Entrepreneur Extension Applications: Genuine Entrepreneur Test
In January 2013, the ‘genuine entrepreneur test’ was introduced for applicants applying to enter the Tier 1 (Entrepreneur) category, for both in-country and entry clearance applications. This test only applied to the initial application made to enter the category, and once in the category Entrepreneurs did not need to meet any further subjective test about the genuineness of their business activity. At the extension and settlement stages, it was simply necessary to provide the required documents to obtain the points claimed.
As of 6 April 2015, the genuineness test will now apply to all extension and settlement applications too. This is for all applicants, including those who entered the category before 6 April and even those who entered the category before January 2013 who did not even need to show that they were a genuine entrepreneur as part of their initial application.
For many entrepreneurs this will be a worrying development; not because they are not genuine, but because their futures are now less certain. While the points based criteria are objective, the genuine entrepreneur test is entirely subjective. There is no list of specified documents that the individual must have, or list of things that you or your business must have achieved by a certain date. It essentially affords an individual caseworker who may have no business experience and only basic training, the opportunity to question an entrepreneur’s business and personal decisions over the previous three years and ultimately gives those caseworkers a wide discretion to refuse applications based on their own limited understanding.
The genuineness test at the extension stage is more problematic than at the initial stage. For example, if an entry clearance application is refused because the individual has failed to adequately demonstrate that they are genuine, they may take action to improve their application for example, undertaking further study or work experience, undertaking more market research or improving their business plan. They could then apply again with a higher chance of being successful. This will not work for extension applications.
The genuineness test is both forwards looking at the entrepreneur’s future intension but also backwards looking at what individuals have done over the previous three years. This means that an individual caseworker could impose a requirement, despite it not being in the rules or guidance, and then refuse an application on the basis that this requirement had not been met over the previous three years. This sort of problem is unlikely to be remedied on making a fresh application, because an entrepreneur cannot change what they have done over the previous three years. This, coupled with the new limited right of appeal and introduction of Administrative Review may leave an entrepreneur with limited options to challenge an unfair refusal.
How to approach the Genuine Entrepreneur test
We would recommend that throughout your stay in the UK, you collate the documents that will help show that you are a genuine entrepreneur when you come to make your next application.
In their modernised guidance, UKVI has provided a list of documents that would be helpful for those making initial applications, however, no such list has been provided for those at the extension or settlement stage. The types of documents that will assist will probably vary depending on the type, size and number of businesses that you are running.
As the UKVI are looking at the full three year period, this is not an application that should simply be prepared in the month before your leave expires, but ideally should be something that you work on throughout your stay in the UK to ensure that you will be able to successfully extend your stay and then settle in the Tier 1 (Entrepreneur) category if this is your ultimate intention.
For further advice and assistance in relation to extending your stay in the UK as a Tier 1 Entrepreneur, please contact our specialist immigration barristers on 0203 617 9173 or firstname.lastname@example.org.