Tier 1 Investor migrants and their families may be eligible to apply for indefinite leave to remain (ILR) (also known as permanent residence or settlement) after five years (or potentially after two or three years under one of the accelerated routes). After remaining in the UK for five years, including at least one as a permanent resident, Tier 1 (Investor) migrants and their dependents may qualify for British citizenship.
Who can apply?
The visa is designed to help you enter the UK and stay for the long term if you do not have access through another route, such as a favourable nationality (typically an EEA passport).
The initial application under the Tier 1 (Investor) immigration category is made from abroad at a British Consulate or the Visa Section of an Embassy or High Commission.
The basic criteria are:
- you must be at least 18 years of age;
- you must have a minimum of £2m;
- that £2m must be:
- your own money, or money under your control; or money you own jointly with your husband, wife, civil partner, unmarried or same-sex partner to which you have unrestricted access; or
- money owned solely by your husband, wife, civil partner or unmarried or same-sex partner to which you have unrestricted access; and
- held in a regulated financial institution; and
- disposable in the UK (that is, in sterling and freely transferable); and
- you must open a UK regulated bank account.
A “regulated financial institution” is one which is regulated by the appropriate regulatory body for the type of transaction and for the country in which the investor’s funds are located.
Care should be taken if you hold investments in a foreign jurisdiction that has more than one regulatory body or certification system for, say, investment managers.
Money counts as “disposable in the UK” if it is held in a UK regulated financial institution. Money can, however, be held abroad so long as it can be transferred to the UK (and is convertible to sterling) should the application be successful. On the application form, the money needs to be converted into sterling to check it equals the minimum required amount.
UK Visas and Immigration (UKVI) check the exchange rate using the Oanda website on the date the application is made.
A “UK regulated bank account” is an account held at a “UK regulated bank”, which is a UK-based financial institution regulated by the Financial Conduct Authority (FCA). The bank must provide a letter confirming the account details, that it was opened for the purposes of investing at least £2m in the UK and that the bank is regulated in the above manner. If you have an account with an entity that does not hold deposits, such as an investment management firm, they are permitted to provide this letter provided it is authorised by the FCA to make investments and hold and / or control client money.
You may rely on the money you hold jointly with your husband, wife, civil partner, unmarried or same-sex partner. You must have unrestricted rights to transfer and dispose of those funds. Similarly, assets held by your husband, wife, civil partner, unmarried or same-sex partner, either jointly or in the partner’s own name, can be taken into account when assessing your net worth, although it can prove challenging to demonstrate that you have unrestricted rights if the money is not in your own name.
You may use investments made in the UK within the 12 months immediately before the date of your application, provided they are held in a UK regulated financial institution.
A “UK regulated financial institution” is an institution regulated by the FCA or Prudential Regulation Authority (PRA) which acts as an agent and provides financial services for its clients.
If the money has not been held in a bank account for 90 days prior to the date the application is submitted, you must provide further evidence of the source of the funds. For example, if you have received the funds by way of a gift, you must provide a validly executed deed of gift and a confirmation letter from a legal advisor qualified in the jurisdiction where the gift is made, confirming the gift is valid and irrevocable.
Applicants are not required to satisfy an English language requirement either in the initial application or for an extension. However, they will have to when they apply for ILR (see below).
Applicants must also provide an overseas criminal record certificate for any country they have resided in continuously or cumulatively for 12 months or more, in the last 10 years before their application.
In order to evidence this requirement, applicants must provide:
- the original certificate, for each country (excluding the UK) where they have resided continuously or cumulatively for 12 months or more in the last 10 years since aged 18 years old, issued by the overseas authority;
- if not in English, a translated copy of any certificates.
It is important to note that Entry Clearance Officers and UKVI caseworkers are able to refuse a Tier 1 (Investor) application if they have reasonable grounds to believe that:
- you are not in control of the investment funds;
- the funds were obtained unlawfully (or by means which would be unlawful if they happened in the UK); or
- the character, conduct or associations of a party providing the funds mean that approving the application is not conducive to the public good.
Provided the application is successful, you and your family will be granted entry to the UK as a Tier 1 (Investor) migrant and dependants, for three years and four months.
To apply for an extension to your Tier 1 (Investor) visa, you must have:
- money of your own;
- under your control;
- in the UK;
- amounting to not less than £2m;
- invested the money in specified ways (see our separate note “The UK investor visa: what investments qualify?”);
- had portfolio reports produced by a UK regulated financial institution for every reporting period, showing information such as the value of the investments and when they were made;
- made the investment within 90 days of either:
- your entry into the UK (where there is evidence to establish your date of entry to the UK, that is passport with stamped visa on entry to the UK or flight tickets and boarding card);
- the date of your grant of visa (where there is no evidence to establish your date of entry to the UK); or
- the date of your grant of extension to your existing Tier 1 (Investor) visa as shown on your approval letter.
Please note that the UKVI will only waive the 90-day requirement in truly exceptional circumstances.
Once invested, all the capital must be maintained in the portfolio. In other words, once the Tier 1 (Investor) has purchased their initial £2m (or £5m or £10m – see below) of qualifying investments, all of the capital must remain invested for the duration of Tier 1 (Investor) migrant’s stay in the UK.
If an investment is sold at a loss, the Tier 1 (Investor) must purchase a new investment at the price at which the investment was sold. If an investment is sold at a gain, the Tier 1 (Investor) must, again, purchase a new investment at the price at which the investment is being sold.
So, for example, if you buy an investment within the £2m portfolio for £100,000, but when it is sold it is only worth £85,000, a new qualifying investment must be bought for £85,000. Equally, if the value of the £100,000 investment increased to £115,000 when it is sold, a new qualifying investment must be bought for £115,000.
When you sell an investment, you will have until the end of the next reporting period, or six months, whichever is sooner, to buy a new qualifying investment.
Those who applied under the Tier 1 (Investor) route from 6 November 2014 must demonstrate that they complied with this requirement at the extension stage, even though it was only introduced on 6 April 2015. If you have been running your portfolio in a way that complied with the old requirements but is in breach of those that came into effect from 6 April 2015, you should seek legal advice as soon as possible.
It is important to note that Tier 1 (Investor) migrants are permitted to remove any income generated from the portfolio, such as interest or dividend payments.
Invested capital cannot be used to pay any portfolio management fees, transaction costs or tax incurred through the buying and selling of investments if these charges will deplete the initial investment below the initial investment level. However, if more than £2m (or £5m or £10m, as appropriate) is invested, it will be possible for the charges to be paid from the surplus, providing the surplus was invested on or before the date the charges were incurred.
For example, if the Tier 1 (Investor) wishes to meet the £2m threshold and has invested £2.1m, up to £0.1m of charges may be paid from the investment funds, irrespective of the market value of the funds.
You cannot rely on investments against which loans have already been taken out, or that are held in offshore custody in order to qualify under this category unless you are already in the UK as a Tier 1 (Investor) and these arrangements were put in place prior to 13 December 2012.
Evidence for extension
The following documents will be accepted as evidence of investment:
- a portfolio of investments certified as correct by a UK regulated financial institution (this portfolio must meet specific requirements which we would be pleased to advise you on);
- if your initial grant of leave was made under the former Tier 1 (Investor) category and you are unable to provide a portfolio because you manage your investments yourself; or you have a portfolio manager who does not operate in the UK and is therefore not regulated by the FCA or PRA, you must supply documentary evidence of your holdings (that is, certified copies of bond documents, share documents or the latest audited accounts of the organisation in which the investment has been made, if the organisation is not required to produce accounts, a certificate from an accountant may be considered).
Our separate note “The UK investor visa: what investments qualify?” gives more detail on the types of investments that do and do not qualify.
Under the rules, you can gain ILR quicker if you invest more in the UK (see the summary below).
If you have a Tier 1 (Investor) visa, you can apply for ILR if:
- you made a £2m investment within the required 90 day period and, maintained it for five years; or
- you made a £2m investment within the 90 day period and have maintained a £5m investment for three years; or
- you made a £2m investment within the 90 day period and have maintained a £10m investment for two years.
Please note that even if you qualify for the accelerated (two or three years) routes to ILR, your dependents will still need to wait five years before being eligible to apply for ILR.
It is of particular importance for you to be aware that you may lose your immigration permission to remain in the UK if you fail to maintain the required investment for the entire duration of your visa.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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- 30 September 2019