Challenging an Entrepreneur refusal on the basis of genuineness
Since 2013, Entrepreneur applications have been subject to an assessment of genuineness: whether the applicant is genuine in their intention to run or start a business in the UK. This assessment is done subjectively, by the decision-maker. In relation to the first application to enter the category, whether this is in the UK or an application for Entry Clearance, the Home Office will need to be satisfied that:
(i) the applicant genuinely intends and is able to establish, take over or become a director of one or more businesses in the UK within the next six months;
(ii) the applicant genuinely intends to invest the money into their UK business(es);
(iii) that the money is genuinely available to the applicant, and will remain available to him until such time as it is spent for the purposes of his business or businesses;
(iv) if the applicant is relying on one or more previous investments to score points, they have genuinely invested all or part of the investment funds into one or more genuine businesses in the UK;
(v) that the applicant does not intend to take employment in the United Kingdom other than for their own business.
The Rules then go on to set some parameters for what the decision maker should take into account when making this assessment:
(i) the evidence the applicant has submitted;
(ii) the viability and credibility of the source of the money available;
(iii) the viability and credibility of the applicant’s business plans and market research into their chosen business sector;
(iv) the applicant’s previous educational and business experience (or lack thereof);
(v) the applicant’s immigration history and previous activity in the UK; and
(vi) any other relevant information.
The Rules also give the decision maker the option to request further documents from an applicant or to invite them to an interview to make an assessment. The decision-maker is expected to make a broad assessment based on the applicant’s previous work and education history as well as making an assessment of their business plan, as to whether this the plan of a genuine entrepreneur. So what happens if the decision maker does not get that assessment quite right?
Genuine entrepreneur refusal: To challenge or to reapply
The first thing to do when faced with a refusal decision based on genuineness is to obtain the transcript of the interview and check if it was recorded accurately. The transcript will be just a copy of the interviewers notes, as interviews are not usually tape recorded, and therefore sometimes they include errors.
The biggest issue in challenging a decision is that in either of the methods open to Applicants are limited to being a review of the previous decision and so generally it is not possible to introduce new evidence as part of a challenge, except in limited circumstances. This means that in some cases, for example where there has been limited evidence provided with the application, or where a number of incorrect answers about the business have been provided in interview, it may be better to prepare a new application, rather than attempting to challenge the refusal decision.
Applicants should be aware, however, that the Entrepreneur category is closing to new applicants from 29 March 2019, meaning that the option of making a new application in this category will not be open to those who have not previously held Entrepreneur leave in the past 12 months, and instead they will have to consider other routes.
Genuine entrepreneur refusal: Administrative Review
If an applicant decides to challenge the decision, the first step is to lodge an Administrate Review. This should be done within 14 days of the decision when in the UK or 28 days if applying for Entry Clearance.
Administrative review is a process where you can ask a different person in the Home Office to review the decision that has been taken. The caseworking errors that are likely to be relevant to a refusal based on genuineness are:
(d) Where the original decision maker otherwise applied the Immigration Rules incorrectly; or
(e) Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.
Common errors that the Home Office make include:
- Failing to apply the rules correctly by considering only the interview and not the other evidence submitted;
- Failing to give any consideration to business or work experience;
- Failing to keep an accurate record of the interview;
- Applying the wrong standard of proof, as Entrepreneurs only need to satisfy the Home Office on the balance of probabilities that they are genuine;
- Being unfair in the interview.
Relevant errors should be identified to the Home Office and the decision will be reviewed. The Home Office will decide whether to uphold their decision or to withdraw it and make a new decision. If they decide to overturn their decision, this doesn’t necessarily mean it will lead to a grant of status. The Home Office can re-refuse the application for different reasons, or they can decide to re-interview, which could lead to a grant or a further refusal, which would carry a further right of Administrative Review.
The Administrative Review process is an internal mechanism in the Home Office and has to be viewed as such. It is not an independent and there is not Judicial oversight in the process.
Genuine entrepreneur refusal: Judicial Review
In the event that Administrative Review is not successful, the applicant can then challenge the decision by Judicial Review. Again, this is a review of the decision which has been taken and it is not normally possible to submit new evidence in a Judicial Review. It is, however, an opportunity to ask a Judge to consider if the Home Office have applied the law correctly and if their decision is a rational one.
Although the Judicial Review process can be lengthy, an advantage is that it needn’t be a costly process. In the event that an applicant is successful in an application for Judicial Review, the normal course of events is that the Home Office would be asked to pay the costs involved in bringing the Judicial Review claim. The downside, however, is that in the event that the Home Office are successful in defending their claim in court, the applicant may be asked to pay their costs.
For this reason, it is very important that anyone seeking to challenge a decision gets advice about the merits of challenging their decision at any early stage.
Contact our Immigration Barristers & Lawyers
For further advice contact our immigration barristers on 0203 617 9173 or firstname.lastname@example.org