On 6 December 2018 the Home Office announced that it was suspending the UK investor visa program amid efforts to crack down on serious organised crime. Roger Gherson, founder of Gherson solicitors, foresees problems in changing laws which do not need to be changed.
A few days after the Home Office said it was suspending the UK investor visa program The Times reported that the suspension had been lifted because of pressure from other government departments. But the program is still under review.
In fact, the Prime Minister indicated in April 2018 that the scheme would be reviewed so the sudden and chaotic suspension and reinstatement remains inexplicable.
Before discussing this further it is necessary to explain the requirements of the investor visa.
Requirements of the investor visa
Essentially the scheme requires an applicant to invest £2 million, £5 million or £10 million in UK government bonds or shares in active and trading UK public or private companies (but not in property).
If the investment is maintained for a required period, and other residential requirements are met, the Investor will be eligible to obtain indefinite leave, also known as settlement (referred to colloquially as permanent residence). The required period is five years where the investment is £2 million, three years where the investment is £5 million and two years in respect of a £10 million investment.
Before processing the application, the applicant must have opened a UK bank account in order to receive the funds to be invested.
Anyone who has tried to open a bank account recently, even for a minor child, will explain the hurdles that have to be overcome. Clients complain that the UK is one of the hardest countries in the world in which to open a bank account because of the compliance requirements necessary to satisfy the bankers and/or the fiduciaries’ checks relating to the source of funds.
In addition, the Home Office requires Investors to be of good character.
Immigration Minister Caroline Nokes said: “The UK will always be open to legitimate and genuine investors who are committed to helping our economy and businesses grow. However, I have been clear that we will not tolerate people who do not play by the rules and seek to abuse the system”.
The Minister added: “That is why I am bringing forward these new measures which will make sure that only genuine investors, who intend to support UK businesses, can benefit from our immigration system”.
So the Minister’s purpose in revising the Investor program is to allow in “only genuine investors, who intend to support UK businesses”.
There has been much speculation about what the changes will be.
What issues are involved?
A large number of investors invest their money in UK government bonds but this does not benefit the UK economy. Many practitioners have suggested changes over the years but their suggestions fell on deaf ears. For example, pooled investments have been suggested as a benefit and this is now being looked at.
However, the real issue is the fact that the Home Office already have the power to investigate fully any prospective applicant’s character extensively prior to granting any visa. The Home Office Immigration Rules ‘General grounds for refusal’ provide that a visa or leave to enter the UK should normally be refused where:
“The immigration officer deems the exclusion of the person from the United Kingdom to be conducive to the public good. For example, because the person’s conduct (including convictions which do not fall within paragraph 320(2)), character, associations, or other reasons, make it undesirable to grant them leave to enter” (Para 320(19)).
Home Office immigration policies contain extensive guidance and information about how to assess an applicant’s character.
Effectively, the Minister is therefore blaming her officers for not doing their jobs properly. She stated that “we will not tolerate people who do not play by the rules and seek to abuse the system”, but existing law and policy is already intolerant of such people. All those who have been granted Investor status to date have passed a good character test (assuming the immigration officials have applied the law properly and carried out the correct checks).
One hopes that the other government departments that forced the Home Office Minister to reverse the suspension will (once the Brexit saga has calmed down) persuade the Home Office Minister that using immigration as a political football to grab headlines in this way is deterring investors of good character from considering the UK. Although investor visa numbers have increased in the last few years, the increase has not been dramatic when compared with the schemes offered by other EU countries: the Cyprus and Malta passport schemes, the golden visa for Portugal etc.
It’s a very dangerous course to whip up fervour against wealthy foreigners and it inspires xenophobia as well as the accompanying side effects and will inevitably damage the UK economy and UK society at large at a time of tremendous uncertainty.
The Law Commission recently reported that: “The Immigration Rules are widely criticised, including by senior members of the judiciary, for being poorly drafted. The structure of the Rules is confusing and the numbering system is inconsistent. There is duplication between categories of application and repetition or near-repetition within categories. In addition, there is a large volume of material which supplements and supports the Rules. The relationship between this material and the Rules is complex”.
Having practiced immigration law since 1979 it is clear that successive governments, when facing pressure on immigration or seeking to “assure the electorate”, just introduce yet more and more rules which are political surplusage – unneeded, and bound to create yet more of the confusion to which the Law Commission refers.
The law does not need changing. The Home Office requires more resources and qualified people. The people who work there do not need to be blamed by Ministers who starve them of valuable resources and then grab the headlines by proposing yet further changes to laws which do not need to be changed.
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