Start-Up Visa
A Start-up visa is for high value migrants who are looking to set up their new business in the UK for the very first time. You need to have a business idea which must be innovative, viable and scalable, and supported by an endorsing body. It replaces the old Graduate Entrepreneur visa. Applicants can start to have set up their business before applying but must not have started trading. The Start-up visa is not a route to settlement. The maximum leave granted is two years. However, those in the Start-up category can switch to the Innovator route which does lead to settlement.
This is the key material governing the Start-up route:
- The Immigration Rules at Appendix Start-Up.
- The Guidance Start-Up.
- The Guidance for endorsing bodies.
The period and conditions of the Start-up visa are:
- 2 years maximum in the Start-up route.
- No access to public funds.
- All work except employment as a professional sportsperson is permitted.
- Study is permitted subject to the ATAS requirement.
- Police registration if Part 10 of the Immigration Rules applies.
For certain courses (defined by Appendix ATAS of the Immigration Rules), the student must obtain an ATAS certificate so that the UK authorities and international community can be assured that they will not misuse their learning experience to become involved with weapons of mass destruction. These courses are generally research orientated, e.g. mathematical and computer sciences, biological sciences etc. Nationals of certain countries are exempt from this requirement. The list of exempt nationalities consists of all EEA states, Switzerland, Australia, Canada, Japan, New Zealand, South Korea, Singapore and the USA.
Any foreign national aged 16 or over from countries or territories listed in Appendix 2 to the Immigration Rules needs to register with the police (or, if in London, at the Overseas Visitors Registration Office), as do the stateless and those holding non-national travel documents (e.g. a Refugee Convention travel document), where they are given limited leave to enter the United Kingdom for longer than six months or given limited leave which takes them over 6 months from arrival.
Exempt from this requirement are seasonal agricultural workers, Tier 5 private servants in diplomatic households and overseas government employee, Tier 2 ministers of religion, persons granted leave as partners of a person settled in the United Kingdom, as parents of children at school or on the basis of exercising access rights to a child here, and those granted asylum. Exceptionally, the requirement can be imposed on any other foreign national where the Immigration Officer considers it necessary to ensure that he complies with the terms of his leave.
The structure of the Start-up route
The route’s structure is as standard for modern Points Based System routes:
- Prior entry clearance is needed for those seeking to come to the UK in this route and a valid TB certificate must be provided.
- For in-country applicants the usual Points Based System switching controls (i.e. one can apply so long as one is not a Visitor, Short-Term Student, Parent of a Child Student, Seasonal Worker, domestic worker in a private household, or with leave outside the Immigration Rules and no overstaying beyond that condoned under Rule 39E (application made within 14 days of leave expiring and good reason why application could not be made in time).
- The General Refusal Grounds apply as well as route specific cancellation powers.
- Applicants must be aged 18 or over, and obtain written consent to their application if previously funded by a Government or international scholarship agency.
- The right form, fee, biometrics, passport/travel document must be supplied.
- The endorsement letter must be dated within 3 months of the application date and must not have been withdrawn by the decision date.
- The financial requirements are met for a person previously lawfully UK resident for 12 months – those resident for less time or seeking entry clearance must show £1,270 as per Appendix Finance, unless their endorsing body confirms they have been awarded equivalent funding.
- English language must be established to B2 proficiency as per Appendix English language.
- Administrative review is available for refusals.
- Dependants are permitted (spouse, civil partner, unmarried partner, children) under the usual Points Based System regime subject to the validity, suitability and entry criteria. The relationship requirements for partners and for children must be met.
- Financial criteria for dependants: £285 for a partner, £315 for the first child and £200 for each subsequent child, all additional to the applicant’s own required finances.
- Leave for children is granted in line with whichever parent’s leave first expires.
- Administrative review may be an option if you are refused.
The points requirements for Start-up – & genuineness
70 points are required as follows:
- Business is innovative, viable and scalable – 25 points
- The applicant has not previously established a business in the UK – 25 points
- English Language at level B2 – 10 points
- Financial requirement – 10 points
The applicant must be genuine. There is a credibility test. The Guidance suggests an application might be refused
“where it is unclear that they have the relevant knowledge or skills to carry out their business plan or it’s unclear how the applicant’s proposed business meets a market need or creates a competitive advantage.”
There should be a “credibility interview” before refusing on genuineness grounds unless the applicant has previously been refused (absent material change of circumstances) or where a number of identical or very similar applications have been seen and refused (and where the facts are such that an allegation of lack of credibility could not be refuted). English language ability may be relevant to genuineness, but clear reasoning must be provided.
“If the caseworker refuses an applicant on credibility grounds, they must clearly set out their allegations and reasoning and argument behind these that form the basis for their decision. If a statement made by an applicant is interpretable in different ways, then the caseworker must provide a justification for which way they have interpreted the information.”
The Endorsement requirements for Start-up
There must be endorsement by an endorsing body listed in the Guidance Start-up endorsing bodies. Details are given there of the various specialities of those bodies, some specialise in particular business sectors whilst others have a particular geographical sphere of operation.
That body must supply a dated endorsement letter including:
- the body’s name and name and contact details including telephone, email and business address of an individual therein who can verify the letter’s contents on request.
- endorsement reference number.
- the applicant’s name, date of birth, nationality and passport/travel document number.
- a short description of the business venture and its main products/services.
- confirmation that the endorsement criteria are met.
- confirmation that the applicant will spend the majority of their working time in the UK on this venture.
- confirmation that the applicant has created and is relying on their own business plan.
- The letter must have been issued within 3 months of the application date.
- Confirmation that the applicant is either the sole founder or an instrumental founder where they are part of a team.
- If they were previously in the Start-Up or Tier 1 Graduate Entrepreneur categories, they need not be relying on the same body that endorsed their application under that category.
The Immigration Rules have focussed increasingly on ensuring real involvement in the business from its inception. It is clear the Home Office will audit applications to ensure that nobody is freeloading on the business ideas of others.
As the criteria above indicate, different members of a team can apply: but each must have their own endorsement.
An applicant must not have previously established a business that commenced trading, unless that happened during their last period of permission whilst a Start-up, Tier 1 (Graduate Entrepreneur), or as a student on the doctorate extension scheme. The Guidance encourages close consideration of whether a business established during other forms of lawful residence actually commenced trading – i.e. did it make sales or was it simply registered with a view to securing intellectual property. The Endorsing Bodies Guidance points out that students are not allowed to engage in business activities in the UK and so endorsing bodies should bear in mind that they may carry out preliminary activities like business plans and negotiating contracts, and incurring pre-trading costs with a view to deciding whether to start their business, but must not register with HMRC, work for companies in which they are controlling shareholders or work as directors or trade or establish a trading presence (so no “test marketing”). For student visas granted from 1 October 2019 students may engage in business activities once they have applied to the Home Office for their Start-up visa, providing their endorsing body is a Higher Education provider with a track record of compliance; those with visas granted before then cannot commence business until their Start-up visa is granted.
There is some scope for flexibility when the Home Office is assessing applications: thus the Guidance mentions advising an applicant of a missing element of their claim such as having paid the health charge, or provided evidence of one’s age or current immigration status. so too further information may be sought as to whether the business is innovative, viable and scalable.
There is an express Covid-19 concession:
- For those who have used up the two years of permission in the route but have not yet developed their business sufficiently to make an application as an Innovator
- They may apply for a one-off 12 month extension
- They still need a new endorsement from their endorsing body confirming that reasonable progress has been made, pandemic considered.
The Endorsement Criteria: Innovation, Viability and Scalability
What is an innovative, viable and a scalable business?
The endorsing bodies letter must confirm that these requirements are met.
Innovation: a genuine, original business plan that meets new or existing market needs and creates a competitive advantage.
Viability: the applicant’s business plan must be realistic and achievable based on the applicant’s available resources. 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 is reasonably satisfied that the applicant will spend the majority of their working time in the UK on developing ventures
The Start-up visa envisages a grant of leave where the business skill set is still being actively developed. And as only the majority of your UK time is to be spent on the business, you can do other work to support oneself.
Some clues are given about how each of these should be considered in the Guidance for endorsing bodies.
Innovation
- Offering something more than, rather than just competing with, similar local traders.
- A need in the UK that is not already being fulfilled.
- Bringing something new to the pre-existing UK/global business market.
Viability
- Evidence of market research, realistic and sustainable product goals, with a long-term business plan.
Scalability
- Is the business likely to gain sufficient traction, does it have growth potential, and can it scale up to be part of the national market?