Entrepreneur-New Guidance-HO-Challenge-ILR-Accelerate Route

[helpingperson]

I don't know where to start but it is about HO new guidance which they changed this week.

We like many other candidates have been following old guidance, regarding employment and investment, etc. Now all in a sudden HO has brought new guidance which is implemented on all applicant regardless when they got initial visa.

Previous guidance did not say you can not combine two part time which are less than year, or you need 10 jobs which continue for 12 months each and so on.

Instead it was as below, flexible, allowing combination of part times, no criteria for 10 jobs as such as in new guidance.


I copy Confused90 message here:

According to the December 2015 guidance, which can be found at https://www.gov.uk/government/uploads/s ... _0_EXT.pdf


Page 80, last paragraph states;

Accelerated settlement
If applying under accelerated ILR the applicant must demonstrate that they 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.

Hence, transitional arrangement does apply to the accelerated ILR.

Pre-6 April 2014 transitional arrangement
Tier 1 (Entrepreneur) migrants who successfully applied to enter the route before 6 April
2014, and still meet the requirements when they apply for extensions 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



Now, with new guidance, many here have either applied for accelerated route or close to this time, it is not practical to change past to meet this requirement as in new guidance.

I need to know:

Can HO implement any new guidance on existing visa holders in this way which is significantly different than previous guidance? Any example please where they have done so in past on any category i.e. Tier 4, Tier 2, Tier 1?

There will be some who would jump to support HO so for them, if we can prove we followed HO guidance for 3 years, met all requirements, now in last minute we don't meet requirements as per new guidance, we simply can not, no one can at this time of their visa, what we do about this?

We paid taxes, injected money, followed all rules, in last month changing guidance and expecting us to meet its requirements, is impossible.


Based on your comments, references, past history, I and many here would plan about future move so please be reasonable and helpful.

I want to take this to court if possible and ask Home Office to tell me/guide/ to achieve /meet this new guidance due to time of visa we are.

Is there any case anyone know where Home Office guidance has been challenged?

I thought Home Office always allowed previous visa holders to continue under old rules/guidance but this is not the case here.


I await to see any useful comments.

[zimba]

1. HO can change the rules and requirements anything they wish and you should comply with them. Most significant rules changes usually are introduced in such a way that it is generally fair to people already affected and that is why for example transitional arrangements exist

2. Tier 1E guide is not a legal document that can be challenged in the court of law. If your application is unfairly decided, you should be able to take the decision to JR court.

3. As I said it before, ILR is a privilege given by secretary of state and you do not have any right to be given one. You need to demonstrate that you deserve one, not that you must simply get one irrespective of your circumstances.

4. You probably forgot that when you signed your previous visa form, you already accepted that the changes could affect you in future. This is literally mentioned on the section 6 (visa declarations) on the form when you signed it:

I am aware that the rules and requirements for applications may change in the future and that I
should not assume the current rules and requirements will continue to apply.

5. I suspect that instead of making correct investment and hiring decisions that are right for your business, you simply made decisions to facilitate your ILR, probably in a low pay low skill sector with a lot of part time employees. I personally think that it is fair for HO to demand at least 12 full time jobs for accelerated ILR, given that the other condition of having £5m+ turnover is quite difficult to achieve.

[helpingperson]

74 Views and Only Zimba has been kind enough to comment, share his views. Its like some ghosts or dummies monitoring this forum/thread.

[cappachino]

I don't know where to start but it is about HO new guidance which they changed this week.

We like many other candidates have been following old guidance, regarding employment and investment, etc. Now all in a sudden HO has brought new guidance which is implemented on all applicant regardless when they got initial visa.

Previous guidance did not say you can not combine two part time which are less than year, or you need 10 jobs which continue for 12 months each and so on.

Instead it was as below, flexible, allowing combination of part times, no criteria for 10 jobs as such as in new guidance.


I copy Confused90 message here:

According to the December 2015 guidance, which can be found at https://www.gov.uk/government/uploads/s ... _0_EXT.pdf


Page 80, last paragraph states;

Accelerated settlement
If applying under accelerated ILR the applicant must demonstrate that they 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.

Hence, transitional arrangement does apply to the accelerated ILR.

Pre-6 April 2014 transitional arrangement
Tier 1 (Entrepreneur) migrants who successfully applied to enter the route before 6 April
2014, and still meet the requirements when they apply for extensions 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



Now, with new guidance, many here have either applied for accelerated route or close to this time, it is not practical to change past to meet this requirement as in new guidance.

I need to know:

Can HO implement any new guidance on existing visa holders in this way which is significantly different than previous guidance? Any example please where they have done so in past on any category i.e. Tier 4, Tier 2, Tier 1?

There will be some who would jump to support HO so for them, if we can prove we followed HO guidance for 3 years, met all requirements, now in last minute we don't meet requirements as per new guidance, we simply can not, no one can at this time of their visa, what we do about this?

We paid taxes, injected money, followed all rules, in last month changing guidance and expecting us to meet its requirements, is impossible.


Based on your comments, references, past history, I and many here would plan about future move so please be reasonable and helpful.

I want to take this to court if possible and ask Home Office to tell me/guide/ to achieve /meet this new guidance due to time of visa we are.

Is there any case anyone know where Home Office guidance has been challenged?

I thought Home Office always allowed previous visa holders to continue under old rules/guidance but this is not the case here.


I await to see any useful comments.

They have been wise, what they have done is given this point under clarification. If this would be a new rule they would have had a transitional arrangement.
Most people on Tier 1 visa are more concerned on making sure they meet the requirements hence would qualify to continue their life in the UK (especially if they have kids who in 3 years are set with the life they have here ). In my view it is very difficult to concentrate on a start up business and to make it profitable while making sure you are following all the requirements set by HO.
I for one am unable to compete in my sector as my competitors make changes to their business as per requirement and profitability. whereas I have to make sure that I meet all the requirements of HO and this takes precedent to my profitability.

[Mrchaany]

So many reservation and objections
Because ukvi now have control and command they have snatched appeal rights and now day to day changing guidance and rule for technical and profound rules and regulations in immigration

As some users of this forum rised issue to
Challenge ukvi and hire barrister to restore old
Rules for visa holder

But
Who will do This big question

[seasky]

I was considering accelerated route based on transitional rules. But you have to choose your battles (My employees are high value, many multiples of the min wage). This is a battle I most probably won't participate in and just wait longer to my ILR.

The (obvious) point of the accelerated route was to reward overperforming Entrepreneurs. Is your business as such or are you paying mostly min wage

As far as fairness goes, I employ less than 10 people for multiple years with very high salary someone else hires 10 people for a year at min wage, who should get the acceleration?

[seasky]

They have been wise, what they have done is given this point under clarification. If this would be a new rule they would have had a transitional arrangement.
Most people on Tier 1 visa are more concerned on making sure they meet the requirements hence would qualify to continue their life in the UK (especially if they have kids who in 3 years are set with the life they have here ). In my view it is very difficult to concentrate on a start up business and to make it profitable while making sure you are following all the requirements set by HO.
I for one am unable to compete in my sector as my competitors make changes to their business as per requirement and profitability. whereas I have to make sure that I meet all the requirements of HO and this takes precedent to my profitability.

Really it is that hard to have 24 months of employment at min wage (what is that £20k COST?) to register as a director and to have some maintenance fees? What kind of business did you form?? From this forum it seems to me many don't take entrepreneurship seriously and just used the t1E route thinking it is the easist way in to the UK

[confused90]

Hello all,

I have submitted my accelerated ILR application on the 17th of March, before the new guidance was issued and things about the transitional employment 'clarified'.

I have recently read about the applicants who applied using the same route in December, and got refusal on the basis that transitional employment creation doesn't apply for the accelerated ILR.

As posted in the OP, the guidance states that the requirements and criteria are the same as extension applicants... and if refused, I shall appeal against the decision on the basis that the 'guidance' which was based to guide an applicant wasn't properly worded and the employment creation thing clarified.

As Zimba said that the guidance cannot be held in the court of law, and if JR is decided against my favour I shall not be applying for an extension instead and leaving the country.

I could run my company from abroad too, without the hassle of following the UKBA's rules or 'guidance' on how I should be running my business, and as stated above by another member that it doesn't help in being competitive against other businesses of the same nature.

[friend87]

Changes in this route are not understandable and people who argue that this is something everyone signed previously are forgetting that this is not a simple Tier 4 category where a student hardly spend GBP 9000 or little more & can left alone any time.

In Tier 1 (e) many applicants are in their mid 30’s or 40’s and most of them had left their professions and businesses and even their spouse left their professions, while families with kids arrived here thinking positively. People has spend / invested their life savings and person like me sold his every asset when I came here in early 2013. It will not something that they will change law and expect people to sit in time machine and go back to rectify the issue they “NOW” believe must be corrected. I seen people got rejected on silly things and even when CW don’t understand the simple balance sheet.

[cappachino]

Changes in this route are not understandable and people who argue that this is something everyone signed previously are forgetting that this is not a simple Tier 4 category where a student hardly spend GBP 9000 or little more & can left alone any time.

In Tier 1 (e) many applicants are in their mid 30’s or 40’s and most of them had left their professions and businesses and even their spouse left their professions, while families with kids arrived here thinking positively. People has spend / invested their life savings and person like me sold his every asset when I came here in early 2013. It will not something that they will change law and expect people to sit in time machine and go back to rectify the issue they “NOW” believe must be corrected. I seen people got rejected on silly things and even when CW don’t understand the simple balance sheet.

I completely agree
I for one have invested over 400000
Employees were given Prefrence on who complied to the HO regulations rather than their capability.
Had some amazing applications where they were allowed to work as dependants etc but did not hire them and gave Prefrence to those who had a European or British passport.
Guess what have 8 employees and would meet the requirement as 4 them are for over 2 years but as per new clarification I just ended up wasting my effort and money.

[friend87]

For people who are in favor of new rule I would like to ask a question that now they change the absence period & include visa grant date in it. My entry clearance was granted on 18 December and my passport was returned on 9th of Jan so how come I could present my self in UK when my passport was actually with local embassy?
Remember people who are applying for ILR could be rejected for even a single day if their continuous residency is broken up during any 12 months from specified date!!!!!!!

Secondly see the comment cappachino and other mentioned above. These are very valid, you all seeing what is now happening with TOEIC where those people who have given that "SELT" genuinely were among those who have been removed / refused entries. How can they sit in time machine and correct that error?

[seasky]

I completely agree
I for one have invested over 400000
Employees were given Prefrence on who complied to the HO regulations rather than their capability.
Had some amazing applications where they were allowed to work as dependants etc but did not hire them and gave Prefrence to those who had a European or British passport.
Guess what have 8 employees and would meet the requirement as 4 them are for over 2 years but as per new clarification I just ended up wasting my effort and money.

I don't understand. You invested £400k, was expecting to get accelerated ILR and then what? Close down your business? All you have to do is continue running your business for 2 more years.

Also of course there will be cases of certain non settled people who are better than certain settled people. But this is the UK, it is full of settled people, just hire among them. It is not logical that that was a significant downside to running your business

[confused90]

I completely agree
I for one have invested over 400000
Employees were given Prefrence on who complied to the HO regulations rather than their capability.
Had some amazing applications where they were allowed to work as dependants etc but did not hire them and gave Prefrence to those who had a European or British passport.
Guess what have 8 employees and would meet the requirement as 4 them are for over 2 years but as per new clarification I just ended up wasting my effort and money.

I don't understand. You invested £400k, was expecting to get accelerated ILR and then what? Close down your business? All you have to do is continue running your business for 2 more years.

Also of course there will be cases of certain non settled people who are better than certain settled people. But this is the UK, it is full of settled people, just hire among them. It is not logical that that was a significant downside to running your business

I agree with the point made, and the positive outlook that things shall make sense in 2 years time.

The issue is, if the HO can 'clarify' rules every now and then who knows what the rules shall be in 2 years time?

Also, with an investment of £400K which is a very huge amount there is no guarantee of the ILR being granted either now or in 2 years time... there seems no point in risking the funds just to follow the HO's rules and 'guidance'.

A business can also be run in the UK, without the person actually being here. I know of a competitor who runs his business in the UK, while being in the USA... so if the business is genuine and making you a profit, I personally see no point of risking things further and instead running the business without the HO's rules while also being competitive, saving taxes (if you plan on being a resident of a non-taxation country) among many other things.

At the end of the day, it's just down to the decision you take... and whatever that decision may be, I wish you good luck with it

[noajthan]

This report may help people understand what T1E is all about - direct from the HOrse's mouth:
https://www.gov.uk/government/uploads/s ... eneurs.pdf

It may help explain some of the fine-tuning and recent changes that have been made that seem to be of concern to some members of the ImmigrationBoards family.

Some random extracts - I will leave the remaining 198 pages of the report as an exercise for the interested reader ...

4.24 Analysis carried out by the MAC to link Tier 1 (Entrepreneur) migrants with Companies House records, which is discussed in full in Chapter 5, also suggested that Tier 1 (Entrepreneur) migrants were predominantly operating in low-skilled industries.

Businesses established simply to meet requirements of the route
4.25 We also received limited evidence of Tier 1 (Entrepreneur) migrants who set up shell companies in which they place a minimum qualifying investment, without any underlying economic activity. However, although on the face of it the business has created two jobs, the employees are not involved in any purposeful business activity but are simply paid a salary for the purposes of meeting the extension and settlement criteria. In these cases, there is little or no underlying economic activity being carried out by the business.

Then there are several paras discussing lack of visa extensions and/or switching also failure rates in visa extensions.

4.31 We also note that the most recent intelligence assessment from the Home Office indicates that migrants switching in-country from Tier 1 (Post-Study Work) are using generic or ambiguous company names to disguise the fact that their companies are engaged in low-skilled activities. For example, minicab drivers were found to be using businesses whose names suggested that they were involved in marketing and accountancy

4.38 Of course, there will be a certain amount of failure associated with any entrepreneur visa route. Entrepreneurship is risky and, hence, many genuine entrepreneurs will fail. However, the low extension rates together with the low evidence of tax activity suggest that there is a reasonable amount of non-compliance

4.49 The issue for the Government is to determine exactly what the objectives of this route are, in order to decide which activities to continue to facilitate under the route. We suggest that, ideally, the emphasis should be placed on ensuring that there is an increase in numbers at the top end of the spectrum, whilst curtailing some of the activity at the bottom

5.14 The UK’s entrepreneur visa routes are in place to enable high value migrants to move to the UK, for the purpose of investing their funds and expertise in new or existing businesses. The objective is that this activity will benefit UK residents directly through job creation and tax revenue, ...

[noajthan]

The official report (posted above) clearly shows how the land lies and the trajectory in UK policy terms.

T1E is clearly not just another visa - it all boils down to what entrepreneurship is all about.
And in the real world that has little to do with getting a visa.

Here's a view on what it takes to be an entrepreneur...

... a lot of people [don't] understand the true meaning of the word entrepreneur.

My go-to online dictionary describes an entrepreneur as “a person who starts a business and is willing to risk loss in order to make money” or “one who organizes, manages, and assumes the risks of a business or enterprise.” Note the common keywords business and risk. If there’s no real business or risk, you’re not an entrepreneur.

...

So instead of getting a job and building a career, large numbers of people are finding ever-more creative ways of hiding the fact that they’re unemployed, all the while telling themselves it’s OK since they’re entrepreneurs building their brand, platform, presence, following, or some other such nonsense.

Look, you probably don’t want to hear this but if I don’t tell you, who will? Entrepreneur is not a job. Leader is not a job. Social media guru is not a job. If there’s no real expertise, no real product, no real business, no real risk, and no real prospect for return on investment, you’re not working. And you’re not an entrepreneur, either.

If you want to be an entrepreneur someday, here’s an equation you should print out and attach to your mirror, computer screen, smartphone, or wherever your eyeballs spend most of their time:

Entrepreneur + Capital = Products + Customers = Business.

Don’t take my word for it. Look at every successful entrepreneur on the planet. That’s the equation that got them there.

Ref https://www.entrepreneur.com/article/244565

[friend87]

Ideally you are giving a theoretical view of entrepreneur route. In reality the Liberty an entrepreneur need was not defined since day one. You must agree with my statement that practically there are so many restrictions applied by HO which has nothing to do with actual definition you have quoted above.

[noajthan]

Ideally you are giving a theoretical view of entrepreneur route. In reality the Liberty an entrepreneur need was not defined since day one. You must agree with my statement that practically there are so many restrictions applied by HO which has nothing to do with actual definition you have quoted above.

I shared information and views of interest that are freely available.

My point is it should be clear to all how the land lies and where government policy is going here. It's easy enough to find this vital information.

Entrepreneurs are fundamentally risk takers and live or die by informed decisions - I've been there, done it myself. I've also been a migrant worker in foreign lands on foreign visas.
My migration plans ended when the dot com bubble burst - so I'm not saying its easy when you play in the big league. I know its not.

So risk analysis and risk assessment should be on the radar at all times.
And with a Plan B in back pocket too.

If someone is over extended, risk-averse and with nothing in reserve then maybe a high-risk strategy with all eggs in one basket is not for them.

[seasky]

I agree with the point made, and the positive outlook that things shall make sense in 2 years time.

The issue is, if the HO can 'clarify' rules every now and then who knows what the rules shall be in 2 years time?

Also, with an investment of £400K which is a very huge amount there is no guarantee of the ILR being granted either now or in 2 years time... there seems no point in risking the funds just to follow the HO's rules and 'guidance'.

A business can also be run in the UK, without the person actually being here. I know of a competitor who runs his business in the UK, while being in the USA... so if the business is genuine and making you a profit, I personally see no point of risking things further and instead running the business without the HO's rules while also being competitive, saving taxes (if you plan on being a resident of a non-taxation country) among many other things.

At the end of the day, it's just down to the decision you take... and whatever that decision may be, I wish you good luck with it

I don't think the overall rules have or vastly changed. Most additions (e.g. genuine entrepreneurs test) is because to much abuse of the route. I see the risk to genuine entrepreneurs to be low.

All these losers that just use T1E because they have no other way to enter (and they don't really care about entrepreneurship) just ruin it for the real entrepreneurs. It is hard for government/bureaucrats to define details of serious entrepreneurs so they have to set a bit of rules that is easier to decipher. But it would have been better if they had a bit of discretion. Example a strong entrepreneur who has made real jobs and more importantly a real 'value' business (technology startup and not a take-away restaurant for example) and a week before s/he extends suddenly the bank mistakenly moves money from the account. If there was discretion the HO would clearly see it as a mistake and and give points for maintenance.

Again the lack of discretion is because of so much abuse. (in fact discretion has been given to say 'no' based on genuine entrepreneurs test, even if there is full points but not to say 'yes' if there is a minor issue)

[helpingperson]

Hello

Reminder:

Aim of the discussion is to find if Home Office has issued such guidance in the past which was implemented overnight even to existing visa holders of that categories?

Are there any cases in history, when someone have proved they qualified under old guidance but not under new guidance and they went in the court to challenge this?

I am expecting this discussion to be useful for all those have stayed on this visa, spent their time, their hard earned money and now being told that goal post has been changed.

Once again we all can see there is no lack of self-claimed Home Office barristers on this forum, self-claimed genuine entrepreneurs but seriously have a self-analysis and keep your support for Home Office and self-praise to yourself. And if you are really over the moon, then let's take it personal and get you audited to see how genuine you are before that stop talking this about other entrepreneurs as you have no information but you ill-mindedness, at least then you will have this certificate that you are utterly genuine and can raise finger on others. If not, then let Home Office run the immigration, let HMRC dicide who is genuine, and you just give helpful advice to immigrants who need it or don't intrude at all, save your time for something else.

One more thing is to those who are saying ILR is a privilege and those who followed HO guidance for 3 years and now should just carry on, it is for you to really understand people who spend 10 years switching from different visas to get ILR, people who marry EU national then they get ILR, people who are on Tier 2 then they get ILR after set time, people who are on Entrepreneur have £5million turn over, they get ILR, people who invest in millions, get ILR under Investor visa, people who have 10 full time employees for 12 months as per New Guidance, they get ILR, and so on.........

So message/point here is: Is it only Tier 1 Entrepreneur who are being reminded that ILR is privilege, being told carry on without ILR, being told it is normal if Home Office has changed guidance which disqualifies you and you can not do anything about it?


Those who have 10 full time employees for 12 months as per new guidance, will Home Office not give them ILR? I DOUBT Big time.

It was/is Home Office who attracted immigrants all over the world to come here, invest, create job and in return you get ILR.

Please tell me a couple of examples of any immigration categories in this country, where visa holders are not expecting/aiming for ILR.

ILR means a lot to majority of us, it offers you stability, it gives you sense of achievement, chance to grow up as person and a business, helps your future plans. When you have invested you life saving and you don't know how Home Office next guidance/rules will affect you, this hurts you as a person and a business. You don't even know whether you will here or not. You want to have freedom to just focus on your business, without any interference from HO, without fear of losing everything just because you are not Citizen here.



It is unfortunate this forum is full of immigrants some managed to get permanent and some are battling to achieve same, people forget realities, it is easy to lecture someone when you are not affected, when you are not on visa anymore.

Who knows how many times Home Office will issue guidance, how many times they will change the rules, one thing we all know it is getting extermely difficult for immigrants to settle in this country and will continue to be even worse.


Once again to entrepreneur who are affected by this new guidance. Let's get together and see what can be done.

[cappachino]

Well said helping person.

[helpingperson]

For all Entrepreneurs who are applying/applied for ILR on the basis of 10 jobs creation accelerated route.

This New Guidance is completely unfair and impossible for us to meet due to the fact we have already consumed our initial leave and can not change past. We all know we meet all requirements on the basis of previous guidance which we have followed.

I think we should all get together and take this matter to court asap.

I have already started another thread where details for this can be found as below:
Entrepreneur-New Guidance-HO-Challenge-ILR-Accelerate Route

I look forward to any interested and serious Entrepreneurs and their views on this.

No irrelevant parties, no irrelevant comments, no negative comments, save your time for another thread.

Thank you.

[cappachino]

For all Entrepreneurs who are applying/applied for ILR on the basis of 10 jobs creation accelerated route.

This New Guidance is completely unfair and impossible for us to meet due to the fact we have already consumed our initial leave and can not change past. We all know we meet all requirements on the basis of previous guidance which we have followed.

I think we should all get together and take this matter to court asap.

I have already started another thread where details for this can be found as below:
Entrepreneur-New Guidance-HO-Challenge-ILR-Accelerate Route

I look forward to any interested and serious Entrepreneurs and their views on this.

No irrelevant parties, no irrelevant comments, no negative comments, save your time for another thread.

Thank you.

Excellent initiative.
Count me in.
We can all get together and go for a class action suit.
The way I see it the amount of money we will spend for the lawyers fees will be less than what we will spend for the extension application amount. (also the time we will save)
Lets do this asap.

[noajthan]

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[noajthan]

Worth noting that in UK, class actions or CAT cases are (as per my understanding) currently limited to cases brought under competition law.

Even if such a case can be brought it's worth noting:

... the usual “loser pays” rule is retained. If a claim is unsuccessful, the claimants in opt-in proceedings will usually be liable for the defendants’ costs, and the class representative bears the costs risk.

And it's a little unclear how this initiative sits with this other one:
http://www.immigrationboards.com/uk-tie ... 02567.html

[helpingperson]

Worth noting that in UK, class actions or CAT cases are (as per my understanding) currently limited to cases brought under competition law.

Even if such a case can be brought it's worth noting:

... the usual “loser pays” rule is retained. If a claim is unsuccessful, the claimants in opt-in proceedings will usually be liable for the defendants’ costs, and the class representative bears the costs risk.

And it's a little unclear how this initiative sits with this other one:
http://www.immigrationboards.com/uk-tie ... 02567.html

Thank you Noajthan. Much appreciated.

Not sure what else we can do.