Your Guide To The Tier 1 Entrepreneur Job Creation Requirement

When you come to make your extension or indefinite leave to remain application in the Tier 1 Entrepreneur category, you will need to satisfy a job creation requirement.  The Immigration Rules require that you must have created the equivalent of at least two new full time jobs for persons settled in the UK. These jobs must have existed for at least 12 months during the period for which your latest leave as a Tier 1 Entrepreneur was granted.  

If you are applying for indefinite leave to remain after 5 years in the Tier 1 Entrepreneur route, but 12 months have not passed since the grant of your extension, you can rely on the employment in the 12 months before the date of your application, covering the full extension period, plus the balance needed to make up the rest of the 12 months.

This is our guide to help that you meet the job creation requirement, when you come to make your application.  

If I entered the Tier 1 Entrepreneur route after 6 April 2014, how many people do I need to employ and for how long in order to satisfy the job creation requirement?

If you entered the Tier 1 Entrepreneur route after 6 April 2014, you must create two separate jobs that each exist for 12 full months in order to satisfy the job creation requirement.

What if I entered the Tier 1 Entrepreneur route before 6 April 2014?

Then you are lucky, as the job creation requirement transitional arrangements apply to you. In order to meet the job creation requirement, you have the ability to employ:

• one worker for 24 months, or
• one worker for 6 months and one for 18 months, or
• 4 workers for 6 months each.

However, you must make your extension or settlement application before 6 April 2019.

What if I am a self-employed Entrepreneur?

You must employ the workers directly.

What if I am a Director of a business or Member of a Partnership?

In order to satisfy the job creation requirement the company of which you are a Director/Member must have created two new posts or a net increase of two posts.

What if I am a team member of an entrepreneurial team?

Both you and your team member, if you have both invested in the same business, can use the same evidence for creating employment. However, if you have not invested in the same business, you may not use the same evidence of job creation.

If you are not the Sole Partner or Director of your business, you must confirm the dates of any other Tier 1 Entrepreneur migrants that became a Director, and whether you and any other team member will be sharing job creation evidence.

What does ‘full time’ mean?

Paragraph 49 of Appendix A to the Immigration Rules explains that:

• A full time job is one involving at least 30 hours of paid work per week
• “The equivalent of” a full time job means two or more part time jobs that add up to 30 hours per week, if each of the jobs exists for at least 12 months. However, one full time job of more than 30 hours of work per week will not count as more than one full time job.

Tier 1 Entrepreneur Guidance published by the Home Office gives the following as acceptable employment: “The hours of workers in 2 part-time jobs can be combined to add up to 30 hours a week or more and form the equivalent of one full-time post, as long as the 2 part time jobs exist for 12 months. For example, if one employee worked 20 hours in a part-time job and another employee worked 10 hours in another part-time job and if they have both been employed for at least 12 months, they can be combined to one full-time job. If the applicant is combining jobs in this way, they must make it clear in their application which employees are being used.”

Note that in order to satisfy the job creation requirement the employment must comply with the Working Time Regulations 1988.

What are the requirements for the job?

A single job need not have existed for 12 consecutive months in order for the job creation requirement to be satisfied. For example, if one person is hired as a sales assistant for 6 months in one year, and then the next year, a different person is hired as a sales assistant, so long as it is the same job, these can be combined. There can be a gap, for example, if one worker leaves, before the position is filled. Of course, only periods during which workers are employed in a post will be considered.

However, note that different job roles, e.g. sales assistant and sales manager, cannot be combined together to make up a 12 month period.

The jobs upon which you rely do not need to exist at the date of application.

You will need to confirm the paid hours of your employees in the jobs, as well as their hourly rate.

Can I rely on more than one business to meet the job creation requirement?

There is nothing specifically in the Rules preventing reliance on multiple businesses. However, you will need to meet the evidential requirements for each business and employee. For example, if you are a director of the business, you must provide evidence to show that you have been a Director throughout the period of employment relied upon.

What does ‘employ’ mean?

Individuals must be employed by your business, rather than working as contractors or on a self-employed basis. You can only count full-time and part-time workers, who are under an employment contract with the business.

Who is a ‘settled worker’ for the purpose of the job creation requirement?

Only jobs given to people with settled status in the UK qualify for the award of points. The Tier 1 Entrepreneur Guidance states that for the purposes of the route, the following persons are considered “settled workers”:

• Nationals of the UK;
• British overseas territories citizens – except those from sovereign base areas in Cyprus ;
• Commonwealth citizens who were allowed to enter or remain in the UK on the basis that a grandparent was born here;
• Persons settled in the UK within the meaning of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002);
• EEA Nationals (note Swiss nationals not exercising treaty rights, and Croatian nationals who require worker authorisation are not included).

This list does not include all of the people who will have the right to work in the UK, so be sure that you check on an individual’s circumstances before you rely on their employment in your application. Simply employing someone legally will not mean that you meet the requirements of this rule.

What is a ‘new’ business?

Paragraph 46 of Appendix A, states that a business will only be considered new if “it was established by the applicant no earlier than 12 months (or 24 months if the applicant was previously granted leave as a Tier 1 (Graduate Entrepreneur) Migrant) before the date of the application which led to the applicant’s first grant of leave as a Tier 1 (Entrepreneur) Migrant.”

Therefore, if your business is “existing” rather than “new”, the job creation requirement will be a little bit more complicated. You will need to demonstrate, with evidence, the number of people who were employed by your business prior to you joining. You will then need to show that since you joined, you have created a net increase of 2 employees. You will need payroll information and a letter from your accountant to verify the job creation.

What evidence will I need to provide to satisfy the job creation requirement?

All of the above will need to be properly evidenced when you make your extension application. The specified evidential requirements for job creation can be one of the most tricky aspects of a Tier 1 Entrepreneur application.

The evidence that you will need to provide will depend on the circumstances of your business. You will need to keep complete employment records including records of payment of wages/salary, payslips, report of PAYE income tax to the HMRC, documents for start-date, number of hours paid, hourly rates (which must meet national minimum wage), and documents to show that each employee relied upon is a settled worker. If you have taken over or joined an existing business there are further documents required to show the net increase in employees.

Contact our Entrepreneur Immigration Barristers

For further professional advice or assistance with preparing an extension or indefinite leave to remain application as a Tier 1 Entrepreneur migrant, or challenging a refusal decision, contact our immigration barristers on 0203 617 9173 or via our enquiry form.