Individuals applying for an Extension of Leave or Indefinite Leave to Remain in the UK as a Tier 1 Entrepreneur have had to create jobs in their business/businesses.
The Job Creation Rule & Guidance
The current rules state:
The applicant has:
(a) established a new business or businesses that has or have created the equivalent of at least 2 new full time jobs for settled workers, or
(b) taken over or invested in an existing business or businesses and their services or investment have resulted in a net increase in the employment provided by the business or businesses for settled workers by creating the equivalent of at least 2 new full time jobs for settled workers.
The jobs must have existed for at least 12 months during the applicant’s most recent grant of leave as a Tier 1 (Entrepreneur) Migrant or, where that leave was granted less than 12 months ago, for at least the 12 months immediately before the date of application.
Historically, the guidance accompanying the rules allowed a more generous interpretation of this requirement, allowing individuals to rely on multiple employees whose employment adds up to 12 months when combined.
This was addressed in several unsatisfactory ways, most notably in the guidance, but not in the Immigration Rules. From 7 April 2014, the guidance (version 4) stated that:
Tier 1 (Entrepreneur) migrants who successfully applied to enter the route before 6 April 2014, and still meet the requirements when they apply for extensions may continue to employ:
one worker for 24 months
one worker for six months and one for 18 months, or
four workers for six months each.
This was finally brought into the Rules in the statement of changes of 7 December 2017, implemented from 11 January 2018, but with an end date. Applications can only be made relying on the more flexible job creation requirements if they first applied to enter the category before 6 April 2014 and if they are making their application before 6 April 2019.
An individual who intended to make their application after this date relying on this concession may need to bring forward their date of application, or alternatively establish if they have sufficient time left in their leave to create the required two jobs for 12 months each. Jobs that exist during the time that leave as a Tier 1 (Entrepreneur) has been extended by section 3C of the Immigration Act 1971 can, in some circumstances count towards the 12 months required.
Individuals who first applied to enter the category before 6 April 2014 who have not yet applied for Indefinite Leave to Remain, particularly those whose entry in the category may have been delayed by an appeal or Judicial Review process, should review their job creation position now to ensure that they will be on target to be able to meet the relevant requirements, either by making their application before or after 6 April 2019.
Contact Our Business Immigration Barristers
For advice or assistance making a Tier 1 (Entrepreneur) application or challenging a decision, contact our immigration barristers on 0203 617 9173 or firstname.lastname@example.org