tier 1 Entrepreneur visa extension application is likely to be refused. 

Contact our Immigration Barristers

For expert advice and assistance in relation to a Tier 1 entrepreneur visa extension application, including in relation to the specified evidence requirements of the rules, contact our immigration barristers and lawyers in London on 0203 617 9173 or via the enquiry form below.