Tier 1 Investor Visa: The ‘Control of Funds’ Requirement
It is a core principle of the Immigration Rules that in order to qualify for an initial grant of leave as a Tier 1 Investor, an applicant must have money of their own, under their control. In this post we look at how an applicant for a Tier 1 Investor visa can demonstrate the necessary level of control over their investment funds and the powers of the Home Office in this regard.
How can I demonstrate control of my investment funds?
The necessary level of control will exist where an applicant has had the money for a consecutive 90-day period, ending no earlier than one calendar month before the date of application, and provides specified evidence of the same as set out in paragraph 64-SD of Appendix A to the Immigration Rules.
The element of control must be clear from the supporting documentary evidence. For example, where an applicant is relying on money held on deposit in a bank account, they must provide either a personal bank statement for an account in their own name or a letter from the bank which confirms that the money is available in their name. Where the funds are held as an investment, the applicant must provide either portfolio reports demonstrating that they are the beneficial owner of the funds or other evidence of their holding showing that they are the owner.
Where an applicant has had the money that is to be relied on for less than 90 days before the date of application, the Immigration Rules at paragraph 64A-SD of Appendix A require alternative evidence that the money is under their control.
For example, where the money has been given to an applicant, they are required to provide an irrevocable memorandum of gift and a confirmation letter from a legal adviser which clearly shows that they have received the gift and that the legal ownership of the gift has transferred to them. Similarly, where the funds originate from the sale of an asset such as a business or property, the applicant must provide a deed of sale which shows their name and a confirmation letter from a legal advisor which clearly shows that the applicant received the money from the sale.
What if the investment funds are under the control of a partner?
Paragraph 61 of Appendix A to the Immigration Rules states that an applicant can use money belonging to their spouse, civil partner or unmarried or same-sex partner, provided that specified documents are provided to show that the money is under the applicant’s control.
The necessary element of control may be demonstrated through a declaration of gift of beneficial ownership of the money while retaining the legal title. This is an original declaration from the applicant’s husband, wife, civil partner, or unmarried or same-sex partner that s/he will permit all joint or personal money used to claim points for the application to be under the sole control of the applicant in the UK. The applicant must also provide a letter from a legal advisor confirming that the declaration is valid.
With the declaration of gift of beneficial ownership and legal confirmation letter in place, the supporting documentary evidence referred to in the previous section may be in the name of the applicant’s husband, wife, civil partner, or unmarried or same-sex partner.
What if a loan has been secured against the investment funds?
Paragraph 61A of Appendix A makes clear that where a loan has been secured against the money, such that another party would have a claim on the money if loan repayments were not met, then the money will not be viewed as being under the applicant’s control.
Is there anything else I need to be aware of in relation to control of funds?
Applicants for a Tier 1 Investor visa should be aware that providing the relevant specified documents as set out in the Immigration Rules is not the end of the matter. Even where the relevant specified evidence has been provided, paragraph 245EB(e) of the Immigration Rules gives the Home Office power to refuse an application for a Tier 1 Investor visa where an Entry Clearance Officer has reason to believe that:
- the applicant is not in control of, and at liberty freely to invest the, money;
- any of the money held by the applicant, or being made available to the applicant by a third party, was acquired by means of conduct which is unlawful in the UK, or would constitute unlawful conduct if it occurred in the UK; or
- the character, conduct or associations of any third party providing funds is such that approval of the application would not be conducive to the public good.
If the Entry Clearance Officer has reasonable grounds to believe that one or more of the above applies then no points will be awarded. For this reason, the specified evidence requirements of the Immigration Rules should be viewed, not as a complete code, but as the minimum evidence necessary to satisfy the Home Office as to the control of funds.
Contact our Business Immigration Barristers
For expert advice and assistance in relation to an application for entry clearance, leave to remain or settlement as a Tier 1 Investor, contact our business immigration barristers on 0203 617 9173 or via our enquiry form.