On 30 January 2013, the Minister of State for Immigration, Mark Harper, announced that urgent changes are being introduced to the immigration rules to 'tackle abuse in the entrepreneur migration route while protecting genuine entrepreneurs'. The new changes come just over a month after the new rules were brought in on 13 December which restricted the ability of Tier 4 students to switch into the Tier 1 (entrepreneur) route.
The changes set to come into force on 31 January 2013 will apply to all initial Tier 1 (entrepreneur) applications decided from that date. They will enable entry clearance officers/UKBA to refuse applications for leave to enter or to switch in the UK if they are not satisfied ‘on the balance of probabilities’ that:
- the applicant genuinely intends and is able to establish, takeover or become a director of one or more businesses in the UK within the initial six months following entry;
- the applicant genuinely intends to invest the funds in the business or businesses he/she has established; joined or taken over;
- the funds are genuinely available to the applicant and will remain available to him until such time as it is spent by the business or businesses; and
- the applicant does not intend to take employment in the UK other than that permitted under this route.
In making the assessment the entry clearance officer/UKBA can take into account the following factors:
- the evidence submitted;
- the viability and credibility of the source of the funds, the applicant’s business plans and market research into their chosen business sector;
- the applicant’s previous educational and business experience (or lack thereof);
- the applicant’s immigration history and previous activity in the UK; and
- any other relevant information.
Currently applicants are not required to present any information or documents regarding the business they intend to establish in the UK or information regarding their previous education or business experience. Since neither the immigration rules nor the policy guidance specify any additional supporting evidence to be submitted in support of the application it is assumed that the above factors will be checked in the event that the applicant is invited to attend an interview.
For those already in the UK with leave under this category, the UKBA may curtail their leave if the funds used in making the application cease to be available to the applicant unless the funds were spent in the establishment or running of the business or businesses.
It remains to be seen whether adverse decisions made as a result of these amendments to the rules will be open to challenge in view of recent case law.