Tier 1 Entrepreneur: Complying with visa requirements during your stay in the UK
Once your Tier 1 Entrepreneur visa has been granted, it is important that you comply with the requirements of the Immigration Rules throughout your stay in the UK. If you fail to comply with the requirements as set out in Immigration Rules, your leave to remain may be curtailed by Home Office.
In what circumstances will the Home Office consider curtailing a migrant’s Tier 1 Entrepreneur leave?
The Home Office will curtail leave to remain as a Tier 1 Entrepreneur under paragraph 245DE(c) of the Immigration Rules if the visa holder fails to do one or more of the following:
- register with HM Revenue & Customs as self-employed; or
- register a new business in which they are a director; or
- register as a director of an existing business.
Tier 1 Entrepreneurs must meet these requirements within six months of the date that they:
- entered the UK after they were granted entry clearance in the category; or
- were granted entry clearance in the category if they are not able to establish when they entered the UK; or
- were granted leave to remain in any other case.
Leave to enter or remain granted to a Tier 1 Entrepreneur migrant may also be curtailed under paragraph 245DE(c) of the Immigration Rules if the funds required by the migrant in appendix A of the Immigration Rules cease to be available to the migrant, that is unless the funds have been spent in the establishment or running of their business or businesses.
In addition, the Home Office will also curtail leave to remain as a Tier 1 Entrepreneur, if the Entrepreneur visa holder breaches their conditions of leave by, for example, undertaking work outside their business or receiving public funds.
What if you fail to comply with the Entrepreneur visa requirements? Should you leave the UK and re-apply for a fresh grant of entry clearance as a Tier 1 Entrepreneur?
If you breach the formal conditions of your stay by, for example, undertaking employment other than for the business that you have established or by receiving public funds, and you make a voluntary departure from the UK at your own expense, any fresh application for a Tier 1 Entrepreneur visa will be automatically refused for a period of 12 months from the date of departure with reference to paragraph 320(7B) of the Immigration Rules. If you leave at the expense of the Home Office then this period increases to 24 months. But what if you fail to comply the requirements for an extension of stay as a Tier 1 Entrepreneur but do not actually breach any of the visa conditions?
If you fail to register a business within 6 months, or your investment funds cease to be available to you, these are not, strictly speaking, a breach of visa conditions. Therefore, such non-compliance cannot attract a mandatory refusal of entry clearance under paragraph 320 (7B) of the Immigration Rules. This being the case, it might be considered that the most appropriate way of addressing such non-compliance would be to leave the UK and re-apply for a fresh Tier 1 Entrepreneur visa straight away. However, it is not quite this simple.
Paragraph 37 of Appendix A to the Immigration Rules states that if an applicant has previously held leave to remain as a Tier 1 Entrepreneur in the 12 months prior to the date of application, then any application for entry clearance will be assessed against the requirements for an extension of stay, rather than the requirements for an initial grant of entry clearance. In practice, this means that any fresh application for entry clearance made within 12 months of the date of departure from the UK will be refused because the requirements for an extension of stay require the applicant to have registered a business within 6 months, invested not less than £200,000 (or £50,000) in cash directly into one or more businesses and have created at least two new full time jobs for persons settled in the UK.
Unfortunately therefore, the only way to remedy a failure to register a business in-time or a failure to maintain investment funds after entering the UK is to make a voluntary departure at your own expense and then wait for 12 months before re-applying.
In summary therefore, whether you have breached the formal conditions of your Tier 1 Entrepreneur visa or simply failed to comply with one of the requirements for an extension of stay, the appropriate remedy (unless switching into another category is an option) is to leave the UK and wait for 12 months before re-applying.
For advice on complying with the requirements of a Tier 1 Entrepreneur visa or assistance with preparing an application for entry clearance as a Tier 1 Entrepreneur, contact our London immigration barristers on 0203 617 9173 or by email to firstname.lastname@example.org