Tier 1 Entrepreneurs: What to do if you are refused on the grounds of genuineness
The genuine entrepreneur test was first brought into the Immigration Rules in January 2013; first applying only to initial applications to enter the category and then later being applied to extension and settlement applications as well. The test is relatively vague and can be applied inconsistently. This article will consider what the genuine entrepreneur test is, and what options individuals have if their application is refused on the basis that they are not genuine.
The genuine entrepreneur test
The Home Office must be satisfied, on the balance of probabilities, that an Entrepreneur is genuine in stating that they intend to run a business in the UK, or when they say they have been running a business in the UK. This means that the business has not, or will not, just exist on paper, but that it will, or has been, a genuine commercial enterprise. There are various factors that the decision maker will take into account, but in reality it comes down to the documents submitted and the answers given in interview.
The problem for applicants is that while there is guidance on what the Home Office will consider, there is no definitive list of what must have happened for an applicant to be considered genuine. This can leave even the most committed and able businessperson with a refusal decision, because, for example, the Home Office consider that they have not undertaken sufficient market research for the business, despite the rules not stipulating how much is enough. It could also leave a knowledgeable entrepreneur refused because they have not recalled answers to obscure questions in interview.
What can be done in the event of a refusal decision?
The first thing an Applicant should do is to request the interview transcript. This will contain a lot of information and is a necessary document to consider what action should be taken. There are broadly two options for individuals and they are not necessarily mutually exclusive. The first is to seek to challenge the decision, and the second is to submit a fresh application.
Option 1: Challenging a decision
There is no longer a right of appeal for Tier 1 (Entrepreneur) migrants, unless the application was submitted before 2 March 2015. Therefore the initial route of challenge will be Administrative Review (AR).
In order to be successful in AR, an applicant will need to show that their refusal decision contains a case working error. The most common grounds for AR are that the decision maker has applied the Immigration Rules incorrectly, or that the decision maker has failed to apply their own policy. The AR mechanism is simply a review of the material already submitted (with very few exceptions) and therefore is not appropriate where new evidence is necessary to demonstrate that the applicant is genuine.
In the event that an AR is refused, the next option is Judicial Review proceedings (JR). This allows you to take the Home Office to court to challenge the refusal. While this allows an independent Judge to review the decision, there is a very strict test which must be met in order to succeed. Similar to AR, there are only limited circumstances where fresh evidence can be included with a JR. If it is necessary to show new evidence in order to show that you are genuine, then JR may not be the best option.
Option 2: Fresh Application
When you have been refused on the basis that you are not genuine, it is possible to make a further application to the Home Office with new and better evidence that establishes that you are genuine in your intentions. The Home Office will consider that they have already found you to be not genuine on a previous occasion, so you will need to consider options very carefully before embarking on a new application. For example, if you had just applied at too early a stage in your business planning or had provided too little evidence, then this is potentially something that can be easily remedied. However, if the Home Office has found your business plan to be misconceived or not viable in the UK, then you may need to consider what it is that you want to do. A fresh application should only be made if and when previous criticisms can be addressed.
How to decide what to do
There will be a number of different factors which affect which option is most appropriate in your circumstances. You may want to consider the relative costs and timescales of each option and how this fits in with your plans for your business. An important factor will be whether you want to rely on new evidence, new plans or new circumstances. Additionally, for anyone in the UK, it will be necessary to consider the effect on existing leave and any steps that must be taken to preserve current leave to remain in the UK.
Contact Our immigration barristers
For further advice about challenging a Tier 1 (Entrepreneur) refusal decision or making a fresh application contact our immigration barristers on 0203 617 9173 or via our enquiry form.