[2024] UKUT 00281 (IAC)

Paragraph 245DD states:

“To qualify or leave to remain as a Tier 1 (Entrepreneur) Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:

(a)

The applicant must not fall for refusal under the general grounds for refusal, except that paragraph 322(10) shall not apply, and must not be an illegal entrant.

(b)

The applicant must have a minimum of 75 points under paragraphs 35 to 53 of Appendix A…….

(e)

The applicant who is applying for leave to remain must have, or have last been granted, entry clearance, leave to enter or remain:

(i)

a Tier 1 (Entrepreneur) Migrant,

…

(k)

Where the applicant has, or was last granted, leave as a Tier 1 (Entrepreneur) Migrant and is being assessed under Table 5 of Appendix A, the Secretary of State must be satisfied that:

(i)

the applicant has established, taken over or become a director of one or more genuine businesses in the UK, and has genuinely operated that business or businesses while he had leave as a Tier 1 (Entrepreneur) Migrant; and

(ii)

the applicant has genuinely invested the money referred to in Table 5 of Appendix A into one or more genuine businesses in the UK to be spent for the purpose of that business or businesses; and

(iii)

the applicant genuinely intends to continue operating one or more businesses in the UK; and

(iv)

the applicant does not intend to take employment in the United Kingdom other than under the terms of paragraph 245DE.

(l)

In making the assessment in (k), the Secretary of State will assess the balance of probabilities. The Secretary of State may take into account the following factors:

(i)

the evidence the applicant has submitted;

(ii)

the viability and credibility of the source of the money referred to in Table 5 of Appendix A;

(iii)

the credibility of the financial accounts of the business or businesses;

(iv)

the credibility of the applicant’s business activity in the UK, including when he had leave as a Tier 1 (Entrepreneur) Migrant;

(v)

the credibility of the job creation for which the applicant is claiming points in Table 5 of Appendix A;

(vi)

if the nature of the business requires mandatory accreditation, registration and/or insurance, whether that accreditation, registration and/or insurance has been obtained; and

(vii)

any other relevant information.

(m)

The Secretary of State reserves the right to request additional information and evidence to support the assessment in (k), and to refuse the application if the information or evidence is not provided. Any requested documents must be received by the Secretary of State at the address specified in the request within 28 calendar days of the date of the request.

(n)

If the Secretary of State is not satisfied with the genuineness of the application in relation to a points-scoring requirement in Appendix A, those points will not be awarded.

(o)

The Secretary of State may decide not to carry out the assessment in (k) if the application already falls for refusal on other grounds but reserves the right to carry out this assessment in any reconsideration of the decision.”

Appendix A includes the following:

“35.

An applicant applying for entry clearance, leave to remain or indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant must score 75 points for attributes.

…

37.

Available points are shown in Table 5 for extension applications for applicants who have entry clearance, leave to enter or leave to remain as a Tier 1 (Entrepreneur) Migrant, or have had such leave in the 12 months immediately before the date of application.

…

Table 5: Extension applications as referred to in paragraph 37

…

Row Investment, business activity and job creation Points

…

3

Within the three months before the date of the 15

Application, the applicant was:

(a)

registered with HM Revenue & Customs as self-employed, or

(b)

registered with Companies House as a director of a UK company or member of a UK partnership.

48.

The applicant must provide the following specified documents to show that they have established a new UK business or joined or taken over an existing business, and that they are engaged in business in the UK when they make their application:

…

(b)

if the applicant is a director of a UK company or member of a UK partnership, they must provide:

…

(iii)

a business bank statement from a UK account which shows business transactions, or a letter from the UK bank in question, on its headed paper, confirming that the company or partnership has a bank account, that the applicant is a signatory of that account, and that the company or partnership uses that account for the purposes of their business.”