On 30 January 2013, the UK Border Agency (UKBA) made a number of changes to the Immigration Rules for the Tier 1 (Entrepreneur) category to introduce a ‘genuine entrepreneur’ test. The changes will take effect on 31 January 2013 and will affect all applications decided after this date, even if they were submitted prior to 31 January 2013.

The changes can be summarised as follows:-

Where the UKBA has concerns, it may ask the applicant to demonstrate that the funds relied on to make the application remain available beyond the date of the application and the full amount continues to be held in the manner specified in the guidance until invested in the applicant’s business in the UK (see also the Tier 1 (Entrepreneur) Policy Guidance Note for further details).

  • To comply with the definition of ‘available’, the funds must be in the applicant’s possession or in the financial accounts of a UK incorporated business of which the applicant is a director or available from the third party or parties named in the application
  • If relying on third party funding from a donor, the declaration from the donor must confirm that the funds will remain available to the applicant until they are transferred to the applicant or to the applicant’s business
  • Additionally, if concerned about the applicant’s genuine intention to establish a business in the UK, the UKBA reserves the right to request further information and may ask for the applicant to attend an interview
  • Finally, if an individual already has leave as a Tier 1 (Entrepreneur), the UKBA may curtail this leave if the funds used to make the application cease to be available to the applicant before being spent in establishing or investing in a business. ‘Spent’ excludes spending on the applicant’s own remuneration.

The guidance sets out what checks will be carried out during the application process but it is unclear how ongoing checks will be undertaken to ascertain whether or not the funds remain available to the applicant until invested in the UK business.