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The Job Creation Requirement - Less Than 12 Months Employment

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)

Whilst this judgment related to leave under Tier 4 (General) Student, there is no reason it should not apply equally to leave under the Tier 1 (Entrepreneur) category. Further, in paragraph 34 of R (Mehmood & Ali) v SSHD [2015] EWCA Civ 744, as cited in paragraph 21 of R (on the application of Ahmed) v SSHD, Beatson LJ had explained more generally that “3C leave is a continuation of the same leave that existed before the application that had been made which generated the extension of leave: ‘… a statutory extension of the same leave that existed before it was made.’”

As the company’s second employee completed 12 months in the job whilst Ada’s Tier 1 (Entrepreneur) leave was extended by the statutory effect of s3C, Ada met the job creation requirement. It did not matter this happened after the date of the extension application, as the 2 jobs existed for 12 months during Ada’s most recent grant of leave as a Tier 1 (Entrepreneur) which included the time during which it was extended under s3C.

We argued the above and submitted the specified evidence relating to the job creation requirement in support of Ada’s application. We also relied (a contrario) on paragraph 245AA(a) of the Immigration Rules, which states that the decision maker will only consider documents received by the Home Office before the date on which the application is considered. As the wording of the provision logically dictates, the decision maker will consider not only evidence submitted together with the application, but also evidence submitted any time before this is considered.

The result was that, a little over a month later, Ada’s extension was successful and her leave to remain in the UK was granted. Ada was delighted and her business continues to run with her heading it from the UK. All’s well that ends well.

This is proof that even the Points-Based System is not as black and white as it seems and although litigation is scarce in those categories (apart from insofar as the ‘genuineness’ requirement is involved), familiarity with case law and legal principles can be of great assistance. Not to mention Home Office processing times and procedures.

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