Extending a Tier 1 Investor or Entrepreneur visa from abroad
While most people will prefer to remain in the UK to make their extension application in the Tier 1 (Entrepreneur) or Tier 1 (Investor) category, there are a number of circumstances where it will be necessary or advantageous to leave the UK to make the extension application. In this article we will look at the reasons why an Investor or Entrepreneur might want to apply for a Tier 1 extension from abroad and how to deal with any potential problems that might arise from extending a UK visa from overseas.
Why apply for a Tier 1 Investor extension or Tier 1 Entrepreneur extension from abroad?
Sometimes the need to make an application from abroad will arise for reasons outside the control of the Investor or Entrepreneur, for example due to the need to travel for either business or personal reasons near the time that the extension is due. In this case, extending a visa from overseas will be unavoidable.
Previously, it was advantageous for Investors and Entrepreneurs to apply for an extension of stay from abroad because their applications could be processed quicker using the priority services available for entry clearance applications. Now that Investors are able to apply for further leave to remain using priority services within the UK, this reason has mostly fallen away for them at least. Although, given the ongoing lack of availability for in-country appointments, some Investors may still find that it is quicker to apply from abroad. It is still not currently possible to apply for a Tier 1 Entrepreneur visa extension in-country via a priority service and with waiting times of up to 8 weeks, applying for a Tier 1 Entrepreneur visa extension from abroad may be a more attractive option for some Entrepreneurs.
There is also potentially some more flexibility in extending from abroad, as individuals are able to travel even when an application is pending, with most centres abroad now offering the option to return passports during processing. While individuals in the UK are able to keep hold of their passports now, they are not permitted to travel between attending their biometrics appointments and getting the decision on their application or their applications will be withdrawn.
Anyone considering these options should look at the priority and additional services offered in the place from which they will make their application, to ensure there will be the anticipated benefits before leaving the UK.
Potential problems when extending an Investor or Entrepreneur visa from outside the UK
The first problem with making an application for an extension of stay as a Tier 1 Investor or Tier 1 Entrepreneur from abroad is that you will not be able to return to the UK while your application is pending. This may cause problems if your application is delayed or refused and you need to wait for Administrative or Judicial Review.
Secondly, anyone who is seeking to apply for ILR at the earliest opportunity will need to be careful when they apply. Paragraph 245AAA of the Immigration Rules states that during the relevant two, three or five year period:
(ii) the applicant has existing limited leave to enter or remain upon their departure and return except that:
(1) where that leave expired no more than 28 days prior to a further application for entry clearance which was made before 24 November 2016 and subsequently granted, that period and any period pending the applicant’s re-entry into the United Kingdom shall be disregarded; and
(2) where, on or after 24 November 2016, the applicant makes a further application for entry clearance during the currency of continuing limited leave which is subsequently granted, the period spent outside the UK with continuing leave and any period pending the applicant’s re-entry into the United Kingdom shall be disregarded;
(3) where, on or after 24 November 2016, the applicant makes a further application for entry clearance within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application for indefinite leave to remain, why the application could not be made during the currency of continuing limited leave, or
(4) where a successful application for entry clearance is made following the refusal of a previous application to which (2) or (3) otherwise applies, and the application was made within 14 days of that refusal (or the expiry of the time-limit for making an in-time application for administrative review, or any administrative review or appeal being concluded, withdrawn or abandoned or lapsing),
that period spent without existing leave, pending the applicant’s re-entry into the United Kingdom, shall be disregarded;
This means that before 24 November 2016, if someone left the UK after the expiry of their leave, the application could still be made from abroad, within 28 days, and this would not interrupt the applicant’s continuous residence. However, this is no longer the case and an applicant can no longer leave the UK after the expiry of their leave to make an entry clearance application, without interrupting the continuity of their leave, unless there is good reason for they delay in their making their application.
A further issue is that days spent outside of the UK will count towards the 180 days absences permitted in each year. Anyone who already has high absences in the relevant year, or expects to need to travel in the following 12 months may want to avoid this action, as it may end up delaying the date on which they are eligible to apply for ILR. As above, although there are priority services available for Entrepreneurs and Investors at a large number of application centres, if an application is refused, this could add significantly to the time a person spends outside of the UK while they go through Administrative Review, Judicial Review or making a fresh application.
Making the Investor or Entrepreneur Visa Extension Application From Overseas
The application is made as normal for an Entry Clearance case using the relevant online form or if the service is not available in the country you intend to apply, then the visa4UK website. In the drop down when selecting the application form, there are different options for initial applications and extensions. Applicants should be sure to select the correct option.
The Immigration Rules confirm that any application for Entry Clearance made within 12 months of the applicant last holding leave as a Tier 1 Entrepreneur or Investor will be assessed under the extension criteria.
Although the Tier 1 (Entrepreneur) category is closed to new entrants, the rules allow for individuals who hold or previously held leave in this category within the last 12 months to apply for Entry Clearance. Paragraph 245D(a)(ii) states:
(ii) Individuals who have entry clearance, leave to enter or leave to remain as:
(1) a Tier 1 (Entrepreneur) Migrant
(2) a Tier 1 (Graduate Entrepreneur) Migrant, or
(3) a Start-up migrant, having previously held leave as a Tier 1 (Graduate Entrepreneur) Migrant,
or have had such leave in the 12 months immediately before the date of application, may apply under these rules to extend their stay or for indefinite leave to remain.
This is replicated in paragraph 245DB. For Tier 1 (Entrepreneur) migrants, paragraph 37 of Appendix A states:
Available points are shown in Table 5 for extension applications for applicants who have entry clearance, leave to enter or leave to remain as a Tier 1 (Entrepreneur) Migrant, or have had such leave in the 12 months immediately before the date of application.
While, for Tier 1 (Investor) migrants, paragraph 56 states:
- (a) Available points for entry clearance or leave to remain are shown in Table 8A for an applicant who:
(i) has had entry clearance, leave to enter or leave to remain as a Tier 1 (Investor) Migrant, which was granted under the Rules in place from 6 November 2014, in the 12 months immediately before the date of application, […]
(b) Available points for entry clearance or leave to remain are shown in Table 8B for an applicant who:
(i) has had entry clearance, leave to enter or leave to remain as a Tier 1 (Investor) Migrant, under the Rules in place before 6 November 2014 in the 12 months immediately before the date of application; […]
The basis of the application should be made clear in the covering letter to assist the Entry Clearance Officer in applying the Immigration Rules correctly.
Can I Apply For Indefinite Leave To Remain (ILR) as a Tier 1 Investor or Tier 1 Entrepreneur From Abroad?
Indefinite Leave to Remain applications in the Tier 1 Investor and Tier 1 Entrepreneurs categories must always be made from within the UK.
Contact our Immigration Barristers & Lawyers
If you would like to apply for a Tier 1 Investor or Tier 1 Entrepreneur extension from abroad, contact our immigration barristers on or 0203 617 9173 or via our enquiry form below.
