Brexit immigration law update: an introductory guide to Tier 1 visas and their successor visa routes
Tier 1 visas and their successor visa routes are the only categories within which migrants do not need to be "sponsored" by a business holding a sponsor licence. Migrants can submit applications via these routes independently (without sponsorship) in order to allow them to enter and remain in the UK to work and conduct business. They are aimed at "high-value" migrants who have funds available to set up or invest in a business in the UK, graduates with an endorsed business plan and those deemed to have exceptional talent within their field of expertise.
Like many other visa routes, Tier 1 has been subject to a significant overhaul in recent years, with its sub-categories being renamed and revamped and closed to new applicants. A detailed explanation of each of the remaining Tier 1 sub-categories and their successor visa routes are set out below, however, if you would like any more information, please do not hesitate to contact a member of the Immigration team.
Tier 1 (Investor)
This category is for wealthy individuals seeking to make a significant financial investment in the UK. To qualify for this category, applicants will need to be able to show that they have:
- not less than £2 million under their control in a regulated financial institution and disposable in the UK;
- have had the money for two consecutive years or provide detailed documentation of its source; and
- have opened an account with a UK-regulated bank for the purposes of investing not less than £2 million.
The money of the applicant must be held either by themselves, or jointly with their spouse or partner. However, such joint owner must provide a declaration that they give the applicant permission to freely use the funds.
The applicant must be able to provide evidence of the funds (for example, bank statements, portfolio reports, or share and bond documents) and, if held outside of the UK, the bank must provide a letter confirming that the funds can be transferred to the UK.
The Regulated Financial Institution
The funds must be held in a regulated financial institution. In practice, individuals will find that UK retail banks are not as enthusiastic in opening accounts with such high deposits from overseas nationals as they might first think. However, the regulated financial institution need not be a bank, and this requirement could instead be satisfied, for example, by a portfolio of investments managed by a wealth management organisation.
Not all investments are permitted under the Immigration Rules, and selecting the right investment is absolutely key as failure to do so will jeopardise an individuals' long term plans to settle or remain in the UK.
What will amount to a 'qualifying investment' changed, most recently, in March 2019. From this date, in order to amount to a 'qualifying investment', an investment must be share capital or loan capital in an active and trading UK registered company. Investment in UK Government bonds (also known as "Gilts") is now no longer acceptable.
Qualifying investments made in the 12 months prior to the date of the submission of the individual's application can be taken into account, provided the investment are confirmed by a UK regulated financial institution. Otherwise, once the visa is granted, the applicant must invest the full amount of £2 million within 3 months from first entering the UK as a Tier 1 Investor migrant, and this must be maintained for the whole of the remaining leave. There are limited exceptions to this rule, but these will only apply when there are exceptionally compelling reasons for the delay.
Under this route, the individual will not need to show that they have any English language ability because, whilst they are allowed to work in the UK should they wish to do so, they should not need to work. Nor will the individual need to satisfy any maintenance requirement because, if they have the required investments, they will be able to support themselves in the UK without requiring assistance from public funds.
However, even if an individual meets all of the conditions of the Tier 1 Investor route, there may be other reasons for the Home Office refusing their application. For example, the individual must be able to evidence where the funds have come from and, if the Home Office have reasonable doubts as to the source of funds (or that they have been acquired through unlawful conduct) then the application is likely to be refused. Furthermore, the individual themselves will be scrutinised. As part of their application, an individual must submit criminal record check which the Home Office can rely on to refuse any application, and their immigration history will also be taken into account. The Home Office will consider whether the character, conduct or associations of any third party providing the funds are such that approval of the application would not be conducive to the public good. The Home Office, therefore, have considerable flexibility in determining whether to grant applications under this route.
The Successful Applicant
This visa will usually be granted for an initial period of 3 years and 4 months. In order to extend the visa, an investor will need to show that they made the qualifying investment within 3 months as stipulated above, and have maintained the investment. After having spent 5 years in the UK, the applicant will be able to apply to settle in the UK (there are also accelerated routes if the applicant invests £5 million or £10 million).
This category went live in March 2019 and replaced the "Tier 1 (Graduate-Entrepreneur)" visa (which closed to new applicants in July 2019). It is aimed at early-stage, but high potential, entrepreneurs who are looking to start a business in the UK for the first time. The individual may have already begun setting up their business, but it should not yet have commenced trading.
Applicants will not need to invest any funds into their business to be eligible for this category, but they will need to have an "innovative, viable and scalable" business idea which is supported by an endorsing body.
Innovative: the applicant has a genuine, original business plan that meets new or existing market needs and/or creates a competitive advantage.
Viability: the applicant has, or is actively developing, the necessary skills, knowledge, experience and market awareness to successfully run the business.
Scalability: there is evidence of structured planning and of potential for job creation and growth into national markets.
The endorsing body will also need to be satisfied that the individual will spend the majority of their working time in the UK on developing the business venture.
Endorsing bodies are organisations who have been approved by the Home Office to endorse applicants for the Start Up visa – the Home Office has published a list of authorised endorsing bodies which can be found here, which includes organisations such as universities and incubators. Some endorsing bodies specialise in certain sectors and which body is appropriate to an individual's application will depend upon the circumstances - applicants should take time to carefully choose the endorsing body which is appropriate for them and their application.
If your application to be endorsed is approved by the endorsing body, you will be issued with a Start-Up visa endorsement letter which must be submitted as part of your visa application.
To qualify, an applicant must also meet the following requirements:
The applicant must be 18 or older at the time that their application is determined.
- English language skills
The applicant must be able to either, (1) evidence that they are a citizen of a majority English speaking country; (2) pass an English language test; (3) hold a UK bachelor's degree or equivalent that was taught in English; or (4) previously have received permission as a migrant in a qualifying category.
The applicant must be able to provide evidence of at least £ of personal funds, held for a minimum of 90 consecutive days. Alternatively, the endorsing body may confirm that they have awarded sufficient maintenance funds in the endorsement letter.
The Successful Applicant
If successful, visas are granted for two years. Throughout the two-year period, the individual will be required to stay in contact with their endorsing body (with checkpoints at 6 and 12 months), and the endorsing body will need to be satisfied not only that the individual is continuing to work on their business venture, but that they have also demonstrated reasonable progress in relation to either the original or a new business idea. Failure to do so could result in the curtailment of the individual's visa.
This visa will not lead to settlement, as the hope is that an applicant will progress to the Innovator category (below).
This category replaced the "Tier 1 Entrepreneur" visa in March 2019. It is for experienced business people seeking to establish a business in the UK and who have a minimum of £50,000 available to invest (or have invested) in their business.
As with the Start-Up route, all applicants must be endorsed by an endorsing body, who will need to certify that the business is innovative, viable and scalable. Whilst these requirements are similar to those in the Start-Up category, they are slightly more demanding and require the individual to demonstrate that the business has surpassed that of a Start-Up.
Innovative: the applicant has a genuine, original business plan that meets new or existing market needs and/or creates competitive advantage.
Viable: the applicant has the necessary skills, knowledge, experience and market awareness to successfully run the business.
Scalable: there is evidence of structured planning and of potential for job creation and growth into national and international markets.
Similarly to the Start-Up visa, it will not be enough for an individual to simply receive an endorsement and evidence their investment funds. An applicant must also be able to show that they are of the necessary age and have the requisite English language skills and maintenance. The requirements for each of these categories, are the same as the Start-Up visa (as set out above).
Switching from the Start-Up route
If, however, an applicant is switching from the Start-Up route to the Innovator route, some of the requirements above may be waived.
If the individual is applying to continue their same business venture as in their initial application, and they are able to demonstrate significant progress (as judged against their business plan from their previous endorsement), the requirements to (1) have £50,000 to invest, and (2) to be able to demonstrate that the business is innovative, viable and scalable, will be waived.
If an individual has been endorsed by an endorsing body for the purposes of their Start-Up visa, then they will ideally want to be endorsed by that same body for the purposes of their Innovator visa. It is therefore important to plan ahead and ensure that the endorsing body selected for the Start-Up visa is also authorised to endorse applicants for the Innovator visa.
The Successful Applicant
If successful in their application, individuals will be granted a visa for 3 years. As with the Start-Up visa, the individual will need to stay in contact with their endorsing body with checkpoints at 6, 12 and 24 months. The individual will need to satisfy the endorsing body that they are continuing to work on their business venture and have demonstrated reasonable progress in relation to their business idea.
After the 3 year visa has come to an end, the individual will be eligible to apply for settlement. However, in order to be successful in any settlement application, specific criteria will need to be met. As a minimum, the endorsing body will need to be satisfied that the individual has shown significant achievements (as judged against the business plan in their previous endorsement). The individual will also need to demonstrate that the business is registered with Companies House (and that they are listed as a director and/or member), that the business is active and sustainable, and that they have had an active key role in the day-to-day management and development of the business. The individual will then need to identify two additional criteria (from a larger pool) which they can satisfy. For example, this may be that the business has created the equivalent of at least 5 full-time jobs for settled workers, or that the business generated a minimum annual gross revenue of £500,000 in the last full year. Which criteria are appropriate will depend on each individual and their respective business, therefore, if you are looking to settle legal advice should be sought.
Note: Whilst the Entrepreneur visa route has now been closed for new applications, some people will be able to 'switch' into it from another visa for the next few years. If you require specific advice on 'switching' please do not hesitate to contact a member of the immigration team.
This route replaced and expanded upon the "Exceptional Talent" route on 20 February 2020. It is designed for highly-skilled individuals in the fields of science, humanities, engineering, medicine, digital technology or the arts (including film and television, fashion design and architecture) who will "enrich the United Kingdom's knowledge, economy and cultural life".
The route is divided into two types of applicants:
- "Talent" applications, for those who are already leaders in their field; and
- "Promise" applicants who show the potential to become leaders in their field.
Each of these categories have slightly different qualifying criteria and the applicant can specify under which category they are applying. However, it will ultimately be for the assessor, who is considering the application, to determine which category is appropriate to the individual.
Similarly to the Start-Up and Innovator routes, any applicant will require endorsement from an organisation recognised by the Home Office. These are The Royal Society, The Royal Academy of Engineering, The British Academy, Arts Council England, TechNation and UK Research and Innovation (UKRI)
The Home Office has issued detailed guidance as to the level of achievement which an individual must show and each recognised organisation has developed sector-specific criteria (upon which they will assess applicants) in the light of this. In each case, the individual will need a substantial body of work and support from experts in their field. For example, as part of their application, they will not only need to submit their application form, CV and personal statement, but will also likely require up to three reference letters and ten supporting documents. This route is particularly competitive and approximately only 50% of applicants will be successfully endorsed, applicants therefore need to be prepared to invest a considerable amount of time in their application to ensure that it is as strong as possible.
If successfully endorsed by a recognised organisation, the individual must then apply to the Home Office for their visa, and it will be for them to make the final decision as to whether to award a visa under this route.
Applicants under this route will not need to satisfy any other entry requirements, such as the English language test or the minimum salary threshold.
The Successful Applicant
The visa itself will enable an individual to live and work in the UK for up to 5 years and 4 months. It is considered to be the "golden ticket" of all visas as, once approved, an individual is given a highly flexible permission to live and work in the UK. For example, enabling them to be employed or self-employed, to change jobs without informing the Home Office, to travel abroad and return to the UK for research purposes etc.
In most cases, this visa also provides for fast-track settlement for the individual (and their dependants) after only 3 years, and is therefore a very quick route to settlement.
Visas under Tier 1 and successor visa routes are, perhaps unsurprisingly, particularly sought after and, as with most visas, are not inexpensive - it is therefore crucial to get your application right. If you would like any advice and/or support in submitting an application under Tier 1, please do not hesitate to contact a member of the Immigration team.