TIER 1 ENTREPRENEUR VISA EXTENSION REFUSED 27th Nov 2017 - Need guidance

[marcnath]

Thank you for your valued feedbacks, yes initial application was based on VC funds available however afterwards I had to inject my own funds which came from abroad directly into my Business account and thereafter I made payments for i.e. Franchise fee etc.
The only confusion I had is, I switched from Student to TIER 1 and I believe migrants on PSW were allowed to have their own funding etc but not the students at that time.

I think you are not getting my point. The 50K route was limited to only three sources of funding. In fact, the old guidance said:
Entrepreneurs may not mix their own funds with the funding from the venture capital firm/s, seed funding competitions and/or UK Government Department/s if they are using the provision to invest £50,000. If the entrepreneur wishes to mix such funding he/she will need to invest £200,000 into the UK business.
But you have now mixed your personal funds or are claiming investment by yourself.
What might work in your favour is that this seems to refers to initial application only, not to extension. And that is where I could be wrong. If it applies to extension also (which it should rightfully should) then you should have invested 200K and your 70K investment will be rejected.

I spoke to another chap who is an accountant and have helped his clients in such cases however he said you can not show a director loan because that money was from Business rather personal so therefore Business account do belongs to you but it would not have your name.

I am only stuck with this accounts issue, rest I have gathered all the relevant documents just this accounts are the issue now.

Yes, I agree, this is where it is confusing and you don't seem to be able to answer questions about your own business finance.

Money cannot just appear in your business account without any reason - it has to come as equity, income or loan. You still haven't been able to say what the source of the 70K is shown as in your accounts. I understand where it actually is from - you gave the money to a VC and they transferred it to you account. But how that is accounted in your accounts is not clear to me.

[BK14]

Hi Marcnath,

Thank you, the funds came from a EUROPEAN account directly into my Business account and for the new set of accounts they will be shown as an investment. The bank statements can also show the transactions for purchasing franchise etc so they were used lawfully as per HO rules but indeed I made a mistake here because once the visa was granted the VC firm started playing up and I was stuck.

So, I had no choice other than to go that route and pay them the money so that they can transfer they also charged a percentage for doing this, but as I said I was stuck and have no choice. I understand the guidance which you provided but there is no way I can source and inject £200k.

[marcnath]

I would encourage you to get professional help with your second application.
All the best

[BK14]

Marcnath,

Thank you, I have probably the last question:

If a venture capital firm dissolves without investing and the applicant is left with no choice other than to either find another venture capital to fund or eventually invest his/her own funds how does the policy evolve around this?

I would really appreciate if you or any other senior experienced member can shed some light on this, also if all fails can someone switch to any other category for i.e. on a sponsored license will the 3C clause still continues?

[marcnath]

Marcnath,

Thank you, I have probably the last question:

If a venture capital firm dissolves without investing and the applicant is left with no choice other than to either find another venture capital to fund or eventually invest his/her own funds how does the policy evolve around this?

I would really appreciate if you or any other senior experienced member can shed some light on this, also if all fails can someone switch to any other category for i.e. on a sponsored license will the 3C clause still continues?

Yes, that situation is not covered in the immigration rules. So, it is difficult to say how HO will handle it. Also, there seems to be no clear requirement that the VC who showed funds is the one invested or that it should even be a VC that invests.

As I said in my earlier reply:

What might work in your favour is that this seems to refers to initial application only, not to extension.

I rank the chances of the investment being accepted as quite high if you do the documentation correctly and not give reason for the CW to look in great detail.

Your Section 3C protection ends the minute your fresh application is submitted. So, no, you will not be able to switch category later as you will be applying as an overstayer. You will have to leave and apply from outside.

[BK14]

Hi Marcnath,

Thank you, here is the situation.

I am currently drafting the accounts as share capital taking the share value to over £50k with my Business accounts to support the ground since that is where they can see the funds came in and invested accordingly.

Now, if I do the above what additional paperwork do I require because in my case that venture capital funds never came through and when I looked at the details of that Venture Capital Fund company it is showing as dissolved so technically I can not provide paperwork apart from the paperwork that VC supplied in my initial application.

With regards to 3C, so if I a apply with a fresh application within 14 days period and if this will be granted I will still be an overstayer and 10-year mark will become pointless unless 5 years with TIER 1 category is not completed?

[marcnath]

From my reading of the immigration rules, you don't need to provide any other evidence. There does not seem to be any requirement to provide any VC documentation for your extension.

In your original post, you mentioned the refusal was due to lack of VC documentation - you did not post the exact text, so I am not sure why you referred to VC documentation there.

In the AR rejection that you posted, the refusal was based on investment evidence and not on VC documentation evidence.

Once your fresh application is approved, the overstay period will be ignored for our 10 year LR or 5 year ILR

[BK14]

Marcnath,

Thank you as always for your valued feedback, since I switched from STUDENT to TIER 1 rather from PSW. Anyone at that time who was on PSW who switched to TIER 1 can invest their own funds or from 3rd party source where is if a student is switching to TIER 1 they would have to go through venture capital funding and probably with extension you would need to show a confirmation/letter confirming that they gave the funds.

So, I am actually stuck there because if that is the case I have an issue and if that is 100% not an issue with HO then I am fine and I will easily cross the line since I have corrected the accounts, investment, Business, job creation etc all good just this VC paperwork (LETTER) is an issue now.

[marcnath]

Marcnath,

Thank you as always for your valued feedback, since I switched from STUDENT to TIER 1 rather from PSW. Anyone at that time who was on PSW who switched to TIER 1 can invest their own funds or from 3rd party source where is if a student is switching to TIER 1 they would have to go through venture capital funding and probably with extension you would need to show a confirmation/letter confirming that they gave the funds.

So, I am actually stuck there because if that is the case I have an issue and if that is 100% not an issue with HO then I am fine and I will easily cross the line since I have corrected the accounts, investment, Business, job creation etc all good just this VC paperwork (LETTER) is an issue now.

Yes, I appreciate you have a problem. But there is no point worrying about that because there are no easy solutions.

The only option you have is to hope that, since the rules are unclear for your specific situation, you will get the benefit of the uncertainty.

Can you post the actual words from the first rejection where it referred to VC documentation ?

[BK14]

Marcnath,

I am going to type this here now, and this will be available to read after 10 minutes.

[BK14]

Marcnath,

When you initially applied for leave as Tier 1 Entrepreneur you applied with funds 50,000 from a Venture Capital Firm.

Paragraph 46-SD(a)iv of Appendix A of the Immigration Rules states that:

(iv) If the applicant is claiming points for investing 50,000 from a Venture Capital Firm, Seed Funding Competition or UK Government Department, and has now been awarded points in a previous application for having those funds available, he must provide a letter as specified in paragraph 41-SD(c)iii (Except that the letter does not need to have been produced within three moths immediately before the date of application) as evidence of source of those funds, and additionally if the source of the funding was a Venture Capital Firm, he must also provide the evidence as specified in 41-SD(d)iii.

You did not supply evidence from the Venture Capital firm with your application for extension of leave as TIER 1 Entrepreneur.

[marcnath]

Marcnath,

When you initially applied for leave as Tier 1 Entrepreneur you applied with funds 50,000 from a Venture Capital Firm.

Paragraph 46-SD(a)iv of Appendix A of the Immigration Rules states that:

(iv) If the applicant is claiming points for investing 50,000 from a Venture Capital Firm, Seed Funding Competition or UK Government Department, and has now been awarded points in a previous application for having those funds available, he must provide a letter as specified in paragraph 41-SD(c)iii (Except that the letter does not need to have been produced within three moths immediately before the date of application) as evidence of source of those funds, and additionally if the source of the funding was a Venture Capital Firm, he must also provide the evidence as specified in 41-SD(d)iii.

You did not supply evidence from the Venture Capital firm with your application for extension of leave as TIER 1 Entrepreneur.

Can you confirm the highlighted word ? It was "not" in the immigration rules and that makes a big difference.

[BK14]

Typing error it is NOT.

[marcnath]

Typing error it is NOT.

OK. So, my interpretation of this is that you don't need to provide the documentation.

Unfortunately, you did not argue it correctly in the AR so it was not tested properly. But the response to your AR did not raise this issue again, so hopefully my interpretation is correct.

Go ahead and submit the application without any VC documents and if it is rejected with the same reason as the original, then do a proper AR to show why there was no need to submit the VC documents.

This really becomes quite detailed legal interpretation, so at some point in time you will have to conduct a professional lawyer.

[BK14]

Marcnath,

I have hired a solicitor now, though his views were slightly different with regards to VC. He states that you should provide the old paperwork but we'll mention that the funding never came through therefore the applicant was left with no option other than to source his own funds.

[marcnath]

Marcnath,

I have hired a solicitor now, though his views were slightly different with regards to VC. He states that you should provide the old paperwork but we'll mention that the funding never came through therefore the applicant was left with no option other than to source his own funds.

Does he say what the basis of that advice is ? I'd be interested in knowing which immigration rules clause does he think requires those documents.

The immigration rules have been updated, so the clause numbers have changed.

But, as per the updated one, I think the clauses in Appendix A may be applicable to VC investment are:
1) 45(g) (g) if the applicant is claiming points for investment from a venture capital firm, they must also provide an original, .....
2) 45 (h) (h) if the applicant is claiming points for investing £50,000 from a seed funding competition, a UK or Devolved Government Department, or a venture capital firm, and has not been awarded points for....

But, you are not claiming points for investment from a VC - so, in my opinion, these clauses are not relevant to your application.

Table 5 of Appendix A only states:

The applicant has invested or has caused investment to be made by one or more third parties, totalling at least £200,000 (or £50,000 if they were awarded points for £50,000 funding or investment in their last grant of leave) in cash directly into one or more UK businesses.

as the requirement to get you 20 points for the investment attribute.

So, if I read that strictly, once you have been awarded points for 50K funding, you can invest 50K in cash and get the points.

I think, when they wrote the rules, they missed taking care of this case. There is no definite link I can see which says that if you had available funds from one source (VC, Seed funding, third party, etc.) the investment should also be from the same source. And I am sure HO has approved many cases where the money invested is not from the same source as the money shown at initial application.

As I said, I am not a lawyer, so I can't be sure my argument is legally correct. But share this with your solicitor and see what he says.

At the end of the day, it is your application. So, you have the tough job of making the decision of what goes into your application and what does not.

What I am surprised with your solicitor's approach is that there seems to be no legal argument in favour of changing the investment source. You would be asking HO to exercise discretion but there is no clear basis on which that discretion should be exercised. Basically, this approach would be saying - "I know I made a mistake, but I had no other options, so please forgive me".

[BK14]

Marcnath,

Thank you for your feedback, I will speak to the solicitor again sharing your thoughts so atleast I have a clear idea.

Last question, I am showing investment as share capital so is this OK or do I still need to go via Director Loan? but the money I invested came directly into my Business account not personal.

[marcnath]

Marcnath,

Thank you for your feedback, I will speak to the solicitor again sharing your thoughts so atleast I have a clear idea.

Last question, I am showing investment as share capital so is this OK or do I still need to go via Director Loan? but the money I invested came directly into my Business account not personal.

It is better to show as share capital as the evidence requirements are much lesser.

[BK14]

Marcnath,

Thank you, you have been very helpful and kind. God bless and I should be back hopefully with in 2 months with a good news.

[BK14]

Marcnath / Zimba,

Someone might have previously answered to this question but I need to double check, my venture capital firm was called XYZ CAPITAL and I just did a bit of digging and found that a number of applicants on this forum had their Visa's refused/ Deception imposed because of this Firm which was BOGUS.

Now, I am due to submit a fresh extension application after refusal of my previous extension and AR (I never provided HO the paperwork for venture capital because I read the clause differently 'Funds available' so HO has no record though they might have the record of this VC when I applied for TIER 1 from student back in 2014.

My question is: Can I source another credible VC and request them to provide paperwork of investment or this will not make any difference? I do understand if a VC fails to provide funding what would the applicant do in that instance? he can not invest his own funds since he was a student so that part I understand but can one source another VC and submit paperwork?

Investment has been shown as share capital, for now, rest everything is in order, Business, Job creating, HMRC paperwork, tax, vat etc.

Please advise.

[CR001]

Someone might have previously answered to this question but I need to double check, my venture capital firm was called XYZ CAPITAL and I just did a bit of digging and found that a number of applicants on this forum had their Visa's refused/ Deception imposed because of this Firm which was BOGUS.

Kindly DO NOT name companies on the forum, whether they are bogus or not.

[marcnath]

Irrespective of the venture capital firm itself, your description of your situation raised red flags and as I mentioned, I believed it was fraudulent. Deception is another way of saying the same.

The fact that you paid the VC to invest that money back into your business is the classic definition of deception - so nothing you do will change that. You may not have done it knowingly, you may have been misled by your solicitor - but that does not matter. It was your application and you are responsible for that.

Now it is a question of whether HO will discover that during the assessment of your application. If they do, it is almost certain that your application will be rejected and you would be marked for deception.

There is no way to know how detailed they will check, but given that others have been caught out on this, it looks highly probable.

Getting a credible VC (even if you can) would be extremely difficult in the time frame that you have. I am an investor myself and so I know. If you can find a VC that can make a decision in 14 days and invest in you, they are unlikely to be genuine.

You basically have two options:
1. Continue with your application as it is. Hope for the best. I'll be frank and say that it is challenging on the 50K route. If you had invested 200K, then the VC issue may be easier to overlook. You run the risk of being marked as deceptive, which will be negative for any future attempts to stay or enter UK.
2. Give up the extension application, leave the country and apply for a T1E or other visa again. Not easy as you need 200K, a job offer or something else.

To emphasise, I am not in a position to advice you and I am not doing so. I am just sharing some personal opinions.
You are working with a solicitor, take your advice from them - that is their job to advice you.

[marcnath]

Someone might have previously answered to this question but I need to double check, my venture capital firm was called XYZ CAPITAL and I just did a bit of digging and found that a number of applicants on this forum had their Visa's refused/ Deception imposed because of this Firm which was BOGUS.

Kindly DO NOT name companies on the forum, whether they are bogus or not.

Having said that, the company that was used has been named in a number of other posts. Searching for that threw up a number of quite old posts.

[CR001]

Someone might have previously answered to this question but I need to double check, my venture capital firm was called XYZ CAPITAL and I just did a bit of digging and found that a number of applicants on this forum had their Visa's refused/ Deception imposed because of this Firm which was BOGUS.

Kindly DO NOT name companies on the forum, whether they are bogus or not.

Having said that, the company that was used has been named in a number of other posts. Searching for that threw up a number of quite old posts.

Yes, unfortunately 'back in the day', they were not removed and neither were emails. Now when they pop up when someone tags onto an old post, I remove the details. The historical posts gives a good indication of the level of abuse of the T1E route, given the number of refusals for deception using the 'firm'.

[BK14]

Marcnath,

Thank you.