Today, 11 January 2018, new Immigration Rules are brought into place with a large number of changes to the wording of the Tier 1 (Entrepreneur) rules. The Rules for Entrepreneurs have been restructured in their entirety, in what we -- and presumably the Home Office -- hope will make them easier to apply correctly.
Some of the biggest changes in the wording apply to the Job Creation requirement affecting those applying for an extension of stay and for ILR. This requirement is one of the most complex within the rules and it is always important that any application is checked carefully against the requirements in force at the relevant time. This post will examine some of the key changes and what implications these may have for applicants.
For the first time in a long history of writing these posts, there are some positive changes for applicants.
- Applicants can apply to extend where jobs have not existed for 12 months since their last grant of leave, providing the job has existed for 12 months before the date of the application.
This might apply where their extension application has taken a long time to be processed by the Home Office, such that when they come to apply for ILR after five years in the category, they have not had a full 12 month period since their last grant of leave. In the previous rules, the person would have had to wait until a full year had passed, but now will be able to apply at an earlier stage, subject to meeting other requirements at that time. This is a welcome change, particularly for individuals who have had their extension applications delayed by the Home Office. Now this no longer has to delay achieving settlement in the UK.
What does not appear to be addressed, is how this will affect applicants who wish to rely on the transitional arrangement (see below) of one job existing for 24 months and whether they could apply before the 24 month period. This can be difficult because leave following an extension will be granted for exactly two years, meaning that anyone who wishes to rely on one employee for 2 years needs to ensure that the position is filled for the full two years and then make their application right at the end of their leave.
- The transitional arrangement allowing some individuals to rely on four workers for six months each, one for 18 months and one for six months or one employee for 24 months is now brought into the rules and will only apply until 6 April 2019.
This was never previously in the Rules and only existed in guidance. In April 2014 the guidance was amended so that this provision would only apply to individuals who had applied to enter the Tier 1 (Entrepreneur) category before 6 April 2014. There doesn’t seem to be any technical change to how this will apply from the old wording in the guidance. It’s not surprising that this has now been brought into the rules, only perhaps surprising that it has taken so long to be included. The fact that it will only apply until 6 April 2019 is new, however the Home Office view is presumably everyone that could take advantage of this route should be settled by then. This is unlikely to be true, but it does give applicants over a year’s notice so that they can make alternative plans in advance of the end of this arrangement.
- Applicants will be asked to confirm the paid hours of the employees in jobs they created as well as the hourly rate, to reduce the possibility of calculation errors.
The Home Office seem to frequently change the information that they want when trying to calculate the jobs created. Hopefully this change will make it easier for the Home Office to calculate hours correctly.
- An amendment is being made to the requirement relating to Real Time Full Payment Submissions, to reflect the fact that these documents do not state the employment start date.
As any Entrepreneur who has been through this process will know, the FPS come in a variety of formats depending on the payroll and it can sometimes be difficult to get all the information required by the Home Office on the same layout. This is a welcome update.
- An amendment is being made to the requirements relating to job creation for persons who join existing businesses, so that the required evidence relates to the period before the applicant joined the business, rather than the period before jobs were created.
This is a helpful clarification, as there was previously a disparity between what the Rules required, a net increase from when the Applicant joined, and the evidence required to prove it, which related to the time before the jobs relied upon were created. This should make it easier to demonstrate the net increase in jobs.
These changes are accompanied by general changes in the wording and this affects the wording of some of the letters required in support of the application.
Contact our Immigration Barristers
If you would like advice about how you will be affected by changes to the Immigration Rules, contact our immigration barristers on 0203 617 9173 or firstname.lastname@example.org.