Genuine Earnings and Tier 1 (General) settlement applications
Persons applying for indefinite leave to remain in the UK as a Tier 1 (General) Migrant must meet the requirements within paragraph 245CD of the Immigration Rules. Paragraph 245CD(e) and (f) require the applicant to score either 75 or 80 points (depending on the applicant’s particular circumstances) for attributes under Appendix A to the Immigration Rules. A set number of points will be awarded based on, amongst other things, past earnings from a 12 month period prior to the date of the application.
Earnings can include, but are not limited to, salaries, self-employment income, earnings through business activities, dividends (where the applicant is active in the day to day management of the company), property rental income (where this is part of the applicant’s business) statutory and contractual maternity pay and other allowances which form part of an applicant’s employment package.
When considering whether to award points on the basis of previous earnings the Home Office must be satisfied that the earnings are from genuine employment.
When conducting this assessment, the Home Office will have regard to a number of factors, including:
- The evidence submitted with the application for indefinite leave to remain;
- Whether the income appears to have been earned from genuine employment, rather than being borrowed, gifted or included in the financial documents for the purposes of the application;
- Whether the business from which the money is received actually exists (or existed) and IS lawfully and genuinely trading;
- Previous earnings claims made to the Home Office in relation to earlier applications compared with declarations made to other government departments, such as HM Revenue and Customs;
- The applicant’s previous educational and business experience;
- The applicant’s immigration history and previous activity in the UK;
- Whether the applicant has undergone mandatory accreditation/registration/insurance where this is required by the nature of the business; and
- Any payments made by the applicant to third parties.
The Home Office is frequently carrying out verification checks with HM Revenue and Customs (HMRC) and comparing previous declarations made in respect of any relevant tax returns against the information declared in previous applications for leave to enter/remain in the UK.
Where discrepancies are identified the Home Office may conclude that the income is not from genuine employment and potentially award 0 points for previous earnings.
In addition, the Home Office may find that failure to declare such information to HMRC could engage the general grounds for refusal set out within Part 9 of the Immigration Rules.
Paragraph 322(1A) provides the Home Office with a mandatory basis for refusing an application where the applicant has made false representations or submitted false documents in connection with their application.
Where the Home Office finds that false representations were used, or there was a failure to disclose material facts, in relation to a previous application for leave to remain, paragraph 322(2) of the Immigration Rules provides for a discretionary (rather than mandatory) basis for refusing an application.
In addition, a provision which is often relied on by the Home Office in these matters is paragraph 322(5) which provides a discretionary basis for refusing an application where the Home Office considers it to be undesirable to grant leave to remain in the light of the person's conduct, character or associations.
In the event that an application for indefinite leave to remain is refused, unless a human rights claim is made as part of the application, then the refusal can be challenged by way of Administrative Review. As there is limited scope for introducing fresh evidence as part of an Administrative Review it is very important that the application for indefinite leave to remain is carefully and thoroughly prepared.
If you would like further advice regarding an application for indefinite leave to remain as a Tier 1 (General) migrant or would like professional legal assistance with preparing your application then please contact our immigration barristers direct in London on 0203 617 9173 or email firstname.lastname@example.org.