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Court of Appeal considers the requirements of the Entrepreneur visa

In March 2015, the Court of Appeal published a decision on the Entrepreneur category: Iqbal & Dependants v Secretary of State for the Home Department [2015] EWCA Civ 169. This is currently the most senior court to have considered the Entrepreneur category.

The appeal related to part of the specified evidence requirements in paragraph 41-SD of Appendix A to the Immigration Rules, specifically the evidence required to demonstrate access to investment funds which are held in a bank account other than the applicant’s personal bank account.

The first appellant was applying to switch from Tier 4 (General) Student to Tier 1 (Entrepreneur) which is no longer permitted, but was allowed at the time he made his application. The funds on which he sought to rely were held in the accounts of third parties and letters from each bank were submitted with his application. However, each letter was missing specified information as neither stated the applicant’s name. The second Appellant was applying to switch from Tier 1 (Post Study Work) to Tier 1 (Entrepreneur) on the basis of £50,000 investment funds.

The Appellants sought to argue that the requirement to state the name of the applicant on a bank letter relating to a third party was absurd as it was prohibited in some countries. Permission to appeal was not granted on this ground. Second, the Appellants sought to argue that if an applicant can meet the requirements of 41-SD(b), it was not necessary to meet the requirements of 41-SD(a).

Paragraph 41-SD(b) (as it was at the time) related specifically to money held by third parties and did not state either way whether this evidence was required in addition to or instead of the documents required by paragraph 41-SD(a). The relevant provisions have since been amended to confirm that the documents described in these paragraphs are both required when an individual is relying on third party funds.

Although permission was granted on this ground, counsel for the Appellants accepted during the hearing that both sets of documents needed to be submitted, but then attempted to argue that the letter was required to state the account holder’s name, rather than the applicant’s. This argument did not find favour with the Court of Appeal, as it had no basis in the actual requirements of the rules.

This is not the first time that there have been reported decisions on the requirements of evidence for third party funding. Last year there were three linked decisions published by the Upper Tier Tribunal, each relating to the content of letters from banks in relation to third party funds. (Fayyaz (Entrepreneurs: paragraph 41-SD(a)(i) – “provided to”[2014] UKUT 296 (IAC), Durrani (Enterpreneurs: bank letters; evidential flexibility)[2014] UKUT 295 (IAC), and Akhter and another (paragraph 245AA: wrong format)[2014] UKUT 297 (IAC)).

LJ Hallett and LJ Sullivan indicated in their judgment that they had not been presented with evidence that the relevant bank letter was impossible to obtain and therefore they had not considered the appeal on this basis. It may therefore be, that if reliable evidence could be obtained that a specified document was impossible (as opposed to very difficult) to obtain, a different view would be taken.

The decision in this case does however reiterate how strictly the immigration rules will be applied and how difficult it can be to challenge a defect in an application, once it has been refused. This is why it is important for all Entrepreneur applicants to ensure that their applications will meet the technical requirements of the immigration rules, and to consider carefully how they will meet each individual requirement before making an application.

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