Tier 1 Entrepreneur Visa Extension Judicial Review Refused Twice, I need an urgent advice for Appeal Court!

[Chuks2222]

Dear All,

I have an urgent need for your help with my Tier 1 entrepreneur visa extension issues.

The summary of case is as follows:

I applied twice (on 01/12/2016 & 10/05/2017) for Tier 1 Entrepreneur Visa extension and my application were refused (on 23/03/2017 & 12/06/2017 respectively) by Home Office on both occasions.
Reason for refusal:One of the evidence provided for the £50,000 investment fund in my application did not meet the requirements of Appendix A, Subparagraph 46-SD(a)(iii).

My subsequent application (on 29/03/2017 & 26/06/2017) for Administrative Review were also refused (on 26/03/2017 & 20/07/2017 respectively) by Home Office.

Pre-Action Protocol Letter was sent to Home Office on 31/07/2017 and Home Office maintained their refusal via letter dated 04/08/2017.

Judicial review (paper) application was made to the Upper Tribunal on 14/09/2017 but the permission was refused by the Upper Tribunal Court on 14/11/2017 with a right for reconsideration via oral application.

Renewed judicial review (Oral) application was made on 23/11/2017, skeleton argument filed and served to all parties 19/03/2018. Judicial Review hearing date was 29/03/2018. The permission for the Judicial review was again refused by the Upper Tribunal (refusal decision date 04/04/2018).

All the effort to get Home Official to rescind their decision via all the above processes (except for the latest judicial review) were based principally on the appeal to Secretary of State for Home Department (SSHD) to exercise discretion. This was because one of evidence that I submitted to Home Office in my extension application for the £50,000 investment fund was a set of my Business Current Account (receiving account, A/C No.: 64xxxxxxx) and my business savings account (investment fund source account, A/C No.: 64xxxxxxx). Home Office, insisted that the transfer of this investment fund must be from my personal account to my business account.

However, the above reason for refusing my visa extension application is far from the truth going by what I recently found out on receiving the GCID/SAR (subject access request) document from Home Office. Which showed clearly that I score 95 point out of 95 points required by law for the grant of my visa extension application.

Moreso, from point of law the version of Appendix A, Subparagraph 46-SD(a)(iii) relied upon by Home Office to refuse my visa extension application was November, 19th, 2015 whereas my investment was made in 2013 in accordance with UK immigration rule at the time of investment. Hence, Home Office retrospectively applied November, 19th, 2015 version of Appendix A, Subparagraph 46-SD(a)(iii) in all their refusal decision. In fact currently, the version Appendix A, Subparagraph 46-SD(a)(iii) relied upon by Home Office to refuse my visa extension application has been deleted in UK Immigration Rule. Instead, there is currently, a transitional arrangement that excludes me from the specific section of Appendix A, Subparagraph 46-SD(a)(iii) relied upon by Home Office to refuse my visa extension application.

As a result of the last two paragraphs above and other breach of human right and unfairness issues exhibited by the Upper Tribunal Judge which are contained in my grounds for appeal write up, I am seeking for an advise on weather to pursue this case at the Court of Appeal.

Please, i am in need of a very good lawyer/barrister/solicitor for an urgent advice!

[marcnath]

I am not a lawyer/barrister/solicitor but in my personal opinion, you have a tough case.

Your argument on 46-SD(a)(iii) is strong but that only applies to having to submit the evidence of business accounts showing the transfer from your personal account. I tend to agree that the HO was incorrect or at least unfair to refuse you on that basis.

However, the requirement (even in 2013) was:

The applicant has invested, or had invested on his behalf, not less than £200,000 (or £50,000 if, in his last grant of leave, he was awarded points for funds of £50,000 as set out in Table 4 above in cash directly into one or more businesses in the UK.

I cannot see how you can justify moving funds from one account to the other of the same business as investing money INTO the business. Incidentally, how did the accountant show that transfer of money from one account to the other as investment ?

So while I think you have a chance of getting a court to set aside the decision, it will go back to HO who probably will then use the correct reason for refusing.

The SAR is irrelevant. It could have just been an interim note based on a first pass. The only thing that matters is the final decision as conveyed to you.

[zimba]

It seems you did not seek proper advice here when you were refused the first time (you put your confidence in a solicitor ??). Then you went ahead the second time with the same documents expecting different results. You could have fixed this by converting the director's loan to share capital instead in your second application to avoid this headache. Also the rules applicable at the time of application will be considered not any new changes.

[Chuks2222]

I am not a lawyer/barrister/solicitor but in my personal opinion, you have a tough case.

Your argument on 46-SD(a)(iii) is strong but that only applies to having to submit the evidence of business accounts showing the transfer from your personal account. I tend to agree that the HO was incorrect or at least unfair to refuse you on that basis.

However, the requirement (even in 2013) was:

The applicant has invested, or had invested on his behalf, not less than £200,000 (or £50,000 if, in his last grant of leave, he was awarded points for funds of £50,000 as set out in Table 4 above in cash directly into one or more businesses in the UK.

I cannot see how you can justify moving funds from one account to the other of the same business as investing money INTO the business. Incidentally, how did the accountant show that transfer of money from one account to the other as investment ?

So while I think you have a chance of getting a court to set aside the decision, it will go back to HO who probably will then use the correct reason for refusing.

The SAR is irrelevant. It could have just been an interim note based on a first pass. The only thing that matters is the final decision as conveyed to you.

Hello Marcnath, a million thanks for your time in explaining thing out for me.
For emphasis, please see bellow the 3 versions of UK Immigration rule, Appendix A, subparagraph 46-SD(a)(iii):
1. The (2013) version at the time of investment:
“If the applicant has made the investment in the form of a director’s loan, it must be shown both in the relevant set of financial accounts provided, and the applicant must also provide a legal agreement, between the applicant (in the name that appears on his application) and the company showing:
(1) the term of the loan
(2) any interest that is payable
(3) the period of the loan, and
(4) thattheloanisunsecuredandsubordinatedinthefavourofthird-partycreditors”

2. The November 19th, 2015 relied upon my Home Office to refuse by visa extension application:
“If the applicant has made the investment in the form of a director’s loan, it must be shown both in the relevant set of financial accounts provided, and through readily identifiable transactions in the applicant’s business bank statements, which must clearly show the transfer of this money from the applicant to his business.The applicant must also provide a legal agreement, between the applicant (in the name that appears on his application) and the company showing:
(1) the term of the loan
(2) any interest that is payable
(3) the period of the loan, and
(4) thattheloanisunsecuredandsubordinatedinthefavourofthird-partycreditors”

3.The current UK Immigration Rule, Appendix A, Subparagraph 45 (d)(i) – (iii) is as follows:
“Ifthe applicant has made the investment in the form ofa director’s loan:
(i)it must be shown both in the relevant set offinancial accounts provided.
(ii)where the investment was made after 19 November, 2015, the investment must be shown through readily identifiable transactions in the applicant’s business bank statements, which must clearly show the transfer of this money from the applicant to their business, and
(iii)The applicant must provide a legal agreement, between the applicant (in the name that appears on their application) and the business showing:
(1) the term of the loan
(2) any interest that is payable
(3) the period of the loan, and
(4) that the loan is unsecured and subordinated to other creditor’s loan to the business”

The specific part of Appendix A, Subparagraph 46-SD(a)(iii) quoted at 8 times in all Home Office's refusal letters is: "and through readily identifiable transactions in the applicant’s business bank statements, which must clearly show the transfer of this money from the applicant to his business".
However, from the current version - 4(iii) above, Appendix A, subparagraph 45 (d) (ii) in particular of the UK Immigration Rule effective from 15th January 2018 bears no material relevance to my own case in any way. My investment was made well before 19th November, 2015 and not after.

In this Tier 1 Entrepreneur Visa route there is always a transitional arrangement put in place whenever in the immigration rule is made to protect whatever that was happening before the immigration rule change take effect. However, it appears that Home Office made the November 19th, 2015 rule change without any transitional arrangement. Hence, the November 19th, 2015 rule change essentially took a retrospective effect.
You will notice that the wording of the last version of the immigration rule(Appendix A, subparagraph 45d(i)-(iii) incorporated the transitional arrangement when the did has already been done in my extension application.

Futthermore, from GCID/SAR (subject access request) document it was shocking to see the recorded discussion between the caseworker and the HEO on how to refuse my application. There was third person who name was redacted who initially suggested that my application should be refused on balance of probability(BOP) even after scoring me 95(total points claimed)/95(total points awarded) by the caseworker.
Finally the HEO instructed the case worker not use balance of probability as the reason for refusal. Instead that point for investment should be removed. Even after the second assessment, the caseworker still recorded that the evidence submitted for the investment is acceptable in accordance with UK immigration rule. The question is why will someone record that the evidence provided for the investment is acceptable in the GCID/SAR and then write in the refusal letter that the evidence is not acceptable?

[Chuks2222]

It seems you did not seek proper advice here when you were refused the first time (you put your confidence in a solicitor ??). Then you went ahead the second time with the same documents expecting different results. You could have fixed this by converting the director's loan to share capital instead in your second application to avoid this headache. Also the rules applicable at the time of application will be considered not any new changes.

Hello Zimba88, many thanks for your response.
yes, you are right, i don't think my solicitors did a good job for me.
In my second application, my solicitor advised me to obtain a letter from my banker stating that:
1. I am the account holder of the £50,000 source account and the sole signatory to the source account.
2. I authorised the transfer of the £50,000 from the business savings/source account to the business current/receiving account.

This letter from bank together with all the documents used in the 1st application were what i issued for the 2nd application.

[marcnath]

But did you actually make an investment of cash into the business ?

From your description, you did not. You just moved funds from one business account to another. Maybe that money was from Sales - is that the case ?

How did you manage to show a transfer of funds between accounts as investment in the company accounts ?

[Chuks2222]

But did you actually make an investment of cash into the business ?

From your description, you did not. You just moved funds from one business account to another. Maybe that money was from Sales - is that the case ?

How did you manage to show a transfer of funds between accounts as investment in the company accounts ?

Hello Marcnath, many thanks for your comment. Yes, i made the investment. The £50,000 was my money. The saving account were i saved the £50,000 (over a period of about 9 months) was opened as business savings account in error by my business account manager. The build up of this £50,000 is all my savings and not that of the business (sales). Remember, i have already shown access to this same £50,000 at the time my 1st 3 years leave to remain was granted. Because the law at that time (2013) did not say that i need to show that the invested £50,000 will show my personal name as transaction reference/from my personal account, i transferred this £50,000 to this dedicated business savings (which was opened in error by my business account manager) ready for investment into my business current account (i would have transferred this money straight into my business current account if the law as at 2013 said what the November 19th 2015 version was saying). I only know about the account name of this business savings account at the time i was to go for my extension (for 2 years) application in 2016. If i log into this savings account online it will be showing my name as the account holder. However, when the account statement was printed out in 2016, it was showing my business name. It was impossible for the bank to change the account name from a business account back to my personal account in 2016. However, the bank was able to give me a letter stating that i am the account holder (as shown in the account when logged into online), the sole signatory and that i authorised the transfer of the £50,000 from the business savings account to my business current account. I included this letter as part of evidence for the £50,000 investment in the 2nd Tier 1 Entrepreneur extension application. For some reason, Home Office ignored this letter in the list of documents that accompanied my application in both the GCID/SAR (subject access request) and the refusal letter.

[marcnath]

But did you actually make an investment of cash into the business ?

From your description, you did not. You just moved funds from one business account to another. Maybe that money was from Sales - is that the case ?

How did you manage to show a transfer of funds between accounts as investment in the company accounts ?

Hello Marcnath, many thanks for your comment. Yes, i made the investment. The £50,000 was my money. The saving account were i saved the £50,000 (over a period of about 9 months) was opened as business savings account in error by my business account manager. The build up of this £50,000 is all my savings and not that of the business (sales). Remember, i have already shown access to this same £50,000 at the time my 1st 3 years leave to remain was granted. Because the law at that time (2013) did not say that i need to show that the invested £50,000 will show my personal name as transaction reference/from my personal account, i transferred this £50,000 to this dedicated business savings (which was opened in error by my business account manager) ready for investment into my business current account (i would have transferred this money straight into my business current account if the law as at 2013 said what the November 19th 2015 version was saying). I only know about the account name of this business savings account at the time i was to go for my extension (for 2 years) application in 2016. If i log into this savings account online it will be showing my name as the account holder. However, when the account statement was printed out in 2016, it was showing my business name. It was impossible for the bank to change the account name from a business account back to my personal account in 2016. However, the bank was able to give me a letter stating that i am the account holder (as shown in the account when logged into online), the sole signatory and that i authorised the transfer of the £50,000 from the business savings account to my business current account. I included this letter as part of evidence for the £50,000 investment in the 2nd Tier 1 Entrepreneur extension application. For some reason, Home Office ignored this letter in the list of documents that accompanied my application in both the GCID/SAR (subject access request) and the refusal letter.

This is still confusing ?

Why did you not just submit the evidence for transfer from your personal account to the Business savings account ?

Also, what exactly did the annual accounts show ? Did it show the investment with your name against this ?

[ssb27]

But did you actually make an investment of cash into the business ?

From your description, you did not. You just moved funds from one business account to another. Maybe that money was from Sales - is that the case ?

How did you manage to show a transfer of funds between accounts as investment in the company accounts ?

i transferred this £50,000 to this dedicated business savings (which was opened in error by my business account manager) ready for investment into my business current account.

Hi Chuks222, sorry for the stress you have gone through...

Why didn't you show evidence for this transfer as i assume the money originated from your personal acct before being transferred to your buss savings acct?

[Chuks2222]

But did you actually make an investment of cash into the business ?

From your description, you did not. You just moved funds from one business account to another. Maybe that money was from Sales - is that the case ?

How did you manage to show a transfer of funds between accounts as investment in the company accounts ?

Hello Marcnath, many thanks for your comment. Yes, i made the investment. The £50,000 was my money. The saving account were i saved the £50,000 (over a period of about 9 months) was opened as business savings account in error by my business account manager. The build up of this £50,000 is all my savings and not that of the business (sales). Remember, i have already shown access to this same £50,000 at the time my 1st 3 years leave to remain was granted. Because the law at that time (2013) did not say that i need to show that the invested £50,000 will show my personal name as transaction reference/from my personal account, i transferred this £50,000 to this dedicated business savings (which was opened in error by my business account manager) ready for investment into my business current account (i would have transferred this money straight into my business current account if the law as at 2013 said what the November 19th 2015 version was saying). I only know about the account name of this business savings account at the time i was to go for my extension (for 2 years) application in 2016. If i log into this savings account online it will be showing my name as the account holder. However, when the account statement was printed out in 2016, it was showing my business name. It was impossible for the bank to change the account name from a business account back to my personal account in 2016. However, the bank was able to give me a letter stating that i am the account holder (as shown in the account when logged into online), the sole signatory and that i authorised the transfer of the £50,000 from the business savings account to my business current account. I included this letter as part of evidence for the £50,000 investment in the 2nd Tier 1 Entrepreneur extension application. For some reason, Home Office ignored this letter in the list of documents that accompanied my application in both the GCID/SAR (subject access request) and the refusal letter.

This is still confusing ?

Why did you not just submit the evidence for transfer from your personal account to the Business savings account ?

Also, what exactly did the annual accounts show ? Did it show the investment with your name against this ?

Hello Marcnath, many thanks for your response. Sorry for my late response.
Let me make the explanation a bit simpler and give you the entire picture. As at the time (in course of my 2 years PSW migrant status) i was to migrate to Tier 1 Entrepreneur, i saved up to about £130,000. £50,000 of the £130,000 was kept in the business saving account while the £80,000 was keep in my personal savings account. I used the £80,000 in my personal account to prove access to £50,000 in my initial grant of 3 years leave to remain. However, this £80,000 was eventually used ( 2 months after receiving my initial 3 years Tier 1 Entrepreneur visa) to pay for the 20% deposit of my residential/office accommodation (price of the property in 2014 was £400,000). Before paying for 20% of my property, I transferred the £50,000 in my business savings account to my business current account because the immigration rule at the time of investment did not say that the transaction reference for the £50,000 investment fund will show my personal name.
Moreso, my 3 year unaudited account showed clearly that the credit/investment of £50,000 was made by me.

[Chuks2222]

It seems you did not seek proper advice here when you were refused the first time (you put your confidence in a solicitor ??). Then you went ahead the second time with the same documents expecting different results. You could have fixed this by converting the director's loan to share capital instead in your second application to avoid this headache. Also the rules applicable at the time of application will be considered not any new changes.

Hello Zimba88, thanks a lot for your response.
Please, do you know if it's possible for me to convert this director's loan to share capital (with all the necessary paper works) now and reapply again at this stage (i.e. third application)?

[zimba]

I transferred the £50,000 in my business savings account to my business current account because the immigration rule at the time of investment did not say that the transaction reference for the £50,000 investment fund will show my personal name.

Why didn't you send this evidence ??

[marcnath]

Hello Marcnath, many thanks for your response. Sorry for my late response.
Let me make the explanation a bit simpler and give you the entire picture. As at the time (in course of my 2 years PSW migrant status) i was to migrate to Tier 1 Entrepreneur, i saved up to about £130,000. £50,000 of the £130,000 was kept in the business saving account while the £80,000 was keep in my personal savings account. I used the £80,000 in my personal account to prove access to £50,000 in my initial grant of 3 years leave to remain. However, this £80,000 was eventually used ( 2 months after receiving my initial 3 years Tier 1 Entrepreneur visa) to pay for the 20% deposit of my residential/office accommodation (price of the property in 2014 was £400,000). Before paying for 20% of my property, I transferred the £50,000 in my business savings account to my business current account because the immigration rule at the time of investment did not say that the transaction reference for the £50,000 investment fund will show my personal name.
Moreso, my 3 year unaudited account showed clearly that the credit/investment of £50,000 was made by me.

It may be me, but your explanations just turn up to be more confusing and raise even more questions.

Unfortunately, it appears you made mistakes that could have been easily corrected. There is something I am missing or you had really bad advisers/solicitors.

I still can't figure out how any accountant would record a transfer from savings to current account of the same business as an investment. So, your accounts itself is suspect.

And, unfortunately, since you say the personal investment into the savings account was over the two year PSW period, at least part of that will not qualify as investment within 12 months of the application date either.

So, even if the requirement to shown transfer from personal account is removed, it still appears you have not met the requirement.

But this is just with the limited information. I assume you are seeking proper legal advice from someone who has all the exact information and can guide you on next steps.

[Chuks2222]

I transferred the £50,000 in my business savings account to my business current account because the immigration rule at the time of investment did not say that the transaction reference for the £50,000 investment fund will show my personal name.

Why didn't you send this evidence ??

Hello Zimba88, thanks for your response. Please, which of the evidence are you asking for? Is the transfer of the £50,000 from my business saving account to my business current account or the immigration rule at the time of investment?

[Chuks2222]

[And, unfortunately, since you say the personal investment into the savings account was over the two year PSW period, at least part of that will not qualify as investment within 12 months of the application date either.

So, even if the requirement to shown transfer from personal account is removed, it still appears you have not met the requirement.]

Hello Marcnath, thanks for your response. Please, could you throw more light on above part of your previous response. Are you saying that the money i made legitimately in the UK with all personal income tax paid for as at time i was a PSW migrant can not be used as an investment into my business as a Tier 1 Entrepreneur migrant?

[Chuks2222]

Hello Marcnath, many thanks for your response. Sorry for my late response.
Let me make the explanation a bit simpler and give you the entire picture. As at the time (in course of my 2 years PSW migrant status) i was to migrate to Tier 1 Entrepreneur, i saved up to about £130,000. £50,000 of the £130,000 was kept in the business saving account while the £80,000 was keep in my personal savings account. I used the £80,000 in my personal account to prove access to £50,000 in my initial grant of 3 years leave to remain. However, this £80,000 was eventually used ( 2 months after receiving my initial 3 years Tier 1 Entrepreneur visa) to pay for the 20% deposit of my residential/office accommodation (price of the property in 2014 was £400,000). Before paying for 20% of my property, I transferred the £50,000 in my business savings account to my business current account because the immigration rule at the time of investment did not say that the transaction reference for the £50,000 investment fund will show my personal name.
Moreso, my 3 year unaudited account showed clearly that the credit/investment of £50,000 was made by me.

And, unfortunately, since you say the personal investment into the savings account was over the two year PSW period, at least part of that will not qualify as investment within 12 months of the application date either.

So, even if the requirement to shown transfer from personal account is removed, it still appears you have not met the requirement.

Hello Marcnath, thanks for your response. Please, could you throw more light on above part of your previous response. Are you saying that the money i made legitimately in the UK with all personal income tax paid for as at time i was a PSW migrant can not be used as an investment into my business as a Tier 1 Entrepreneur migrant?

[ssb27]

But did you actually make an investment of cash into the business ?

From your description, you did not. You just moved funds from one business account to another. Maybe that money was from Sales - is that the case ?

How did you manage to show a transfer of funds between accounts as investment in the company accounts ?

Hello Marcnath, many thanks for your comment. Yes, i made the investment. The £50,000 was my money. The saving account were i saved the £50,000 (over a period of about 9 months) was opened as business savings account in error by my business account manager. The build up of this £50,000 is all my savings and not that of the business (sales). Remember, i have already shown access to this same £50,000 at the time my 1st 3 years leave to remain was granted. Because the law at that time (2013) did not say that i need to show that the invested £50,000 will show my personal name as transaction reference/from my personal account, i transferred this £50,000 to this dedicated business savings (which was opened in error by my business account manager) ready for investment into my business current account (i would have transferred this money straight into my business current account if the law as at 2013 said what the November 19th 2015 version was saying). I only know about the account name of this business savings account at the time i was to go for my extension (for 2 years) application in 2016. If i log into this savings account online it will be showing my name as the account holder. However, when the account statement was printed out in 2016, it was showing my business name. It was impossible for the bank to change the account name from a business account back to my personal account in 2016. However, the bank was able to give me a letter stating that i am the account holder (as shown in the account when logged into online), the sole signatory and that i authorised the transfer of the £50,000 from the business savings account to my business current account. I included this letter as part of evidence for the £50,000 investment in the 2nd Tier 1 Entrepreneur extension application. For some reason, Home Office ignored this letter in the list of documents that accompanied my application in both the GCID/SAR (subject access request) and the refusal letter.

This is still confusing ?

Why did you not just submit the evidence for transfer from your personal account to the Business savings account ?

Also, what exactly did the annual accounts show ? Did it show the investment with your name against this ?

Hello Marcnath, many thanks for your response. Sorry for my late response.
Let me make the explanation a bit simpler and give you the entire picture. As at the time (in course of my 2 years PSW migrant status) i was to migrate to Tier 1 Entrepreneur, i saved up to about £130,000. £50,000 of the £130,000 was kept in the business saving account while the £80,000 was keep in my personal savings account. I used the £80,000 in my personal account to prove access to £50,000 in my initial grant of 3 years leave to remain. However, this £80,000 was eventually used ( 2 months after receiving my initial 3 years Tier 1 Entrepreneur visa) to pay for the 20% deposit of my residential/office accommodation (price of the property in 2014 was £400,000). Before paying for 20% of my property, I transferred the £50,000 in my business savings account to my business current account because the immigration rule at the time of investment did not say that the transaction reference for the £50,000 investment fund will show my personal name.
Moreso, my 3 year unaudited account showed clearly that the credit/investment of £50,000 was made by me.

Hi Chuks2222

You still haven't answered a crucial question. Where did the £50,000 originate from? Was it through sales or was it your personal savings?
I mean the £50,000 must have been somewhere before it landed into your business savings account.
Also, when did the £50,000 start reflecting in your Business Savings account? was it before your initial grant? because if i am not mistaken, you can claim you invested £50,000 then - This is an option but might not be the best.

You need to check if there is an option for a 3rd application

[marcnath]

Hello Marcnath, many thanks for your response. Sorry for my late response.
Let me make the explanation a bit simpler and give you the entire picture. As at the time (in course of my 2 years PSW migrant status) i was to migrate to Tier 1 Entrepreneur, i saved up to about £130,000. £50,000 of the £130,000 was kept in the business saving account while the £80,000 was keep in my personal savings account. I used the £80,000 in my personal account to prove access to £50,000 in my initial grant of 3 years leave to remain. However, this £80,000 was eventually used ( 2 months after receiving my initial 3 years Tier 1 Entrepreneur visa) to pay for the 20% deposit of my residential/office accommodation (price of the property in 2014 was £400,000). Before paying for 20% of my property, I transferred the £50,000 in my business savings account to my business current account because the immigration rule at the time of investment did not say that the transaction reference for the £50,000 investment fund will show my personal name.
Moreso, my 3 year unaudited account showed clearly that the credit/investment of £50,000 was made by me.

And, unfortunately, since you say the personal investment into the savings account was over the two year PSW period, at least part of that will not qualify as investment within 12 months of the application date either.

So, even if the requirement to shown transfer from personal account is removed, it still appears you have not met the requirement.

Hello Marcnath, thanks for your response. Please, could you throw more light on above part of your previous response. Are you saying that the money i made legitimately in the UK with all personal income tax paid for as at time i was a PSW migrant can not be used as an investment into my business as a Tier 1 Entrepreneur migrant?

To be clear, what I am saying is:

1) A transfer from the Business Savings account of a Business X to the Business Current account of Business X (which is what you seem to have done) IS NOT an investment. In my opinion, if your accountant recorded that as investment, they should be disbarred from practicing. That transfer should not even turn up in your annual accounts.
2) The money you put into the Business Savings account is eligible to be recognised as investment. But it has to be made not more than 12 months before your application. You said it was done over the 2 year PSW period, so I assume at least some of it is beyond the 12 month period. And anything beyond 12 months is not recognisable as investment for your T1E

[marcnath]

It seems you did not seek proper advice here when you were refused the first time (you put your confidence in a solicitor ??). Then you went ahead the second time with the same documents expecting different results. You could have fixed this by converting the director's loan to share capital instead in your second application to avoid this headache. Also the rules applicable at the time of application will be considered not any new changes.

Hello Zimba88, thanks a lot for your response.
Please, do you know if it's possible for me to convert this director's loan to share capital (with all the necessary paper works) now and reapply again at this stage (i.e. third application)?

Your only option for a so called 3rd application is one that is not very practical. You need to leave the country, wait for 12 months (to have the overstay disregarded) and apply for a new 200K route.

[ssb27]

Hello Marcnath, many thanks for your response. Sorry for my late response.
Let me make the explanation a bit simpler and give you the entire picture. As at the time (in course of my 2 years PSW migrant status) i was to migrate to Tier 1 Entrepreneur, i saved up to about £130,000. £50,000 of the £130,000 was kept in the business saving account while the £80,000 was keep in my personal savings account. I used the £80,000 in my personal account to prove access to £50,000 in my initial grant of 3 years leave to remain. However, this £80,000 was eventually used ( 2 months after receiving my initial 3 years Tier 1 Entrepreneur visa) to pay for the 20% deposit of my residential/office accommodation (price of the property in 2014 was £400,000). Before paying for 20% of my property, I transferred the £50,000 in my business savings account to my business current account because the immigration rule at the time of investment did not say that the transaction reference for the £50,000 investment fund will show my personal name.
Moreso, my 3 year unaudited account showed clearly that the credit/investment of £50,000 was made by me.

And, unfortunately, since you say the personal investment into the savings account was over the two year PSW period, at least part of that will not qualify as investment within 12 months of the application date either.

So, even if the requirement to shown transfer from personal account is removed, it still appears you have not met the requirement.

Hello Marcnath, thanks for your response. Please, could you throw more light on above part of your previous response. Are you saying that the money i made legitimately in the UK with all personal income tax paid for as at time i was a PSW migrant can not be used as an investment into my business as a Tier 1 Entrepreneur migrant?

To be clear, what I am saying is:

1) A transfer from the Business Savings account of a Business X to the Business Current account of Business X (which is what you seem to have done) IS NOT an investment. In my opinion, if your accountant recorded that as investment, they should be disbarred from practicing. That transfer should not even turn up in your annual accounts.
2) The money you put into the Business Savings account is eligible to be recognised as investment. But it has to be made not more than 12 months before your application. You said it was done over the 2 year PSW period, so I assume at least some of it is beyond the 12 month period. And anything beyond 12 months is not recognisable as investment for your T1E

Hi Marcnath
Isn't it possible to show the money as already invested in initial application if he transferred it 12months before he applied?
I am sure the have been a few scenarios of people showing proof of money already invested in the initial application

[marcnath]

Hi Marcnath
Isn't it possible to show the money as already invested in initial application if he transferred it 12months before he applied?
I am sure the have been a few scenarios of people showing proof of money already invested in the initial application

Yes, but the initial application was in 2013, so that is not an option for OP now.

[Chuks2222]

Hello Marcnath, many thanks for your comment. Yes, i made the investment. The £50,000 was my money. The saving account were i saved the £50,000 (over a period of about 9 months) was opened as business savings account in error by my business account manager. The build up of this £50,000 is all my savings and not that of the business (sales). Remember, i have already shown access to this same £50,000 at the time my 1st 3 years leave to remain was granted. Because the law at that time (2013) did not say that i need to show that the invested £50,000 will show my personal name as transaction reference/from my personal account, i transferred this £50,000 to this dedicated business savings (which was opened in error by my business account manager) ready for investment into my business current account (i would have transferred this money straight into my business current account if the law as at 2013 said what the November 19th 2015 version was saying). I only know about the account name of this business savings account at the time i was to go for my extension (for 2 years) application in 2016. If i log into this savings account online it will be showing my name as the account holder. However, when the account statement was printed out in 2016, it was showing my business name. It was impossible for the bank to change the account name from a business account back to my personal account in 2016. However, the bank was able to give me a letter stating that i am the account holder (as shown in the account when logged into online), the sole signatory and that i authorised the transfer of the £50,000 from the business savings account to my business current account. I included this letter as part of evidence for the £50,000 investment in the 2nd Tier 1 Entrepreneur extension application. For some reason, Home Office ignored this letter in the list of documents that accompanied my application in both the GCID/SAR (subject access request) and the refusal letter.

This is still confusing ?

Why did you not just submit the evidence for transfer from your personal account to the Business savings account ?

Also, what exactly did the annual accounts show ? Did it show the investment with your name against this ?

Hello Marcnath, many thanks for your response. Sorry for my late response.
Let me make the explanation a bit simpler and give you the entire picture. As at the time (in course of my 2 years PSW migrant status) i was to migrate to Tier 1 Entrepreneur, i saved up to about £130,000. £50,000 of the £130,000 was kept in the business saving account while the £80,000 was keep in my personal savings account. I used the £80,000 in my personal account to prove access to £50,000 in my initial grant of 3 years leave to remain. However, this £80,000 was eventually used ( 2 months after receiving my initial 3 years Tier 1 Entrepreneur visa) to pay for the 20% deposit of my residential/office accommodation (price of the property in 2014 was £400,000). Before paying for 20% of my property, I transferred the £50,000 in my business savings account to my business current account because the immigration rule at the time of investment did not say that the transaction reference for the £50,000 investment fund will show my personal name.
Moreso, my 3 year unaudited account showed clearly that the credit/investment of £50,000 was made by me.

Hi Chuks2222

You still haven't answered a crucial question. Where did the £50,000 originate from? Was it through sales or was it your personal savings?
I mean the £50,000 must have been somewhere before it landed into your business savings account.
Also, when did the £50,000 start reflecting in your Business Savings account? was it before your initial grant? because if i am not mistaken, you can claim you invested £50,000 then - This is an option but might not be the best.

You need to check if there is an option for a 3rd application

Hello ssb27, thanks for your response. The answers to your questions are as follows:
1. Where did the £50,000 originate from? Was it through sales or was it your personal savings? = The £50,000 originated from payments made to me by my business in the form of salaries, specialised services, etc from feb 2013 - Oct 2013.

2. Also, when did the £50,000 start reflecting in your Business Savings account? was it before your initial grant? = The £50,000 started reflecting in my business savings account from feb 2013 - Oct 2013. That is, the savings/build up of the £50,000 in my business savings account started from feb 2013 - Oct 2013 (before my initial grant of 3 years T1E). My first grant of 3 years of T1E started 1st Dec., 2013.

[Chuks2222]

Hello Marcnath, many thanks for your response. Sorry for my late response.
Let me make the explanation a bit simpler and give you the entire picture. As at the time (in course of my 2 years PSW migrant status) i was to migrate to Tier 1 Entrepreneur, i saved up to about £130,000. £50,000 of the £130,000 was kept in the business saving account while the £80,000 was keep in my personal savings account. I used the £80,000 in my personal account to prove access to £50,000 in my initial grant of 3 years leave to remain. However, this £80,000 was eventually used ( 2 months after receiving my initial 3 years Tier 1 Entrepreneur visa) to pay for the 20% deposit of my residential/office accommodation (price of the property in 2014 was £400,000). Before paying for 20% of my property, I transferred the £50,000 in my business savings account to my business current account because the immigration rule at the time of investment did not say that the transaction reference for the £50,000 investment fund will show my personal name.
Moreso, my 3 year unaudited account showed clearly that the credit/investment of £50,000 was made by me.

And, unfortunately, since you say the personal investment into the savings account was over the two year PSW period, at least part of that will not qualify as investment within 12 months of the application date either.

So, even if the requirement to shown transfer from personal account is removed, it still appears you have not met the requirement.

Hello Marcnath, thanks for your response. Please, could you throw more light on above part of your previous response. Are you saying that the money i made legitimately in the UK with all personal income tax paid for as at time i was a PSW migrant can not be used as an investment into my business as a Tier 1 Entrepreneur migrant?

To be clear, what I am saying is:

1) A transfer from the Business Savings account of a Business X to the Business Current account of Business X (which is what you seem to have done) IS NOT an investment. In my opinion, if your accountant recorded that as investment, they should be disbarred from practicing. That transfer should not even turn up in your annual accounts.
2) The money you put into the Business Savings account is eligible to be recognised as investment. But it has to be made not more than 12 months before your application. You said it was done over the 2 year PSW period, so I assume at least some of it is beyond the 12 month period. And anything beyond 12 months is not recognisable as investment for your T1E

Hello Marcnath, thanks for your response. The exact save up period for the £50,000 in my business savings account was from Feb 2013 - Oct 2013. My 1st 3 years T1E started from 1st Dec., 2013. Hence the save up period for the £50,000 in my business savings account was less than 12 months before my application for the initial grant of 3 years as a T1E.

[Chuks2222]

It seems you did not seek proper advice here when you were refused the first time (you put your confidence in a solicitor ??). Then you went ahead the second time with the same documents expecting different results. You could have fixed this by converting the director's loan to share capital instead in your second application to avoid this headache. Also the rules applicable at the time of application will be considered not any new changes.

Hello Zimba88, thanks a lot for your response.
Please, do you know if it's possible for me to convert this director's loan to share capital (with all the necessary paper works) now and reapply again at this stage (i.e. third application)?

Your only option for a so called 3rd application is one that is not very practical. You need to leave the country, wait for 12 months (to have the overstay disregarded) and apply for a new 200K route.

Hello Marcnath, thanks for your response. The challenge i am having now is that i have exhausted all my life savings (with no right to work or do business, no benefit & no recourse to public fund) in the pursuit of this immigration issue over the last 2 years (since Dec. 2016). With my 6 dependants (wife + 5 children) and property (currently valued at £510,000) at the risk of being repossessed, how can i leave the country and start up life again without a penny?

[marcnath]

Hello Marcnath, thanks for your response. The exact save up period for the £50,000 in my business savings account was from Feb 2013 - Oct 2013. My 1st 3 years T1E started from 1st Dec., 2013. Hence the save up period for the £50,000 in my business savings account was less than 12 months before my application for the initial grant of 3 years as a T1E.

I feel really sorry for you.
It looks like you had met the requirement but submitted the wrong evidence. I assume you did not even submit the accounts for 2013. It took me so many questions to get to this. How can we expect HO to identify this ?
If you used an immigration advisor or solicitor for your application, they should have been able to.

Assuming that your children are all very young and lived in the UK for most of their life, I assume are going to try to apply based on family and so on. None of those routes are easy but those appear to be the only ones available.