LS Legal Solicitors (RUSSIAN)

Fairness for Business Expansion of Entrepreneur

Thursday 9th November 2017

The Home Office guidance sheds limited light on the genuine entrepreneur test and how one can satisfy this requirement at the interview stage of the process. So the case of R (on the application of Anjum) v Entry Clearance Officer, Islamabad (entrepreneur - business expansion - fairness generally) [2017] UKUT 00406 (IAC) is welcomed as it discusses not on the Tier 1 (Entrepreneur) categories, but also the genuine entrepreneur test.

The only case of Anjum relates to a Judicial Review of a decision to refuse an Entrepreneur Migrant Entry Clearance to the UK. This was an initial application to enter the category which was refused on the basis that the Applicant was not a genuine entrepreneur.

As part of the application process, the Applicant was interviewed. The Applicant claimed that the interview record was 'manifestly incomplete, unclear or unintelligible' and that basic fairness would have required the interviewer to follow up or seek clarification on answers which had been given, which did not happen.

Incomplete and/or inaccurate interview notes are commonplace, many of which fail to make literal and rational sense due to factors such as the interviewer failing to clarify answers provided by the Entrepreneur and communication and translation errors. Such incoherent notes are then solely used in turn for the refusal decisions with applicant regularly being criticised for failing to give sufficient information in answer to a question when in fact, the interview notes evidence that the interviewing officer did not address the answer further, but rather responded by asking a separate question.

There are often circumstances where the interviewing officers are clearly lacking in basic business knowledge and so their questions are generic and often without relevance and thus, do not make sense or their interpretation of answers is illogical. In the case of Anjum, this happens where the interviewer clearly does not understand the difference between buying a business (not a permitted use of investment funds) and taking over a business and investing into an existing business (permitted). The confusion of the interviewer is attributed to the Applicant and the specific reasons that the case is refused are never actually put to the Applicant.

The Upper Tribunal in Anjum found that this approach is procedurally unfair, in particular, the failure of the interviewing officer to probe for further answers, or to link the questioning to the business plan which was submitted with the application.

What should an Entrepreneur do to prevent refusal following an interview?

• Ensure that the application is well supported with relevant documentary evidence, which helps to establish the business plans and the reasons why you are genuine in your intention to start/join a business in the UK. This should be supported by evidence of industry experience outside of your business venture.
• Make sure that you have a good knowledge of your business plan. You will lack credibility if you have a comprehensive business plan but cannot talk about your business without the aid of the plan itself.
• Once you have answered a question, always ask the interviewer if they wish for you to elaborate further or need any clarification of your answer.
• Following any interview, make an immediate request for the interview and check its accuracy. Should any amendments be needed, raise them with the Home Office as soon as possible.
• Consult with a solicitor who can advise on the documents and procedure as this may save you costs and time in the long run.

In light of the decision, we hope to see the Home Office update their interviewing policy with further guidance and give additional training to those both interviewing entrepreneurs as well as those making decisions on entrepreneur applications. Moreover, it may also give individuals who have already undergone their interviews a stronger basis for challenging decisions.

At LS Legal Solicitors, we are proud to have a 100% success rate for Entrepreneur Visas, including initial and extension applications. Should you require any advice or assistance whether pre or post application, then please do not hesitate to contact us by e-mail info@LSLegaLUK.com or by phone +447535959450 and it would be our pleasure to assist you.