The team, headed by Dr Lusine Navasardyan, following Judicial Review proceedings, managed successfully obtained extension of Tier 1 (Entrepreneur) leave for an overseas business-person who had been refused extension of leave.
The client, who had already spent three years in the UK establishing and developing a business, had applied for extension after the initial 3 years. Her application was refused, on the basis of what the Home Office considered to be lack of specified evidence.
Eligibility criteria for extension of Tier 1 (Entrepreneur) leave
An initial Tier 1 (Entrepreneur) visa is issued for 3 years and 4 months. It needs to be extended, if the Applicant wishes to continue residing in the UK and operating their business.
At the time of extension, the following requirements need to be met:
- The Applicant has established or taken over a UK business (this means proving that the business exists and that it is registered in the UK, pays UK tax and has UK bank account)
- Has invested the £200,000 (or £50,000 if on that route) in a UK business they are running
- Has created at least 2 full-time jobs.
The above is basic listing of the requirements. All of the above are subject to very detailed and technical rules, in particular when it comes to evidencing these requirements. Tier 1 (Entrepreneur) whether at the stage of initial grant or extension, is one of the most difficult applications. The failure of nearly 50% of all cases makes the need to have the best immigration lawyers dealing with your case imperative. Most of the refusals in these applications happen due to the fact that the Applicants were not properly advised on the onset of their business venture of what the extension requirements are and how they need to behave to satisfy the same. Another major reason for refusals is not submitting the required specified evidence. This occurs, either due to the Applicants trying to apply by themselves, or not having legal advisers who are experts in the field. It is worth noting that due to specificity of Tier 1 (Entrepreneur) applications, you should seek advise from solicitors specialising in this route in particular, rather than generalist Immigration lawyers.
The Refusal and considerations for remedy
In the present case, the client was refused because the Home Office considered that they failed to provide the specified evidence for job creation.
Normally, when an application is refused, the main issue to be considered is whether the refusal should be challenged or a fresh application should be made. In many cases, making a new application is a good choice. For instance, if the refusal is reasonable and correctly arrived at, challenging the refusal makes little sense. Making fresh application makes sense, in particular in situations where the first application was made on time. This is because of legal provisions that extend person’s leave until such time when their application is decided. This is known as 3C leave. Further to this, if a fresh application is made within 14 days after the refusal of the initial, in-time application, the Home Office will disregard the overstaying. Therefore, in all the cases where a fresh application will offer stronger chances of success, it should be the first option.
Challenging the refusal should only be considered for scenarios where the fresh application either cannot be brought (for instance where issues of overstaying would mean refusal on the general grounds) or when there is genuine error on the part of the Home Office and there is a risk that error will preserve in fresh application.
In our case, the client had provided all the evidence they held, there were minor defects in evidential material, that could, however be rectified had the Home Office applied the evidential flexibility policy. It was, therefore decided that in this particular case, challenging the decision was the right way to go
Routes to challenging a PBS refusal
Currently PBS (Points Based System) decisions do not carry a right of appeal. The remedy available for these types of applications is Administrative Review. This is a Review of the decision carried out at the Home Office by a senior caseworker. As the forum for the review is still within the Home Office, it does not take a leap of imagination to understand that very few Administrative Reviews actually succeed. The current rate is at 8%. However, despite the low chances of success, the Administrative Review still needs to be carried out and in a very careful and professional manner, as any further challenge is dependent on that.
In instances where the Administrative Review fails, further challenge will take form of Judicial Review. Judicial Review is, in essence, the blanket mechanism that keeps administrative acts under the control of Judiciary. Unlike the right of Appeal, it is not dependent on being granted by the Administrative body making the decision. A successful Judicial Review is contingent on strong Administrative Review, as otherwise it can be considered by the judges that should the grounds been formulated in a correct manner before the Respondent, the result would have been different.
In all cases, before proceeding to Judicial Review, a detailed merits consideration needs to be carried out, as Judicial Reviews can mean high costs for the clients and potentially also shouldering the burden of the opposing party, should the claim fail.
In the particular case of this client, strong grounds were prepared for her Administrative review and later on Judicial Review. Despite the fact that the Home Office refused the Administrative review, once the case reached the Judicial Review stage and the claim was served on them, they agreed to review the decision. This led to the client’s application being granted and our client recovered the legal costs for the Judicial Review procedure.
Following the successful outcome of the Judicial Review, our client was advised on the future steps to ensure they would meet the Indefinite Leave to Remain requirements after completion of 5 years on Tier 1 (Entrepreneur) route. We currently actively work with the client to ensure their compliance.