Tier 1 Entrepreneurs: Applying for Accelerated Settlement after 3 Years
One of the biggest advantages of the Tier 1 Entrepreneur category, is that it is possible to get accelerated settlement (Indefinite Leave to Remain) in the UK after spending just three years in the category in the UK. There are two different ways to do this: either increasing the jobs in the company by 10 full time people, or by increasing the business turnover by £5 million. That is no small feat in just three years so anyone planning to do this might want to think ahead and plan their strategy even before they are first granted leave in the UK. This article will look at what the rules require of individuals who are looking to settle on this basis.
Accelerated Settlement: Creation of 10 jobs
Table 6 of Appendix A to the immigration rules specifies that an applicant can either create 10 jobs in a new business or increase the number of jobs in an existing business by 10.
Each job has to exist for 12 months since the last grant of leave, or where the last grant of leave was less than 12 months ago, they must have existed for the 12 months prior to the application.
As with a normal extension or settlement application the jobs must be at least 30 hours per week and paid at least at the level of minimum wage appropriate for the person filling the role depending on their age.
Accelerated Settlement: £5 million Turnover
In order to demonstrate that the business has had a £5 million turnover, the immigration rules specify documents that must be provided. For a new business this includes accounts that confirm that the gross income resulting from the business’ activities and that this reached at least £5 million.
Where the Entrepreneur has joined an existing business, accounts showing the gross income from business activity for the 3 year period immediately before the date on which the applicant became involved with the business, as well as a letter from the accountant providing an explanation of the applicant’s status in the business.
The guidance provides no confirmation of how the net increase will be calculated in practice, what is meant by ‘status in the business’ or what is considered the date the applicant became involved. Many entrepreneurs are involved in businesses and registered as directors before they make their Entrepreneur application, while some may be directors at some time before they are actively involved. The guidance provides no explanation as to what should be considered the relevant date in these kinds of cases, which could leave some uncertainty for Entrepreneur applicants deciding between making an extension or a settlement application.
Other Requirements for Accelerated ILR as a Tier 1 Entrepreneur
Entrepreneurs should ensure that they are in a position to meet all requirements of the immigration rules, and not just the additional criteria to settle. This includes demonstrating that you have been a Director or Self Employed at the relevant times, that your business is properly registered in the UK and that you meet the English Language Requirement, as well as having passed the Life in the UK test.
What if I am not sure?
It is a matter for you if you want to try to make an application, where you are not certain if you meet the requirements, however, you should be aware that if you apply for settlement but do not meet the rules, the Home Office will not then go on to consider whether you meet the extension requirements. Instead the Home Office will simply refuse your application.
If you receive a refusal, you will have the option to challenge it by way of Administrative review, or may wish to submit a fresh application. If your leave has expired or would have expired but for the provision of s3C of the Immigration Act, then you should make this fresh application within 14 days of receiving your refusal or following an Administrative Review. You could then make an extension application, if you find that you are not in fact able to meet the accelerated settlement requirements. However, you should bear in mind that the Home Office will hold your passport throughout this process and you will be unable to travel. The application fees are also very high and you would not receive a refund for the first application.
Anyone, who is considering this route may wish to seek professional legal advice to ensure that they chose the correct application on their first try.
There is no provision for a Spouse to apply for accelerated settlement. The Spouse of an Entrepreneur must spend a period of five years in the category before they apply to settle. Children do not need to spend five years, but are only apply for settlement when both parents settle or apply to settle, unless one parent has sole responsibility. Family members are therefore likely to need to extend their limited leave for a further two years and then apply for settlement after five years.
Contact Our Immigration Barristers
If you would like advice or assistance with making a Tier 1 Entrepreneur accelerated settlement application, contact Gillian McCall. Alternatively, you can reach our immigration barristers on 0203 617 9173 or complete our enquiry form.