Tier 1 Entrepreneur Settlement: Job Creation Requirement

If you currently hold leave to remain as a Tier 1 Entrepreneur, you can apply to settle in the UK until 05 April 2025. If you became a Tier 1 Entrepreneur by switching into the route  from a Tier 1 Graduate Entrepreneur or Start-up visa (having previously held leave as a Tier 1 Graduate Entrepreneur migrant), you can apply to settle until 05 July 2027. In this article, we explore the Job Creation requirement for applications to settle in the UK as a Tier 1 Entrepreneur.

What is the Job Creation requirement?

You must have created the equivalent of at least 2 full time jobs for settled workers in the UK.

Each job must have lasted for at least 12 months during your most recent grant of leave, but need not exist at the date of application. The 12 months need not be a consecutive period e.g. you could rely on July 2019 to January 2020 and February 2021 to August 2021. You may only rely on jobs created in your initial period of leave if they were maintained for a minimum of 12 months during your most recent extension.  For example, if during your initial grant of leave, you employed a HR manager and continue to do so during your extension (regardless of whether this role is now occupied by a new individual or not), you may rely on them to meet the requirement. Comparatively, if you originally employed an office manager, but have since downsized your office space so no longer employ one full time, this job cannot be relied on.

The individuals relied on must have been under an employment contract; you cannot rely on contractors.

If you are a member of an entrepreneurial team, you may rely on the same evidence as one other team member for the jobs created. See paragraph 52 of Appendix A for more details.

If you were granted leave less than 12 months ago when you reach the 5 years to apply for settlement, the jobs must exist for at least the 12 months immediately before your application. As such, you may be able to rely on employment from your last grant of leave to make up the balance.

If you can prove this, you will be granted 20 points towards the necessary 75 points shown in Table 6 of Appendix A. The credibility of the jobs relied on to meet this may also be considered as part of the Home Office’s assessment under paragraph 245DF(f), which determines whether you have genuinely operated a business during your previous leave and intend to continue doing so.

Who is a ‘settled worker’?

The Immigration Rules define a ‘Settled worker’ as someone who is:

• a British citizen; or
• 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 (i.e. has pre-settled or settled status under the EU Settlement Scheme); 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.

The relevant period is whether the worker counted as settled for the duration of the months relied on for the job – it does not matter if they then lose their settled status following the end date of the job.

What counts as a full time job?

A full time job is defined as one that involves at least 30 hours of paid work per week. The jobs do not have to be different from each other. For example, you could rely on one job of a cleaner and a receptionist, or two waitresses.

Since the rules allow the requirement to be met by the ‘equivalent’ of a full time job, you may create one full time job by combining two or more part time jobs to reach the 30 hours. However, you are not allowed to use a job that is over 30 hours a week to count towards two jobs.

You are allowed to combine employees to create one job where:

• The employees being relied on have the same job title as each other and the job created e.g. they are all tutors.
• The job has existed for a minimum of 12 months, even if not all the individuals relied on were employed for a full 12 months themselves.

You should ensure when combining jobs that the total number of hours amounts to 1560 hours and that there is a 12 month period where the job has more than 30 hours per week worked. For example, you could rely on the following employees to create one job, which lasted from 01 January 2020 until 01 August 2021 since there is a 12 month period where the job has been 30 hours per week (from 1 July 2020 to 31 June 2021) and the total hours exceed 1560.

What about the impact of Covid-19 on my business?

If employees have been furloughed, those months can count towards the 12 month period, as long as they were paid at least 80% of their regular salary. You can also combine multiple jobs across different months, as long as they are equivalent to 2 full time jobs.

Other rules apply if you have previously benefited from the exception which allows Applicants to extend their leave as a Tier 1 Entrepreneur where they cannot meet the 12 months due to the impact of Covid-19 (please see the blog here for more information). To qualify for settlement in this situation, you must have created 2 full time jobs for the 12 month period in addition to the existing job creation requirement for settlement.

The Home Office guidance provides at page 38:

“For example, where [Applicants] are relying on having created 2 full time jobs for settled workers that existed for 12 months during their most recent grant of leave, they will also be required to show that 2 full time jobs existed for an additional 12 months.”

This essentially means that you must show the creation of 4 jobs.

What evidence is needed?

You must provide all of the following documents:

• printouts of Real Time Full Payment Submissions showing that the applicant complied with PAYE reporting requirements;
• payslips for each employee used to claim points, which cover the full period of employment for which points are being claimed;
• confirmation of the employment start date, job title, job description, hours paid per pay period and the hourly rate for each employee relied upon, including any changes to the same and the dates of those changes;
• copies of documents verifying that each employee has settled status in the UK e.g. a passport or biometric residence permit showing indefinite leave to remain.

There are further documents to show if when you created the jobs, you were self-employed, a director of a UK company or member of a partnership, or where they took over or joined a business. They can be found at paragraph 50(e)-(h).

Contact our Immigration Barristers

For expert advice regarding the requirements for leave in the UK in a business category, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.