Entrepreneur Visa Extension & ILR Job Creation Requirement
The Entrepreneur Visa category is no longer open to new entrants. However, existing Tier 1 Entrepreneur migrants can still extend their stay and settle in the UK. In this post we will take a closer look at the job creation requirement and how the requirement can be met in Tier 1 Entrepreneur visa extension and Tier 1 Entrepreneur visa ILR applications.
Understanding the Entrepreneur Job Creation Requirement
Tier 1 Entrepreneur Extension Applications
The requirement for job creation in an Entrepreneur extension application is set out in Table 5 in Appendix A: Attributes to the Immigration Rules:
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.
This means that (unless a Covid concession applies – see further below) an applicant must have created at least two new full-time jobs for settled workers and these jobs must have existed for at least 12 months. Further, if an applicant has taken over or joined an existing business, their investment must have resulted in a net increase in employment.
If two Tier 1 (Entrepreneur) migrants are part of the same entrepreneurial team, they may rely on the same evidence of job creation.
Entrepreneur Extension Job Creation Concession Relating to Covid-19
The Home Office introduced a job creation concession in 2020 (updated in 2021) for Entrepreneur extension applications for businesses that can demonstrate business disruption due to the coronavirus pandemic. The concession has two separate elements to it:
Not necessary to show 2 workers for 12 consecutive months
If an applicant can demonstrate business disruption due to the pandemic, they do not need to employ at least 2 people for 12 consecutive months. Instead, the 12 month period they are required to employ someone for can be made up of multiple jobs across different months, but this must still be equivalent to 2 full time jobs.
If any of the employees were furloughed under the UK Government furlough scheme, any periods of time spent under the scheme can be counted towards the 12 month period if the employees were paid at least 80% of their normal salary.
Extension possible where unable to employ workers for 12 months
If an applicant has not been able to employ staff for 12 months by the time their visa expires, they will be allowed to extend their stay for a further 2 years, if they can show:
- They have created at least 2 jobs by the date of application
- They have been unable to employ staff for 12 months due to coronavirus
Tier 1 Entrepreneur Indefinite Leave to Remain Applications
The requirement for job creation in an Entrepreneur settlement or ILR application is set out in Table 6 in Appendix A: Attributes to the Immigration Rules:
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 or, where that leave was granted less than 12 months ago, for at least the 12 months immediately before the date of application.
Additionally, an applicant who was previously granted a Covid-19 related extension of leave (see above) must have:
(i) created two jobs meeting the criteria in (a) or (b) for at least the 12-month period referred to above; and
(ii) created at least a further two jobs meeting the criteria in (a) or (b) that have been in existence for at least 12 months by the date of application (these jobs can be the same as (i) providing they meet the requirement of existing for at least a further 12 months).
It will be noted that the Tier 1 Entrepreneur ILR job creation requirement is the same as the Tier 1 Entrepreneur Extension job creation requirement, except that for Tier 1 Entrepreneur ILR applications additional wording is added for applicants who were earlier granted an extension of stay relying on the Covid-19 concession.
This means that if an applicant relied on the Covid-19 concession to extend their Tier 1 Entrepreneur visa then, when they apply for settlement, evidence must be provided to demonstrate that either two full time jobs have lasted for at least 24 months or four jobs have been created which have lasted for at least 12 months. Further information on job creation in a settlement application can be found here.
Entrepreneur Settlement Job Creation Concession Relating to Covid-19
The Covid-19 concession for businesses that can demonstrate business disruption mentioned above (in relation to Entrepreneur extension applications) applies to Entrepreneur settlement applications as well. Again, the concession has two separate elements to it:
Not necessary to show 2 workers for 12 consecutive months
If an applicant can demonstrate business disruption due to the pandemic, they do not need to employ at least 2 people for 12 consecutive months. Instead, the 12 month period they are required to employ someone for can be made up of multiple jobs across different months, but this must still be equivalent to 2 full time jobs.
If the employees were furloughed under the UK Government furlough scheme, any periods of time spent under the scheme can be counted towards the 12 month period if the employees were paid at least 80% of their normal salary.
Extension possible where unable to employ workers for 12 months
If an applicant has not been able to employ staff for 12 months by the time their visa expires, they will be allowed to extend their stay for a further 2 years, if they can show:
- They have created at least 2 jobs by the date of application
- They have been unable to employ staff for 12 months due to coronavirus
Understanding the Definitions
We set out below how the Immigration Rules define some of the job creation terms:
- A full-time job: the job must involve at least 30 hours of paid work per week;
- Combining two or more part time jobs: this can count as one full time job if the total hours combined gives a total of 30 hours;
- Jobs existing 12 months: the jobs must have existed for at least 12 months (does not have to be 12 consecutive months);
- Same job: only the same jobs can be combined together to count towards 12 months;
- Comply with all relevant UK legislation: this includes but is not limited to, the National Minimum Wage Regulations and the Working Time Regulations 1998
- Settled worker: a settled worker is someone who is
- a British citizen; or
- a person who is resident in the UK in accordance with the EEA Regulations or who holds a permanent right of residence in the UK in accordance with regulation 15 of the EEA Regulations; or
- a person with leave to remain or indefinite leave to remain granted under Appendix EU; or
- a British Overseas Territories citizen, except those from the Sovereign Base Areas in Cyprus; or
- a Commonwealth citizen who has been granted permission on the UK Ancestry route on the basis that they have a grandparent born in the UK and Islands; or
- a person who is otherwise settled within the meaning of section 33(2A) of the Immigration Act 1971.
Documents Required to Satisfy the Entrepreneur Job Creation Requirement
In order to satisfy the Home Office that the job creation requirement has been met, a number of specified documents must be provided.
Firstly, applicants must provide printouts of Real Time Full Payment Submissions (FPS) showing the PAYE reporting requirements have been complied with. The FPS must cover the full period of employment relied upon.
Secondly, applicants must provide payslips for each employee used to claim points, covering the full period of employment for which points are being claimed.
Thirdly, applicants need to provide confirmation of the start date, job title, job description, hours paid per pay period and the hourly rate for each employee relied upon as well as noting any changes to the details and dates.
Fourthly, documents must be provided showing that each employee being relied on qualifies as a settled worker in the UK.
Additional documents are required of applicants who seek to demonstrate that they have met the job creation requirement on the basis of being self-employed or a member of a partnership or a director of a UK company (e.g. a current appointments report).
If an applicant took over or joined an existing company, there are also additional documents that must be provided (e.g. a letter from an accountant).
Contact our Immigration Barristers
It is important that applicants understand the job creation requirement and provide the documentary evidence required by the Immigration Rules. To discuss your Tier 1 Entrepreneur extension or settlement application further, contact our Immigration barristers on 0203 617 9173 or complete our enquiry form below.
