Impact of Coronavirus on Tier 1 (Entrepreneur) migrants in the UK
Coronavirus and Covid-19 obviously have a devastating impact on many individuals and families around the world and in other posts we have looked at what individuals can do if the impact of coronavirus means that they must stay inside or outside of the UK at the time their leave to remain expires.
In this post we will simply highlight some matters which Tier 1 (Entrepreneur) migrants and their family members may want to think about, as they navigate the new world in which we are living.
While the majority of Tier 1 (Entrepreneur) migrants will have been in the UK for at least a year now, and be well on their way to investing their funds in their business, there may be some for whom this is not the case. Many applications made at the end of March 2019 were delayed, and some were refused and subject to challenge and so only granted recently. Others may have switched from Graduate Entrepreneur or Start-up, which is still permitted. This means that for migrants who have not yet invested their funds, they may need to think carefully about where their funds are held, and consider the timeline for investing, to ensure that they are able to meet the investment funds requirement prior to the end of the current leave.
Companies which were planning to create jobs, in line with visa requirements, may be looking to delay doing so, and those who have already created jobs may have difficulty in keeping employees over the coming months. While the government has announced a number of measures to protect employees, it is currently unclear if Entrepreneurs will be able to rely on time where they have a furloughed employee who remains employed. Given the requirement that employees who are relied upon work 30 hours per week (or less hours if they are in a part time position, which is contributing to the equivalent of 30 hours per week), it seems unlikely that employees who continue to be paid, but who are not working for the business could be relied upon in an application.
It is possible that the Home Office will release further guidance on this in due course, but until they do, companies may need to plan on the basis that furloughed employees will not count towards job creation. Jobs created in the UK do not need to be filled continuously, so if there is any break while an employee is furloughed, once the employee is back to work for the business, the months before and after can just be added to make up the twelve months of employment needed.
Entrepreneurs who have left their job creation to later in their grant of leave, should ensure that they have sufficient time to still create the jobs that they need in the UK.
Implementing the Business Plan
Applicants for extensions and Indefinite Leave to Remain will need to demonstrate in their application:
‘the applicant’s job title and job description, setting out their role within the company, how they are implementing their business plan and what their main tasks and responsibilities are in running the business on a day-to-day basis.’
Obviously, there will be some businesses where the day to day operations of the business may be interrupted by covid-19 or by the social distancing that it has caused. The overarching plans for the business might be affected too. Some services might be paused, while new markets or new services might be operating. This may need to be explained as part of the application.
Applicants for Indefinite Leave to Remain need to demonstrate that they have no more than 180 days absences from the UK in any 12 month period. The way in which this period is calculated will vary depending on when you were last granted leave. Note that this requirement does not apply to child dependants, but may apply to a Dependant Spouse, depending on when they were granted leave to remain. If, for any reason relating to the pandemic, return travel to the UK is disrupted or delayed, an applicant for Indefinite Leave to Remain may need to rely on discretion being exercised over their absence from the UK.
The Guidance states:
Absences of more than 180 days in a 12-month period before the date of application (in all categories) will mean the continuous period has been broken, unless an exemption applies. However, you may consider a grant of ILR if the applicant provides evidence to show the excessive absence was due to serious or compelling reasons.
Serious or compelling reasons will vary but can include:
- serious illness of the applicant or a close relative
- a conflict
- a natural disaster, for example, volcanic eruption or tsunami
The applicant must provide evidence in the form of a letter which sets out full details of the compelling reason for the absence and supporting documents, for example medical certificates or evidence of disruption to travel arrangements.
It seems likely that the either the serious illness of the applicant or a close relative caused by covid-19 or a natural disaster, might cover circumstances where a person has been physically unable to travel. Where the guidance is less clear is where a person who could technically travel chooses not to, in order to comply with social distancing guidance.
We would hope that caseworkers would exercise sensible decision making in such cases, but would advise anyone who has had disrupted travel which may lead them to be in breach residence requirement rules, to keep evidence of when they intended to return to the UK and the reasons why they did not.
This is particularly important for Tier 1 (Entrepreneur) migrants, who must ensure that they are able to meet all requirements by the time that the category will close.
Contact our Immigration Barristers
For expert and assistance regarding an application for further leave to remain or settlement as a Tier 1 (Entrepreneur), contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.