Successful Administrative Review Challenge to Tier 1 (Entrepreneur) extension

By Dr Lusine Navasardyan

Dr Lusine Navasardyan is Director and Head of Corporate and Business Immigration at RVS Solicitors. Dr Lusine studied at Yerevan State University and the Bucharest University of Economic Studies. She is also a published author and a member of the Bucharest Bar. As a Director of RVS Solicitors, she is instrumental to the operation of the law firm, and as Head of Corporate and Business Immigration, she helps our clients to forge new futures in the UK.

Our team was approached by two clients, who were in the UK as a team of Tier 1 Entrepreneurs. The clients had applied for Tier 1 (Entrepreneur) extension within the legal time limits, but had received a refusal. They were seeking specialist advise on best options to resolve their immigration issue and continue living and working in the UK.

After the initial assessment, the clients were invited for a consultation with one of our specialist immigration solicitors. This was decided on the basis that the case presented certain complexities, in particular with the view that the entire documentation submitted with the application would have to be examined before our solicitors would be in position to help.

After the initial consultation and once all the documents were carefully examined by our team, the clients were advised that they would need to challenge the decision by way of Administrative Review.

What is Administrative Review

Administrative Review is a statutory remedy, ie a way to challenge a Home Office decision, if the applicant disagrees with the decision. As the name suggests, this is an administrative procedure, which means the case is re-examined by another caseworker and not by a judge. Not all cases carry the right to have the decision Administratively Reviewed. Your decision letter will tell you if you have such right.Normally, Administrative Review applications need to be made within 14 days, for in country applications and 28 days for Entry Clearance applications.

The first thing that our Tier 1 (Entrepreneur) specialist lawyers considered in this matter, was whether the clients were still within the above time-frame. Having determined that they were, our specialist team started to work on preparing the Administrative Review.

The best immigration lawyers will always consider the merits of any application prior to advising you to make any application or take any other steps. Our team looked into the reasons for refusal and considered them against the application the clients had submitted. The Administrative Review will only succeed if there is a demonstrable caseworker error in making a decision. So our specialist immigration lawyers examined the decision to determine whether such error had taken place. In doing so, they referred to the relevant Immigration Rules and how those were applied. Indeed, the team managed to identify such an error and prepare the Administrative Review application on that basis.

What are the Immigration Rules for Tier 1 (Entrepreneur) Extension applications? 

In order for an applicant to be successful in securing an extension under Tier 1 (Entrepreneur) route, they need to demonstrate the following:

• They have established, taken over or become a director of one or more genuine businesses in the UK, and have genuinely operated that business;

To meet this requirement the potential applicant must show that they have either:

• registered with HM Revenue & Customs as self-employed, or
• registered with Companies House as a director of a UK company, or member of a UK partnership.

The registration must have happened within six months of entering the UK  To demonstrate that the applicant continues operating the business at the time of application, they must demonstrate that within the three months before the date of application, they have been:

• registered with HM Revenue & Customs as self-employed, or
• registered with Companies House as a director of a UK company or member of a UK partnership.

2. Second limb of the test is demonstrating that they have genuinely invested the relevant amount of money (in the present case it was £200,000) into one or more genuine businesses in the UK;

3. The third limb has to do with job creation and the applicants must demonstrate that:

(a) they have either established a new business or businesses that has or have created the equivalent of at least 2 new full time jobs for settled workers, or

(b) joined or taken over an existing business or businesses and their services or investment have resulted in a net increase in the employment provided by the business or businesses for settled workers by creating the equivalent of at least 2 new full time jobs.

In either case, the jobs must have existed for at least 12 months during your most recent grant of leave.

The above are the specific requirements for the Tier 1 (Entrepreneur) extension applications and upon examining the matter, our immigration lawyers concluded that the requirements were met and the clients had submitted all the relevant evidence. The Decision also conceded this point and the requisite points were granted for the same.

Further to the above there are two other requirements, English Language requirement and maintenance requirement.

The first requirement was easily met by our clients, as they had demonstrated it with a previous application. Points were granted for this.

The Maintenance requirement refers to certain amount of funds should be available to the applicant for at least 90 days continuous period of time prior to the application. The amounts are £945 for the applicant and further £630 for each dependant. In the present case, one of the entrepreneurial team was a single applicant, while the other had a dependent wife, who had applied with him. The Home Office had refused both applicants claiming they both failed to show sufficient funds for themselves and their dependants.

Our immigration lawyers prepared detailed Administrative Review grounds in which thy evidence that in respect of the single applicant, the decision was clearly in error as the decision maker had held her to a higher maintenance requirement. In respect of the second applicant, who indeed had a dependant, our team considered his bank statements carefully and referenced it with the decision. Our specialist immigration lawyers then highlighted that there was only one occasion in which the funds had fallen below the required amounts, but for that specific day, the applicant had also provided another bank account showing some funds were available in that second account. It was true that the client had not provided the full 90 days for that account, but our immigration solicitors argued successfully that the evidence was sufficient to demonstrate the availability of funds and in any event evidential flexibility rules should should have applied. These state that should the decision maker consider that they require further evidence, they can ask for it, in particular if there is a document from a sequence that is missing. As such, the missing bank statements, if considered relevant, should have been requested.

On the basis of the above arguments, an Administrative Review was submitted on behalf of our clients and within less then 3 weeks the refusal decision was overturned and our clients were granted further leave to remain. Thanks to the diligence and expertise of our UK Immigration Solicitors, the clients were able to continue enjoying their lives in the UK and develop their business further.