The genuine entrepreneur test was first brought into the Immigration Rules in January 2013; first applying only to initial applications to enter the category and then later being applied to extension and settlement applications as well. The test is relatively vague and can be applied inconsistently. This article will consider what the genuine entrepreneur test is, and what options individuals have if their application is refused on the basis that they are not genuine.
The genuine entrepreneur test
The Home Office must be satisfied, on the balance of probabilities, that an Entrepreneur is genuine in stating that they intend to run a business in the UK, or when they say they have been running a business in the UK. This means that the business has not, or will not, just exist on paper, but that it will, or has been, a genuine commercial enterprise. There are various factors that the decision maker will take into account, but in reality it comes down to the documents submitted and the answers given in interview.
The problem for applicants is that while there is guidance on what the Home Office will consider, there is no definitive list of what must have happened for an applicant to be considered genuine. This can leave even the most committed and able businessperson with a refusal decision, because, for example, the Home Office consider that they have not undertaken sufficient market research for the business, despite the rules not stipulating how much is enough. It could also leave a knowledgeable entrepreneur refused because they have not recalled answers to obscure questions in interview.
What can be done in the event of a refusal decision?
The first thing an Applicant should do is to request the interview transcript. This will contain a lot of information and is a necessary document to consider what action should be taken. There are broadly two options for individuals and they are not necessarily mutually exclusive. The first is to seek to challenge the decision, and the second is to submit a fresh application.
Option 1: Challenging a decision
There is no longer a right of appeal for Tier 1 (Entrepreneur) migrants, unless the application was submitted before 2 March 2015. Therefore the initial route of challenge will be Administrative Review (AR)…. READ FULL ARTICLE