Upper Tribunal case on availability and intention to invest under Tier 1 Entrepreneur route
The official headnote:
(i) The effect of the amendment of the regime in paragraph 41/SD of Appendix A to the Immigration Rules via HC628, dated 06 September 2013, is that any application for entry clearance or leave made before 01 October 2013 is to be decided in accordance with the Rules in force on 30 September 2013.
(ii) Every applicant for Tier 1 Entrepreneurial status bears the onus of proving satisfaction of all of the material requirements of the Immigration Rules.
(iii) The Rules stipulate that every Tier 1 Entrepreneurial applicant have available £50,000 to invest in the proposed business venture. “Available” in this context denotes that the applicant must be in a position to invest this money in his business consequential upon a positive decision of the Secretary of State. The clear import of the Rules is that the investment must be capable of being made almost immediately thereafter.
(iv) A mere intention on the part of a Tier 1 Entrepreneurial applicant to invest £25,000 at the outset of the business venture, coupled with a further intention to invest the balance of £25,000 at some unspecified future date from some unspecified source, does not satisfy the Rules.
Arguably the Tribunal wrongly conflate availability of funds and intention to invest at paragraph 49 of the determination (reflected in point (iii) of the headnote):
We turn our attention to one discrete issue of law. This relates to the word “available” in the various provisions of the Rules rehearsed above. The language of the Rules, in this respect, is, variously, ” available ….genuinely available … made available ….” The word ” available” is an unpretentious member of the English language. It carries no technical or special meaning in this context. In our judgment, it denotes that in the case of every Tier 1 applicant or partnership the requisite sum, £50,000, must be capable of being provided for the purpose of investment in the proposed business upon the grant of the Tier 1 visa. The Rules clearly contemplate that the grant of such visa will be the impetus for establishing the business and beginning to operate it. The Rules do not address the issue of delay between these two events. We accept that, in the real world, some delay will normally eventuate. However, it is clearly implicit in the Rules that this will be of very short dimensions. Based on this analysis, we consider that £50,000 is “available” only if this sum is capable of being invested in the business within a short period of the grant of a Tier 1 visa. Cases where this cannot be effected are antithetical to the clear thrust and philosophy of the Rules.
The tribunal perhaps leaves itself open to appeal on this point if not others. The rule does not state “immediately available” or similar and the tribunal’s interpretation creates a regrettably imprecise and indeterminate window of time in which the investment must be completed. In how short a period of time must the investment be made? In a notoriously precise set of rules which otherwise specify exactly what must happen and when this creates uncertainty.