Start Up Visa Application

Who can apply for Start-Up Visa Application?

Any person who is above 18 years of age can make Start Up Visa application provided he is able to fulfil the relevant requirements. Start-Up Visa application can be made from overseas or from the UK provided the applicant has leave in an immigration category allowing him to switch to Start-Up visa.

Business Plan for Start Up Visa Application

Start Up Visa application is for people seeking to establish a business in the UK for the first time. Applicants will have an innovative, viable and salable business idea which is supported by an endorsing body. The applicant needs to have an innovative idea for the proposed business and be able to establish the viability of business and it’s growth within set time limits. He would need to set details of his proposed business venture in the backdrop of the current market situation, financial aspect and the benefits drawn from the business itself, which would require extensive market research and business analysis.

Endorsement & Endorsing Body for Start Up Visa Application

All applicants for Start Up Visa entry clearance or leave to remain must have been endorsed in this category by an endorsing body listed on the gov.uk website. The applicant is required to apply to the relevant endorsing body in order to obtain endorsement and that would only be granted when the endorsing body carries out a full analysis of the business plan, its viability and scalability. Once endorsement is granted, the applicant can make application under Start-up visa.

The endorsing body’s job does not end here. They have a duty to review the progress of the business in 6 months, 12 months and 24 months’ time and report to the home office, if it is found that applicant has not made a reasonable progress or is carrying out another business that does not meet the endorsing criteria or the application misses these checkpoints.

Credibility Assessment

Once the Start Up Visa application is submitted, the decision maker (ECO in case of entry clearance applications or the Caseworker in the Home office) needs to be satisfied that all of the following requirements are met:

• The applicant genuinely intends to undertake, and is capable of undertaking, any work or business activity in the UK stated in their application.
• The applicant does not intend to work in the UK in breach of their conditions.
• Any money which the applicant claims to be available is genuinely available as described, and the applicant intends to use it for the purposes described in the application.

The decision maker may also take into account the factors like; the evidence the applicant has submitted and its credibility, the applicant’s previous educational, work and immigration history, declarations made to other government departments regarding the applicant’s previous employment and other activity in the UK and any other relevant information. These factors help in establishing that the applicant’s proposed or existing business is genuine and promising and the home office may therefore check the authenticity of the documents submitted with the application, interview the applicant or even visit the business premises to see the physical and trading existence of the business.

The decision maker may also make request for additional information or interview the applicant to assess his credibility of Start-Up Visa application. It is therefore extremely important to seek professional help and advice in respect of Start-Up visa applications. We have good experience in preparing our clients for the interviews and can therefore help our clients at any stage of their immigration matters.

English Language Requirements for Start Up Visa Application

Ability to communicate in English language is an essential and necessary part of the whole point based system. Start Up Visa applicants may meet this requirement:

• if he is a national of one of the English speaking Countries listed in the immigration rules.
• or if he has completed at least UK Bachelors level qualification or above in one of the English Speaking countries
• or if he has passed an approved English language test at CFER level B2
• or if he has had leave under one of the following immigration categories:
  1. Start up
  2. Innovator
  3. Tier 1 (General)
  4. Tier 1 (Post-Study Work)
  5. Tier 1 (Entrepreneur) under the rules in place before 13 December 2012
  6. Tier 2 (Minister of Religion)
  7. Tier 4 (General), supported by a Confirmation of Acceptance for Studies (CAS) assigned on or after 21 April 2011

Maintenance requirements for Start Up Visa application

In most circumstances the Start Up Visa Applicant will be required to demonstrate he has held £945 in his personal account or a joint account, for 90 days prior to the date of Start-Up Visa application.  This figure will increase for each dependent should they wish to bring family members to the UK. Please see below for more details about the requirements for your dependents.

Validity of Start Up Visa

The Start Up visa is granted for 2 years that cannot be extended for any further period of time. This visa does not leave to settlement but may be taken into account, if the applicant has completed 10 years of legal and continuous residence in the UK.

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Applicants having leave to remain under the following categories may switch to Start Up visa while remaining in the UK:

• Tier 1 Graduate Entrepreneur
• Tier 2
• Tier 4 provided they meet a set criteria
• Prospective Entrepreneur Visitor

Start Up Migrants are allowed to invite their spouses / partners and children under 18 years of age to join them as their dependents. The Start Up Visa applicant dependents will be able to work in the UK. The Applicant must show that his/her dependents can be supported during their stay in the UK.

Since appeal rights have been taken away from most of the immigration categories, the applicants whose Start Up Visa entry clearance application or leave to remain application is refused, they are given right of administrative review to against refusal of Start Up Visa.

This is a procedure where the applicant is given an opportunity to challenge the refusal of Start Up Visa application by providing relevant arguments or documents in some cases.

It is mandatory for the home office to give reasons of refusal along with the notice of decision and to inform the applicant about their rights of administrative review. The reasons of refusal shall disclose all the issues / concerns of the Home office which have been identified by the immigration or Visa officer on the basis of the information / documents provided by the applicant or the information already held on record by the home office.

Time Limit to Make Start Up Visa Administrative Review

The applicants are required to make start up visa administrative review application within 14 calendar days to the Home office. It is really important to meet the deadline as otherwise the Home office may reject the application unless exceptional reasons for the delay are provided.

Grounds of Administrative Review for Start Up Visa

One has to carefully consider and draft the grounds of Administrative Review for Start Up Visa on which he or she may rely in their administrative review applications. This is an opportunity for the applicant to address all the concerns and issues raised in the notice of decision and the reasons of refusal of the immigration application. It would also be useful to refer to the information or the documents already provided with the said application and highlighting any relevant sections and provide a detailed explanation addressing the issues.

Drafting grounds of administrative review for Start Up Visa refusal is a specialized area of immigration work and should therefore be left for the experts to handle it.

Outcome of Start Up Visa administrative review

Once Start Up Visa Administrative review is lodged, a different caseworker considers the grounds of Start Up Visa administrative review and may make one of the following decisions:

1. 1. He may overturn the original decision and issue visa to the applicant.
   2. He may maintain the original decision along with all the reasons of refusal; or
   3. He may maintain the original decision of refusal but may decide to withdraw one or more reasons of refusal; or
   4. He may maintain the decision but with different or additional reasons to those specified in the decision under review.

Effect of Start Up Visa Administration Review

The applicant’s leave to remain remains in place by virtue of paragraph 3C of the Immigration Act 1971, till the decision of the Start Up Visa administrative review provided he had valid leave to remain prior to making the relevant immigration application. He will not be eligible to make a fresh application whilst the decision on the Administrative Review is pending.

Further Options

If the decision maker maintains the decision of Start Up Visa application refusal, the applicant may make a fresh Start Up Visa application within 14 days from the date of refusal of administrative review or may also lodge Judicial Review proceedings if it is considered that both the decision maker of the original application and of the Administrative review application made an error in the consideration of the said applications.

Again, it is extremely important to seek professional help in making decision whether to make a fresh Start Up visa application or to proceed in the Judicial review against Start Up Visa refusal or to choose both, depending on the individual’s circumstances.

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A Judicial Review is a check and review procedure conducted by the Upper Tribunal (Immigration & Asylum Chambers) or the High court on the decisions made by the executive body (i.e. Home Office).

If the Home Office decides to maintain the decision of Start Up Visa application refusal as a result of administrative review application, the applicant may lodge judicial review proceedings against the Start Up Visa refusal. There is a 3 months’ time limit on bringing the Judicial Review proceedings against the refusal of Start Up Visa application.

Pre-Action Protocol for Start Up Visa

Generally, the first step being a Pre-Action protocol letter is issued to the Home Office before initiating Start Up Visa Judicial Review JR process in the Upper Tribunal (Immigration & Asylum Chambers).

It is really important to assess the details of the matter, analyze the merits and proceed most effectively in order to obtain relief. This is an opportunity given by the claimant to the litigation team of the Home office to review the matter in the light of the representations or submissions made in the Pre-action protocol letter. We generally give 14 days of notice to the Home office to respond to our Pre-action Protocol letter.

The most important thing is to identify the issues raised by the Home office and to see whether a fair decision has been made in the light of the information or documents available. Our job is to address those issues effectively and make a good case for the litigation team to review the decision. We have been quite successful in persuading the litigation team of the home office in reconsidering the decision and a number of our clients did not need to go further in the Judicial Review process and were given relied just on the basis of the pre-action protocol letter.

Permission Application (on papers) – Grounds of Judicial Review for Start Up Visa Refusal

If the Home office Litigation Team refuses to overturn the decision we shall then lodge JR review permission application in the Upper Tribunal by preparing grounds of Judicial review for start up visa refusal.

Time to Lodge JR Application – Start Up Refusal

The deadline to lodge Permission application of Judicial Review is 3 months from the date of the refusal of Start Up Visa Application.

Grounds of Judicial Review – Start up Visa

One has to carefully consider and draft the grounds on which he or she may rely in their permission application for Judicial review to the Upper Tribunal against the refusal of Start Up Visa Application. The main point here is to identify an error of law in the notice of refusal of Start Up Visa application. It needs to be assessed whether the visa officer (ECO) has made a fair decision in the light of the relevant law, rules or regulations with reference to the decisions of the superior courts. It requires a wealth of expertise and experience to draft good grounds in such matters enhancing the chances of success.

Once Judicial Review is lodged, the respondent i.e. the Secretary of State for Home Department has 6 weeks to file “Acknowledgment of Service” along with the grounds of defense. The Upper Tribunal taking account of arguments and documents presented by both parties, makes a decision.

The Upper Tribunal may take one of the following actions:

• Grant permission for Judicial Review on all grounds against the refusal of Start Up Visa Application
• Grant permission for Judicial Review on one or more grounds
• Refuse permission for Judicial Review

Whatever stage we come on board, we make sure to work in the best interests of our clients and have successfully represented many of our clients in such matters.

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