Getting it almost right

What happened

In late spring 2013, Mr E's tier 1 (entrepreneur) migrant application was refused without a right of appeal. UKVI said that Mr E failed to include marketing material or evidence of contracts. It also said that he had provided bank statements for him and his entrepreneurial team member that were not in joint names. Mr E and his entrepreneurial team member both needed to show that they had £50,000 available to both of them.

Mr E complained and received responses from UKVI. UKVI advised that his application form referred him to the tier 1 guidance and the Immigration Rules, which showed that he needed to provide marketing material and evidence of contracts. It also said that while Mr E provided a declaration to say that the funds were available to both team members, the bank statements did not show that.

Mr E considered that UKVI should have applied its policy of evidential flexibility, which states that if documents are in the wrong format or one document from a series is missing, UKVI should ask the applicant to provide it before refusing the application.

UKVI gave contradictory replies. It first said that it would not have applied evidential flexibility to the issue of the marketing material. It then said that it would. It also, wrongly, said that Mr E had provided evidence of contracts and apologised to him for that. However, UKVI considered that Mr E still had not met the financial requirements because the funds were not in joint names for the entrepreneurial team.

What we found

We did not uphold this complaint. UKVI correctly pointed out that the application form Mr E used pointed him towards the tier 1 guidance and the Immigration Rules, which stated he needed to supply marketing material and evidence of contracts. We considered UKVI's decision on these actions was appropriate.

The guidance was clear that an entrepreneurial team needed to supply evidence of funds through joint accounts or third parties, but team members themselves could not act as third parties to each other. We considered that Mr E's bank statements showed that he could not demonstrate that he had access to the required funds.

We noted that UKVI was inconsistent about whether Mr E supplied evidence of contracts, and whether it would apply evidential flexibility in relation to the marketing material, which was unhelpful. However, we said that Mr E's application would still have been refused because of his failure to show evidence of access to funds.