Requirements for the new Innovator & Start-Up Visas

The much anticipated Statement of Changes including for Entrepreneurs and Investors is hot off the press today. Near the end of the 296 pages, you will find the new Appendix W, which contains the rules for “Workers”. The Start-up visa and Innovator visa categories will be introduced on 29 March 2019.

According to the Introduction to that Appendix, “It is anticipated that other categories for workers will be added to this Appendix as the immigration system is reformed over time.”

The new layout is actually sensible. There are general requirements for both routes and specific requirements for each category. In order to be granted leave under either category both general and specific requirements must be met.

This blog post is about the general requirements for entry clearance and leave to remain as an Innovator or Start-Up. We will also be publishing posts on the specific requirements for each of those categories.

General requirements for entry clearance and leave to remain as an Innovator or Start-Up

Age

Unsurprisingly, you will need to be at least 18 years of age.

Immigration Status

If applying for leave to remain in the Start-up category, you must already have leave as a:

• Start-up
• Tier 1 (Graduate Entrepreneur)
• Tier 2
• Tier 4 (General) with further restrictions or
• Visitor undertaking permitted activities as a prospective entrepreneur (per Appendix V)

To switch into the Innovator route, to the above list remove Tier 4 (General) and add Tier 1 (Entrepreneur). The assumption seems to be that if you are already here as a Tier 1 (Entrepreneur) you are an experienced businessperson so the Innovator (rather than Start-up) category is the applicable route for you.

As usual, you cannot be here in the UK in breach of immigration laws, unless your current periods of overstaying can be disregarded under paragraph 39E.

General Grounds for Refusal

As with Tier 1 (Entrepreneur) Migrants and (Graduate Entrepreneur) Migrants, you cannot fall under the General Grounds for Refusal.

Notably, I do not see any criminal records certificate requirement in Appendix W.

English Language

The requirement has increased from B1 to B2 on the Council of Europe’s Common European Framework for Language and Learning, which should not be an issue for nationals of majority English speaking countries or those with UK or equivalent degrees. However, if switching from Tier 1 (Entrepreneur) given that the requirement was B1, you will only be considered to have met the requirement in a previous successful application if you were under the pre-13 December 2012 Rules.

Therefore, you may need to consider whether you need to pass a new Secure English Language Test to the level of B2.

Maintenance Funds

On a positive note, maintenance funds are now £945 for entry clearance and leave to remain applications.

They have have remained what they were for in-country Tier 1 (Entrepreneur)  and Tier 1 (Graduate Entrepreneur) Migrants, but will also be that same figure if applying from overseas (rather than the previous £3,310)!

Maintenance can also be certified in a letter from the Migrant’s endorsing body, which is more akin to what Sponsor’s can do for Tier 2 Migrants.

Credibility

The biggest overhaul has been to the ‘genuine entrepreneur’ test, which has now become a credibility assessment. This is likely to be the most subjective part of the application and will need to be well-evidenced to prove your credibility, on the balance of probabilities.

What must you satisfy the decision maker of?

Three things:

1. That you genuinely intend to undertake, and are capable of undertaking, any work or business activity in the UK stated in your application.
2. That you do not intend to work in the UK in breach of the conditions. In W2.2 these include the usual ‘no employment as a doctor or dentist in training, or as a professional sportsperson’. Additionally, if you are an Innovator, no employment other than working for the business you have established. Note that Start-ups are not subject to this last condition.
3. Any money which you claim is available is genuinely available, as described, and that you intend to use it for the purposes described in your application.

What is taken into account in deciding if you are credible?

• Your endorsement
• Evidence you have submitted, and the credibility of that evidence
• Your previous educational, work and immigration history
• Declarations you have made to other government departments about your previous employment and activity in the UK (perhaps alluding discrepancies in income reported to HMRC and UKVI)
• The catch-all ‘any other relevant information’

Will you have to attend an interview?   Well, the decision maker may ask for you to attend one. We will have to wait for the accompanying Guidance to see if it provides any information on where interviews sit in the assessment process.

What if you fail to attend the interview?  Even if you fail to, and if you fail to provide a reasonable explanation, the decision maker may decide the application based on information and evidence you have already provided. This is a new and welcome development if it means that the application will then be considered and decided on the basis of your other evidence.

However, it is at odds with paragraph 320(7D) of the General Grounds for Refusal, which says that you are to be refused entry clearance, and paragraph 320(10), which says you should normally be refused leave to remain, if you fail, without providing a reasonable explanation, to comply with a request to attend for interview. Is there then mandatory or discretionary refusal if you fail to attend an interview without providing a reasonable explanation? Or do these paragraphs not apply to Appendix W (which then contradicts W3.6)?

Are there any circumstances in which they will not assess my credibility? As usual, if you fall to be refused on other grounds, the decision maker may decide not to carry out the credibility assessment. It is now explicitly said that in any reconsideration, the decision maker reserves the right to carry out this assessment.

Will further documents be requested?  The decision-maker has a discretion to request additional information and evidence from you or (and this is new) your endorsing body. These documents must be received at the specified address within 20 working days of the date of request. There is no “or else” in the Rule.

Cut-off date for sending documents/information

Under the Introduction to Appendix W it is said that, “Applications will be decided based on the information provided by the applicant and any other relevant circumstances at the date of decision, except where otherwise stated.”

Well it is otherwise stated in W3.1(a). One of the general requirements that applies for entry clearance, leave to remain and indefinite leave to remain as either an Innovator or a Start-Up, is that, “The decision maker will only consider documents received by the Home Office before the date the application is considered”.

The relevant date is, therefore, the date of consideration.

Evidential Flexibility

Under the Introduction it is said that “If the applicant meets the requirements, the application will be granted. If the applicant does not meet the requirements, the application will be refused”. This indicates that Appendix W, although removing a points calculation, continues the legacy of the points-based system. As support for this, the evidential flexibility provisions (W3.1(b)-(d)) basically mimic the current provisions under 245AA(b)-(d).

The points-based system was intended to be detailed, objective and bureaucratic; it reduced the exercise of discretion and promotes clarity above flexibility.  It is likely that what was said of PBS by Underhill LJ in Mudiyanselage is also true of Appendix W: “The clear message of those authorities, including Mandalia, is that occasional harsh outcomes are a price that has to be paid for the perceived advantages of 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” [56].

Even though Appendix W has shifted away from a points-based system, it will still be crucial to ensure you abide by the letter of the Rules and provide the very specific evidence required to show the English language, Maintenance and Category-specific requirements are met.  

Contact our Immigration Barristers

For expert advice in relation to an application under the Innovator, Start-up or Tier 1 (Entrepreneur) categories, contact our Immigration Barristers in London on 0203 617 9173 or complete our enquiry form.