Immigration Barristers' Blog

On 15 March 2012, a written ministerial statement was laid in Parliament outlining a number of changes to the Immigration Rules.

From 6 April 2012, the Tier 1 (Post-Study Work) category will close to new applicants.  However, it will now be easier for existing Tier 1 (Post-Study Work) migrants to extend their stay in the United Kingdom by switching into the Tier 1 (Entrepreneur) category.

Whereas most individuals who apply to enter the UK or switch from another category into the Tier 1 (Entrepreneur) category are, with certain limited exceptions, required to demonstrate that they have access to at least £200,000, the funds requirement will be substantially reduced for post-study workers. 

From 6 April 2012, any individual who is currently in the UK with leave to remain as a Tier 1 (Post-Study Work) migrant and who wishes to switch into the Tier 1 (Entrepreneur) category will now only need to demonstrate that they have access to at least £50,000. 

Post-study workers will be able to rely on money that is held in their own account or in someone else’s account, provided that the third-party confirms that the funds are available to the post-study worker for investment in a UK business.  In either case, the money will need to be held in a regulated financial institution such as a bank or building society and be capable of being spent in the UK

Two post-study workers will be able to apply together as an ‘entrepreneurial team’, provided that they both have equal access to the investment funds.

However, applicants should be aware of one potential restriction.  Post-study workers switching into the Tier 1 (Entrepreneur) category will need to have already registered as self-employed or as the director of a business, and be engaged in business activity, other than in the work necessary to administer their business, in an occupation at National Qualifications Framework level 4, at the date of their application for an extension of stay.

In a recent statement of intent, the government has announced more details of its new Tier 1 (Graduate Entrepreneur) scheme.  Open from 6 April 2012, the scheme will be available to those who have been identified by UK universities as having developed world class innovative ideas or entrepreneurial skills, but who are not yet in a position to meet the full requirements of the Tier 1 (Entrepreneur) route.

The scheme will be open to all HEIs which are Highly Trusted Sponsors for the purposes of Tier 4 of the points-based system, and A Rated for the purposes of Tier 2 if such a licence is held.

The HEI must:

• have an established process for identifying, nurturing and developing entrepreneurs amongst their undergraduate and post graduate population;
• maintain contact with migrants and assess their progress at regular intervals (at least quarterly); and
• inform the UK Border Agency if migrants are no longer participating in the scheme.

Applicants will need to be in the UK and sponsored by the HEI from which they have graduated. The government will give HEIs the freedom to decide how to best identify the strongest candidates, but there will be an overall limit of 1,000 places for the first year. This limit will be divided equally between participating HEIs.

Successful applicants will be granted leave for 12 months initially, which may be extended for a further 12 months, providing the sponsoring HEI is satisfied with the progress they have made. They will be expected to spend the majority of their time developing their businesses, but may also undertake other work for up to 20 hours a week to support themselves. They will be able to sponsor dependants provided they meet the Tier 1 maintenance requirements.

Time in this category will not count towards the qualifying period for settlement in the UK. At the end of the second year in this category, migrants must either switch into Tier 1 (Entrepreneur) or leave the UK.  The government intends to lower the funds required to switch into the main Tier 1 (Entrepreneur) route for this group, from £200,000 to £50,000.  It also intends to apply this lower threshold to migrants who are currently in Tier 1 (Post-Study Work) and have established their own business in the UK.

The UK Border Agency will not second-guess HEIs’ choice of graduate entrepreneurs they wish to sponsor (beyond the applying the normal General Grounds for Refusal for those with an adverse immigration or security history, and the need to satisfy Tier 1 English language and maintenance requirements). The government also recognises that an idea may not be developed successfully. In that case the migrant will be expected to leave the UK and the HEI will not be penalised in any way. If on the other hand the HEI does not comply with its responsibilities under this route, this will count against the HEI’s Highly Trusted Sponsor status. The UK Border Agency will announce in due course a process and deadline by which HEIs who wish to participate in the scheme should register. The allocation of 1000 places will then be distributed.

Further details of the Tier 1 (Graduate Entrepreneur) scheme will be available once the changes to the relevant Immigration Rules have been laid on 15 March 2012.