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Ambiguous changes to entrepreneur visas show why the Immigration Rules need simplifying

Ambiguous changes to entrepreneur visas show why the Immigration Rules need simplifying

As regular readers of this blog will be aware, the Home Office’s latest statement of changes to the Immigration Rules comes into force tomorrow (Friday 6 July 2018).

Nath has summarised the various changes being introduced in a previous post. Although a relatively small part of a fairly lengthy statement of changes, the amendments being made to the Tier 1 (Entrepreneur) category caught my eye.

Those seeking entry to the UK to establish their own business, or to invest in and join a business already established here, need to get a Tier 1 (Entrepreneur) visa. They need a credible and viable business plan and either £200,000 or £50,000 to invest in the business, depending on the source of the funds.

The statement of changes makes two amendments to this route. As explained by the explanatory notes, these are to:

  1. “…restore a provision for accountants to confirm that investment has been made on an applicant’s behalf”, and
  2. “make clear where letters from legal representatives confirming signatures are required.”

The first change is fairly straightforward. Often, in order to meet the investment requirement, an applicant will rely on “third party” funding from a relative, business partner, or investment company. When applying for an extension in the entrepreneur category, an applicant relying on third party money must ensure that their business accounts confirm that the investment was made as a result of their business activity in the UK. Alternatively, the accounts must be accompanied by a letter from the Department for International Trade to the same effect.

Authenticating third party funding

The second change is a little harder to follow. The documentary requirements for entrepreneur applications were completely overhauled in January 2018. In among the welcome reformatting and general simplification, a new requirement was added.

Before January 2018, an applicant relying on third party support only needed to get the third party’s written declaration that they would actually provide the funding authenticated by a local lawyer in the country where the funds are held. This was fairly easy to comply with. The third party would sign the declaration in front of the lawyer, who would then send a letter confirming that the signature on the declaration is genuine.

Now, unless the third party transfers the funds to the applicant prior to the date of application, the local lawyer also has to authenticate the signature on the letter from the bank holding the investment funds. How they are expected to do this, I do not know.

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If a client approached me to request a letter to be used as part of an overseas visa application, confirming the authenticity of a signature on a letter from a UK bank, I would only be comfortable if the person issuing the letter on behalf of the UK bank signed it in front of me. How else could I confirm the signature is genuine? But how many banks do you know that are willing to send staff to a customer’s lawyer’s office to sign a letter for an overseas visa application?

Seeing a reference to this requirement in the explanatory notes, I was hoping that the new changes would get rid of this unworkable requirement. Perhaps, I thought, it was never intended to require applicants to authenticate the letter required from the bank and, having realised the difficulties the new requirement is likely to cause, this mistake was now being cleared up in the statement of changes.

No such luck. The local lawyer still needs to confirm the authenticity of the letter from the bank, as well as any other letters or declarations being provided.

“Clear”, Immigration Rules style

The provision itself is Appendix A, paragraph 41(a)(vii). As amended, it requires that:

all letters and declarations in (ii)-(vi) and (viii) (where required) contain the genuine signatures of the required signatories. The letter(s) must clearly show the registration or authority of the legal representative to practise legally in the country where the third party or the money is.

For a provision designed to provide clarification, it needs a fair bit of unpicking. Translated, this seems to mean:

The letter from a local lawyer which is required when an applicant will be relying on third party funding to meet the £200,000 or £50,000 investment requirement must confirm the authenticity not just of the third party funding declaration and the letter from their bank confirming the amount of money involved. It must also verify any other letters or declarations required for the application. These might include the letter required from a venture capital firm providing funding to the business and the letter required from that fund’s accountant.

At least I think this is what it means. The reference to “all letters and declarations in (ii)-(vi) and (viii)” is clumsy drafting. Two out of the six provisions of paragraph 41(a) cited do not actually relate to a letter or declaration at all (subparagraphs (iii) and (iv)). It is not clear whether the documents required by these provisions need to be authenticated by a local lawyer. I presume not — but if this is the case why include these provisions in the amendment?

It does not bode well that this is what the Home Office seems to think the phrase “make clear” means. Simplification of the rules cannot come soon enough.

With thanks to Nick Nason for comments on an earlier draft of this blog post.

 

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