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ILR refused for T1E

Only for queries regarding Indefinite Leave to Remain (ILR). Please use the EU Settlement Scheme forum for queries about settled status under Appendix EU

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Mojojojo123
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ILR refused for T1E

Post by Mojojojo123 » Sat Apr 09, 2016 6:07 pm

Hello everyone. This is my first post on this board. This discussion fits my current situation too perfectly and I have not words for the emotions going through my head since yesterday.

I arrived in the UK on tier 1 ent in 2012. I do not know what entrepreneurship means to those holding the beakon of successful and real vs bad quality entrepreneurship and if my condition suffices or not but here is my story.

I opened a franchised restaurant in 2014 and was successful in creation of 10 full time jobs. I.e. managers/chefs/waiters/delivery drivers.

Majority of staff was on NMW which is the norm in the sector.
Investment exceeded 300K and in end of 2015 I applied for ILR.

The business made losses in the first year as the area chosen didnot end up being ideal but that IS entrepreneurship. You make money or you dont its just that. That is not the case now though.

Anyways application made end of nov. No policy guidance or immigration rule pointed out the notion that accelerated cannot mix match.

As it goes then... I have been rejected the ILR based on not creation of the 10 jobs. I would love to see a franchise being run with zero employee turnover in a year. That just not happens inthis sector.

Secondly I have not even been considered for extension of 2 more years which is even more puzzling. Do they comsider me to just leave the shop and try and run it from abroad which is imposible given the line of work.

I tried my best from day 1. Did everything by the books and did truly the best I could. To recieve a rejection on something they JUST put in the policy guidance is utterly disgraceful and I would love any of yours advice

Thank you

moongesture
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Re: New Tier 1 Entrepreneur Guidance

Post by moongesture » Sat Apr 09, 2016 6:14 pm

Mojojojo123 wrote: Secondly I have not even been considered for extension of 2 more years which is even more puzzling. Do they comsider me to just leave the shop and try and run it from abroad which is imposible given the line of work.
An extension application will be treat differently it will not be granted on same application if ILR refused

Have you applied for extension as well?

noajthan
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Re: ILR refused for T1E

Post by noajthan » Sat Apr 09, 2016 6:23 pm

To avoid confusion & jumbled responses, I have moved your question to its own thread (this one) in (the most) appropriate forum: ILR.

There is no need to post the same thing multiple times.
See multiple posts policy.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

O_Relly
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Re: ILR refused for T1E

Post by O_Relly » Sun Apr 10, 2016 3:48 pm

I take it you applied on the basis of Entrepreneur, accelerated route, and hence prove the job creation of 10 full time jobs for at least 12 months prior to application.

The T1E policy guidance states in pg52
171. The transitional arrangement does not apply to accelerated settlement applications where
you are applying on the basis of creating 10 jobs. The arrangement was introduced to ensure
consistency between the Immigration Rules and published guidance for extension
applications, and does not apply to applications for accelerated settlement.

172. The purpose of the accelerated settlement provision is to reward the most successful
entrepreneurs who have created the most benefit for the UK economy through significant job
creation.

173. Therefore, if you are applying for accelerated settlement on the basis of creating 10 jobs,
you may not combine the time periods together from different part time jobs, which have
existed for less than 12 months, to make the equivalent of a 12 month job.

174. So for example, if an employee had worked one month at full-time in one job, and another
employee had worked 11 months at full-time in another job, you could not combine these 2
jobs together to make the equivalent of one full-time job under accelerated settlement

because the jobs being combined have not existed for 12 months each. If you are applying
under accelerated settlement on the basis of 10 jobs, the creation of 10 individual jobs for 10
settled workers for 12 months is the minimum benchmark for meeting this threshold.
So it doesn't appear the problem is turnover of staff, as long as they fulfilled the same job for 12 continuous months. It appears an extension was also refused on the same basis since the eligibility criteria was not fulfilled.
Cheers,
OR

shanky
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Re: ILR refused for T1E

Post by shanky » Mon Apr 11, 2016 9:04 am

Hi, Bit confused does this means that in Tier 1 Ent 50 K - ILR (5 years) route - 2 jobs roles can be done by 4 different employees to qualify for ILR ?

I Entered Tier 1 Ent 50 K route in Oct 2012 got my two years extension in Nov 2015 due for ILR in Oct 2017


Thanks

S
S

O_Relly
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Re: ILR refused for T1E

Post by O_Relly » Mon Apr 11, 2016 12:58 pm

shanky wrote:Hi, Bit confused does this means that in Tier 1 Ent 50 K - ILR (5 years) route - 2 jobs roles can be done by 4 different employees to qualify for ILR ?

I Entered Tier 1 Ent 50 K route in Oct 2012 got my two years extension in Nov 2015 due for ILR in Oct 2017


Thanks

S
Yes. No problems for two employees to have worked in 1 job as long the job was valid and you were paying out salaries the entire 12 months. So for example Employee A worked for 8 months and then left and then Employee B worked for 4 months is perfectly acceptable. See points 164 and 167 in pg 50 of the policy guidance. Also see Annex F in pg 85.
Cheers,
OR

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zimba
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Re: ILR refused for T1E

Post by zimba » Mon Apr 11, 2016 12:59 pm

shanky wrote:Hi, Bit confused does this means that in Tier 1 Ent 50 K - ILR (5 years) route - 2 jobs roles can be done by 4 different employees to qualify for ILR ?

I Entered Tier 1 Ent 50 K route in Oct 2012 got my two years extension in Nov 2015 due for ILR in Oct 2017


Thanks

S
Under Transitional Arrangements, yes. You still can hire 4 people (even in parallel for 6 months) for your extension or 5 year ILR.
Advice is given based on my personal research and experience only. Do NOT contact me via private message for immigration advice

Mojojojo123
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Re: ILR refused for T1E

Post by Mojojojo123 » Wed Apr 13, 2016 9:09 am

O_Relly wrote:I take it you applied on the basis of Entrepreneur, accelerated route, and hence prove the job creation of 10 full time jobs for at least 12 months prior to application.

The T1E policy guidance states in pg52
171. The transitional arrangement does not apply to accelerated settlement applications where
you are applying on the basis of creating 10 jobs. The arrangement was introduced to ensure
consistency between the Immigration Rules and published guidance for extension
applications, and does not apply to applications for accelerated settlement.

172. The purpose of the accelerated settlement provision is to reward the most successful
entrepreneurs who have created the most benefit for the UK economy through significant job
creation.

173. Therefore, if you are applying for accelerated settlement on the basis of creating 10 jobs,
you may not combine the time periods together from different part time jobs, which have
existed for less than 12 months, to make the equivalent of a 12 month job.

174. So for example, if an employee had worked one month at full-time in one job, and another
employee had worked 11 months at full-time in another job, you could not combine these 2
jobs together to make the equivalent of one full-time job under accelerated settlement

because the jobs being combined have not existed for 12 months each. If you are applying
under accelerated settlement on the basis of 10 jobs, the creation of 10 individual jobs for 10
settled workers for 12 months is the minimum benchmark for meeting this threshold.
So it doesn't appear the problem is turnover of staff, as long as they fulfilled the same job for 12 continuous months. It appears an extension was also refused on the same basis since the eligibility criteria was not fulfilled.

Hello O_Relly

Yes indeed I did. Thank you for the response. But my issue is that the latest policy guidance that had arrived till the day I applied for the ILR did not mention this. It mentioned that part time jobs can be taken forward to fulltime placements given the transitional arrangements. I did read that paragraph in the april 2016 policy guidance as well but how can they expect us to follow something clarified in the future?

noajthan wrote:To avoid confusion & jumbled responses, I have moved your question to its own thread (this one) in (the most) appropriate forum: ILR.

There is no need to post the same thing multiple times.
See multiple posts policy.
Thank you Noajthan, Im sorry for the rookie mistake.

O_Relly
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Re: ILR refused for T1E

Post by O_Relly » Wed Apr 13, 2016 5:12 pm

Are you saying they stated in an earlier policy guidance around November 2015 time-frame that applicants in accelerated route were covered under transitional arrangements ?

It is unlikely they would make such a big change and quietly sweep it under the carpet. To me it looks like this was always the case for accelerated route applicants.
Cheers,
OR

geriatrix
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Re: ILR refused for T1E

Post by geriatrix » Thu Apr 14, 2016 6:25 am

Tier 1 (Entrepreneur) policy guidance version 11/2015
Read 167 first. Then read 156 - 166, and 205.

Though not stated so explicitly (as in the current guidance) but the jist is the same, IMHO ..
Life isn't fair, but you can be!

confused90
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Re: ILR refused for T1E

Post by confused90 » Thu Apr 14, 2016 10:52 am

geriatrix wrote:Tier 1 (Entrepreneur) policy guidance version 11/2015
Read 167 first. Then read 156 - 166, and 205.

Though not stated so explicitly (as in the current guidance) but the jist is the same, IMHO ..

Thank you, Geriatrix.

As per 167. If you are applying under accelerated ILR you must demonstrate that you have created a total of 10 full time positions for at least 10 people.The criteria and requirements to evidence the 10 full time positions are the same as for an extension application.

As per Pre 6 April 2014 transitional arrangement
165. If you successfully applied to enter the route before 6 April 2014, you may continue to employ:
 one worker for 24 months
 one worker for 6 months and one for 18 months
 4 workers for 6 months each

and 156. If you have established new businesses, those businesses must have, between them, created the equivalent of two extra full-time paid jobs for at least two people who are settled in the UK and those jobs must have existed for at least 12 months each.

167 and 165 co-exsist, and that's how most accelerated ILR applicants have applied on this basis.

156 contradicts 165 for Pre 6 April 2014 arrangement, what should be done in this scenario?

geriatrix
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Re: ILR refused for T1E

Post by geriatrix » Fri Apr 15, 2016 12:25 pm

156 applies to both pre and post 06-Apr-14 applicants. For pre 06-Apr-14 applicants, 156 can be fulfilled either in the manner explained in 165 or as explained in 156. For post 06-Apr-14 applicants, 165 doesn't apply.

So, where is the contradiction? Or am I missing something?
Life isn't fair, but you can be!

confused90
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Re: ILR refused for T1E

Post by confused90 » Fri Apr 15, 2016 1:19 pm

geriatrix wrote:156 applies to both pre and post 06-Apr-14 applicants. For pre 06-Apr-14 applicants, 156 can be fulfilled either in the manner explained in 165 or as explained in 156. For post 06-Apr-14 applicants, 165 doesn't apply.

So, where is the contradiction? Or am I missing something?
That is precisely the contradiction, that for pre 06-Apr-14 applicants, 156 can be fulfilled either in the manner explained in 165 or as explained in 156.

The OP has fulfilled 156 using the pre 06-Apr-14 guidance point 165 and applied for the accelerated ILR under 167 but was refused that 156 wasn't fulfilled.

The new guide explicitly states that the pre 06-Apr-14 guidance point 165 cannot be used for accelerated ILR points, but the previous guide contradicts it by stating the criteria and requirements to evidence the 10 full time positions are the same as for an extension application under point 167.

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Re: ILR refused for T1E

Post by geriatrix » Fri Apr 15, 2016 2:39 pm

Oops! Got your point now (having read the current Tier 1 E guidance "carefully" - which I had not when I had posted earlier). Apologies!!

Then one needs to ascertain when this clarification (accelerated route to settlement cannot use transitional arrangement) was announced in statement of changes to immigration rules or published in the guidance. Anyone who applied for settlement before this clarification was announced / published should not be subject to this new "constraint".

IMHO ...
Life isn't fair, but you can be!

confused90
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Re: ILR refused for T1E

Post by confused90 » Fri Apr 15, 2016 4:09 pm

geriatrix wrote:Oops! Got your point now (having read the current Tier 1 E guidance "carefully" - which I had not when I had posted earlier). Apologies!!

Then one needs to ascertain when this clarification (accelerated route to settlement cannot use transitional arrangement) was announced in statement of changes to immigration rules or published in the guidance. Anyone who applied for settlement before this clarification was announced / published should not be subject to this new "constraint".

IMHO ...
No problem, Geriatrix... I know it's quite a lot to read and absorb :D

The 'clarification' was made in the guidance published on 06 April 2016, but people who applied in December/January are getting rejected on the basis that it's not applicable for accelerated ILR.

I have submitted my application for the same route in Mid-March, and not too hopeful of the result looking at the recent refusals.

helpingperson
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Re: ILR refused for T1E

Post by helpingperson » Fri Apr 15, 2016 5:35 pm

geriatrix,

First of all thank you and it is good to see a senior getting involved into this very important matter.

Where can we check when last statement of changes immigration rules published and if it included these changes?


Is there any case example, where HO have implemented rules in this way overnight?

geriatrix
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Re: ILR refused for T1E

Post by geriatrix » Sat Apr 16, 2016 3:04 pm

This is a clarification about (erstwhile hidden / not publicly disclosed or perhaps even a change in) intention not a change in immigration rules, so will not see a mention in "statement of changes to the immigration rules". The argument can be that how can a Tier 1 E migrant imagine a hidden / not publicly disclosed intention unless it is clearly spelt out. Once it is announced, anyone applying after such announcement is required to follow that intention ... but anyone who has applied before the announcement cannot be subject to " intention(s) unknown to the target audience" that UKV&I failed to mention or clarify anywhere at the time of such application.

The most recent statement of changes in immigration rules is HC877 which does include some changes to Tier 1 E immigration rules.

Having done a quick read through, here's my take on "job creation" requirements:
Point 3 and 4 under Table 6, clause 49 and clause 50 in Appendix A of the immigration rules explain "job creation" requirements. Table 6 has had no changes but both clause(s) 49 and 50 have been amended, as mentioned in HC877. That said, the only differences in the immigration rules differentiating normal route to settlement (5 years) from accelerated route (3 years) is either £5 million or 10 full-time jobs. Nothing - other than clause 49 and 50 - in the immigration rules to explain what sort of permutations and combinations are accepted either for "2 full-time jobs" or "10 full-time jobs". Understandably so, these are left to be explained in the policy guidance.


Be mindful that my understanding of Tier 1 E rules and policy guidance is as good as someone who has read only little bits of both and only since last 24 hours!!
Life isn't fair, but you can be!

confused90
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Re: ILR refused for T1E

Post by confused90 » Sun Apr 17, 2016 4:12 pm

Thank you for your view, geriatrix. Highly appreciated.

I'm already considering JR in the case my accelerated ILR is refused.

Awaiting updates from the OP regarding this.

Thanks

Mojojojo123
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Re: ILR refused for T1E

Post by Mojojojo123 » Tue Apr 26, 2016 5:02 pm

Hello everyone really appreciate reading the long responses from you guys. Indeed it has somewhat given me a bit more confidence.

Its just been crazy for me lately. Anyways as for progress at the moment. After consultation with Solicitors, applied AR at the moment. Not hoping for alot from it though. As they have not considered me even for an extension, which I am told is usually done if a person does not qualify for the accelerated ILR, I will be filing for the extension as the next step so that I do not lose all ground if even the JR goes south. Then the extension application and the JR process will go parallel to each other.

Another discrepancy located in the refusal was that according to them my dependant got the leave to enter on the day she actually arrived. According to them her application for tier 1 dependant was filed a few days after the 9th July 2012, just so that her stay needs to be 5 years in the UK before being able to apply for ILR as dependant ( unlike the 2 years for those who applied before the 9th July 2012. Firstly we applied for the visas together secondly I have an email confirming that our applications left for the british high commission on the 6th of July :/

confused90
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Re: ILR refused for T1E

Post by confused90 » Mon May 09, 2016 7:13 pm

Mojojojo123 wrote:Hello everyone really appreciate reading the long responses from you guys. Indeed it has somewhat given me a bit more confidence.

Its just been crazy for me lately. Anyways as for progress at the moment. After consultation with Solicitors, applied AR at the moment. Not hoping for alot from it though. As they have not considered me even for an extension, which I am told is usually done if a person does not qualify for the accelerated ILR, I will be filing for the extension as the next step so that I do not lose all ground if even the JR goes south. Then the extension application and the JR process will go parallel to each other.

Another discrepancy located in the refusal was that according to them my dependant got the leave to enter on the day she actually arrived. According to them her application for tier 1 dependant was filed a few days after the 9th July 2012, just so that her stay needs to be 5 years in the UK before being able to apply for ILR as dependant ( unlike the 2 years for those who applied before the 9th July 2012. Firstly we applied for the visas together secondly I have an email confirming that our applications left for the british high commission on the 6th of July :/
Hello,

Any updates regarding AR yet? Please update.

Thanks

confused90
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Re: ILR refused for T1E

Post by confused90 » Sun May 29, 2016 10:08 pm

geriatrix wrote:This is a clarification about (erstwhile hidden / not publicly disclosed or perhaps even a change in) intention not a change in immigration rules, so will not see a mention in "statement of changes to the immigration rules". The argument can be that how can a Tier 1 E migrant imagine a hidden / not publicly disclosed intention unless it is clearly spelt out. Once it is announced, anyone applying after such announcement is required to follow that intention ... but anyone who has applied before the announcement cannot be subject to " intention(s) unknown to the target audience" that UKV&I failed to mention or clarify anywhere at the time of such application.

The most recent statement of changes in immigration rules is HC877 which does include some changes to Tier 1 E immigration rules.

Having done a quick read through, here's my take on "job creation" requirements:
Point 3 and 4 under Table 6, clause 49 and clause 50 in Appendix A of the immigration rules explain "job creation" requirements. Table 6 has had no changes but both clause(s) 49 and 50 have been amended, as mentioned in HC877. That said, the only differences in the immigration rules differentiating normal route to settlement (5 years) from accelerated route (3 years) is either £5 million or 10 full-time jobs. Nothing - other than clause 49 and 50 - in the immigration rules to explain what sort of permutations and combinations are accepted either for "2 full-time jobs" or "10 full-time jobs". Understandably so, these are left to be explained in the policy guidance.


Be mindful that my understanding of Tier 1 E rules and policy guidance is as good as someone who has read only little bits of both and only since last 24 hours!!

Hi Geriatric,

Should we appeal to JR? Do you consider that we have enough ground for the case to be based around?

As you know, it's a lengthy and expensive process... just want to make sure before stepping into it?

Thanks

confused90
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Re: ILR refused for T1E

Post by confused90 » Sat Jun 11, 2016 11:25 am

Any updates?

confused90
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Re: ILR refused for T1E

Post by confused90 » Wed Jun 15, 2016 12:32 pm

My ILR application has also been refused for the same reasons as the OP.

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Re: ILR refused for T1E

Post by buntyz » Mon Jul 11, 2016 9:55 am

my accelarated route application is refused for the same reason

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