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The job creation requirement – less than 12 months employment

7th Jun, 2018 / Legal & Law Firm, News

The job creation requirement for non-initial Tier 1 (Entrepreneur) applications requires that the applicant’s business has created the equivalent of at least 2 new full time jobs for settled workers.

The tricky part is that 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. This means an applicant will be unable to successfully apply for an extension, or for indefinite leave to remain under the category, if they have not created the jobs promptly during the span of their leave and at least 12 months before its expiry.

What happens then, when someone becomes aware their leave is due to expire in less than 12 months and their business has yet to create 2 jobs?  Or, the business has created jobs, but the jobs will not have been in existence for 12 months at the date of application? All is not lost.

Meeting the job creation requirement with less than 12 months employment

Richmond Chambers’ client, whom we’ll call “Ada”, had been granted entry clearance as a Tier 1 (Entrepreneur) Migrant until late March this year. Ada’s company had employed a settled worker since March 2017, with a second employee not starting until April 2017. Ada was informed that by the time she would have to apply for an extension of her leave (and before that expired), she would not have met the job creation requirement. She could not postpone applying for an extension until April, as her leave would have by then expired and she would be an overstayer. On the other hand, as she wouldn’t be meeting the job creation requirement, her extension application, and the future of her company with it, did not look promising.

Despite this, Ada’s options were considered and a solution seemed possible. We prepared and submitted Ada’s application in advance of the expiry of her leave, making legal representations and submitting documents relating to all but the job creation requirements, for which we stated evidence and representations would follow.

Thankfully, processing times and the timeframe for considering the validity of an application (including the enrolment of biometrics) meant that, following the submission of Ada’s application but before its substantive consideration, her company’s second employee completed 12 months in the job. Had the job been created later than April 2017, that may not have been possible. How, though, did this help Ada?

As previously said, the (equivalent of) 2 jobs must have existed for at least 12 months during the applicant’s most recent grant of leave as a Tier 1 (Entrepreneur) Migrant. From 26 March 2018, the day after Ada’s leave as a Tier 1 (Entrepreneur) was set to expire, and considering she had submitted an application in time which was still pending, Ada’s leave was statutorily extended by virtue of section 3C of the Immigration Act 1971.

In R (on the application of Ahmed) v Secretary of State for the Home Department (3C leave – whether “granted”) [2017] UKUT 00489 (IAC), the Upper Tribunal held as follows:

“Where a person who is present with leave as a Tier 4 student makes an application for further leave in the same capacity during the currency of that leave, his leave, although extended by statutory effect of s3C, is an extension of that same leave and so it continues to be leave granted to him as a Tier 4 Student.” (emphasis added)… READ FULL ARTICLE

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