Tier 1 Entrepreneur Visa Case Overviews with Links to their Full Judgements

Tier 1 Entrepreneur Visa Case Overviews with Links to their Full Judgements

By | 2018-05-10T05:55:13+00:00 January 19th, 2018|Categories: Tier 1 Entrepreneur|Tags: , |

Case Study for Tier 1 Entrepreneur Visa

Not all cases are the same. Hence, judgements may always take into account specific aspects of a particular case. Thus, it is useful to have a look at the holdings and judgements of external cases in order to get an overview of the manner in which a typical case is assessed and judged. The following are a few cases dealing with the Tier 1 Entrepreneur Visa UK:

Evidential Flexibility Continues to Play a Role in Tier 1 Entrepreneur Visa Judgements

Evidential Flexibility Continues to Play a Role in Tier 1 Entrepreneur Visa Judgements

This was an application for permission to appeal to the Court of Appeal where Lord Justice Elias considered the retrospective applicability of the changes to evidential flexibility. The Appellant had applied before the change in the rules which allowed evidential flexibility to be exercised where information is missing from a specified document. Elias LJ noted that the new provision would have been of assistance to the Appellant, but concluded that the Rule could not have retrospective effect. With some sympathy for the Appellant, the application for permission was dismissed, but the Judge encouraged the Home Office to reconsider their decision, notwithstanding the refusal of permission.
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Unfair use of Appendix FM by Tier 1 Entrepreneur Visa Caseworkers

Unfair use of Appendix FM by Tier 1 Entrepreneur Visa Caseworkers

In an application for permission to appeal from the Court of Appeal, Mr. Justice Henderson found that there is an overriding duty for the Secretary of State to act fairly, but that the threshold for establishing the unlawful exercise of a discretion is a high one and therefore the standard paragraphs which are included on refusal letters referring to reasons why evidential flexibility under paragraph 245AA has not been exercised, are lawful.

This, however, was in a specific case where there were a large number of deficiencies in an application. In many refusal decisions, the Home Office standard paragraph on evidential flexibility is quoted inappropriately, misquoted, or incorrectly applied in cases where it has clearly been copied and pasted onto a refusal, rather than having been given any proper consideration by a caseworker.

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Appendix FM Allows for the Consideration of Specificities of a Case

Appendix FM Allows for the Consideration of Specificities of a Case

The Appellant applied for leave to remain as a Tier 1 Entrepreneur and relied on funds which were held in her husband’s account which he had made available to her. Her husband was a Dependant on the Appellant’s application. The Court concluded that Paragraph 245AA was of no assistance to the Appellant and then went on to consider the public law duty of fairness. Their Lordships found that however detailed and prescriptive a policy might be, a decision maker must always be open to the facts and circumstances of the particular case. As a general rule there is no unfairness in refusing an application under the PBS rules which does not meet the evidential requirements but the general rule can be overcome in the circumstances of the case, for example where the SSHD is responsible for the problem, where the decision is perverse or in defiance of common sense.

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Third Party Funds for a Tier 1 Entrepreneur Visa Good Enough to Ignite Evidential Flexibility Considerations

Third Party Funds for a Tier 1 Entrepreneur Visa Good Enough to Ignite Evidential Flexibility Considerations

The Appellant had applied for leave to remain as a Tier 1 Entrepreneur migrant, relying on funds from a third party. The letter from the third party’s bank did not meet the specified evidence requirements as there was information missing. There were also problems with the evidence submitted to meet the English language requirements. Lord Justice Moore-Bick granted permission to appeal on the basis that the funds were available in every real sense and that the evidential flexibility rules were engaged in relation to any defects in the evidence submitted.

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Flexible Timescale to Submit Documents Still Implies that the Documents had to have been in Existence at the Date of Application

Flexible Timescale to Submit Documents Still Implies that the Documents had to have been in Existence at the Date of Application

This was a decision of Lady Justice Rafferty in the Court of Appeal. The Appellant applied for leave to remain as a Tier 1 (Entrepreneur) migrant and did not include all the specified documents with his application, however, he wrote to the Home Office requesting permission to send further documents before a decision had been made. The Home Office invited him to submit the documents within a period of 7 days. Some of the evidence post-dated the date of the application. The Application was subsequently refused without the additional documents having been considered. Lady Justice Rafferty confirmed in refusing permission to appeal to the Court of Appeal that documents have to be in existence at the date of application. The Home Office letter agreeing to accept documents sent within 7 days did not amount to an agreement to consider the documents or to dis-apply the requirement that documents must be sent with the application.

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Evidential Flexibility is not a Guarantee

Evidential Flexibility is not a Guarantee

This was an application for permission to appeal to the Court of Appeal. The Appellant applied for leave to remain as a Tier 1 (Entrepreneur) and submitted bank statements up to two weeks before the date of the application with a fluctuating level of funds. The Upper Tribunal Judge was not satisfied on the balance of probabilities that the funds were available on the date of application, even though the specified evidence was provided. There was no discussion of the relevant policy guidance and requests for further documents under the genuine entrepreneur test. Lord Justice Richards refused to consider any new evidence and refused permission to appeal.

For full judgement: Click here

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About the Author:

Megha is an Attorney at The Smartmove2UK in the UK Immigration team at the Delhi office. She assists with a range of immigration applications, including corporate clients, high net worth and personal clients. She also advises on Tier 1 (Entrepreneur) applications for high net-worth individuals.