Changes to the Entrepreneur Visa Job Creation Requirement
The Tier 1 Entrepreneur visa category is for individuals who have set up or invested in a business in the UK. In order to extend their stay or settle in this category, an Entrepreneur needs to meet the Entrepreneur visa job creation requirement. The relevant rules for the Entrepreneur visa job creation requirement changed on 06 April 2019 and this article will look at what the current rules require. As covered in previous posts, the Tier 1 Entrepreneur route is now closed to most new entrants, but if you currently hold a Tier 1 Entrepreneur visa, you can apply for a Tier 1 Entrepreneur visa extension until 5 April 2023 and Tier 1 Entrepreneur visa ILR until 5 April 2025.
Previous Entrepreneur Visa Job Creation Requirement Rules
Those who applied to enter the Tier 1 Entrepreneur visa category before 6 April 2014 and made their application for an extension or stay or ILR before 06 April 2019 were able to rely on the more flexible rules on job creation. A Tier 1 Entrepreneur could satisfy the Entrepreneur visa job creation requirement by relying on:
- one worker for 24 months
- one worker for six months and one for 18 months, or
- four workers for six months each.
Changes to the Entrepreneur Visa Job Creation Requirement Rules
Since 06 April 2019, a Tier 1 Entrepreneur who is seeking an extension of stay or settlement is still required to prove that they have created 2 full-time positions for members of the settled population. However, the Immigration Rules at paragraph 49 now set out the following requirements:
- A full time job is one involving at least 30 hours of paid work per week.
- “The equivalent of” a full time job means two or more part time jobs that add up to 30 hours per week, if each of the jobs exist for at least 12 months. However, one full time job of more than 30 hours of work per week will not count as more than one full time job.
- A job may count even if it does not last 12 consecutive months (for example it lasts for 6 months in one year and 6 months the following year) provided that it is the same job.
- The jobs need not exist on the date of application, provided that they existed for at least 12 months during the period of the most recent grant of leave.
- Different jobs that have existed for less than 12 months cannot be combined together to make up a 12 month job.
- If jobs are being combined, the employees being relied upon must be clearly identified by the applicant in their application.
- The jobs must comply with all relevant UK legislation including, but not limited to, the National Minimum Wage Regulations in effect at the time and the Working Time Regulations 1998.
Issues with the Entrepreneur Visa Job Creation Requirement Immigration Rules
Issue 1: Entrepreneurs can no longer benefit from employing one person for more than 12 months
Previously, an Entrepreneur who entered the Tier 1 Entrepreneur visa category before 6 April 2014 and made their application for an extension or stay or ILR before 06 April 2019, could combine one worker who had worked for six months and one worker who had worked for 18 months. This allowed a Tier 1 Entrepreneur to rely on one person for both “Job 1” and part of “Job 2”.
Under the current Immigration Rules, if one job exists for 18 months and one job for six months, this will only count as one job. The second, shorter job, would need to be filled for an additional six months before the Entrepreneur could apply to extend their leave or settle. From exactly the same scenario, an Entrepreneur is now subject to stricter rules than if they had met the criteria under the transitional arrangements.
Issue 2: Can a Tier 1 Entrepreneur combine more than 2 part-time jobs?
The Policy Guidance on Tier 1 Entrepreneur of the Points Based System (version 3/19) states that:
“If jobs are being combined, with two part time employees being used to create the equivalent of one full time job, the employees being relied upon must be clearly identified by you in your application.”
The guidance specifically refers to two part time employees which suggests that applicants cannot combine multiple employees. It is unclear if this is intentional, as the rules above clearly refer to “two or more part time jobs.” However, the law is of course set out in the Immigration Rules rather than the Guidance, so we prefer to view this as an example of unfortunate drafting in the guidance to caseworkers.
Another issue with this is that the employees must be ‘clearly identified by you in your application.’ This becomes difficult in a practical way as the online application form only allows applicants to put in information regarding the employees start date, end date (if applicable), hourly rate of pay, whether they work part-time or full-time and how many hours they work per week. This can become difficult where people have, for example, stopped being an employee for a period and then returned to work or if their hours have fluctuated throughout their employment.
The Immigration Rules have specific criteria for job creation, which does not account for differences in the way companies may operate. For example, if a company allows for more flexible working hours where the amount of hours worked per week or per month fluctuates or has a high turnover of staff, they may have difficulty ‘clearly identifying’ the employees which they should rely on.
Issue 3: Evidence to provide to meet the job creation requirement
In order to meet the Entrepreneur visa job creation requirement, the specified evidence in Appendix A of the Immigration Rules must be provided. Whilst there has not been a change in the Immigration Rules regarding the evidence, recent case law indicates a stricter approach with regard to how discretion can be exercised when considering a Tier 1 Entrepreneur extension or indefinite leave to remain application.
In the recent case of R (Khajuria) v SSHD [2019] EWHC 1226, at paragraph 28 the Administrative Court observed:
“The system operates in such a way as to allow officials in the department to essentially ‘tick boxes’ in relation to any application and if a box cannot be ticked, for example because the required evidence has not been provided, then to reject the application. This enables the system to be operated efficiently, expeditiously and strictly: the strict operation of the system avoids the risk of different treatment of those who are unable to comply with the strict provisions and therefore the risk of discrimination or partiality.”
The Entrepreneur visa job creation has become stricter and all specified evidence should be provided for an application to be granted. It can be difficult to provide sufficient information on the employees just through the online form. If your company has a particularly complex employee structure, you should provide additional evidence to make it clear to the individual making the decision on your application that you are able to meet the job creation requirement.
Contact Our Business Immigration Barristers
For advice or assistance making a Tier 1 Entrepreneur extension or settlement application or challenging an Entrepreneur refusal decision, contact our immigration barristers on 0203 617 9173 or via our enquiry form below.
