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Shervar wrote: ↑

Thu Oct 08, 2020 7:00 pm

Hi Cullinan,

Thanks for your reply.

So in my case can I apply now? Or have to wait 12 months

Please clarify me if you don't mind.

Thanks

You no longer need to employ at least 2 people for 12 consecutive months. The 12 month period you’re required to employ someone for can be made up of multiple jobs across different months.

Time when your employees were furloughed will not count towards the 12 month period.

If you’ve not been able to employ staff for 12 months by the time your visa expires, you’ll be allowed to temporarily extend your stay to give you time to meet the requirement.

Shervar wrote: ↑

Sun Oct 11, 2020 4:03 pm

Is there any HO guidance available?

Shervar wrote: ↑

Mon Oct 12, 2020 12:03 am

I mean four employees on different jobs for six months.

You no longer need to employ at least 2 people for 12 consecutive months each. The 12 month period you are required to employ someone for can be made up of multiple jobs across different months.

This is helpful where employees have had to be laid off due to a downturn in business before they completed 12 months employment, as it allows you to rely on for example a receptionist working for 4 months combined with an analyst working for 8 months to equate to one job.

However, there has never been a requirement for 12 consecutive months of employment, as this would penalise Tier 1 Entrepreneurs whose employees resigned. It is permitted to rely on for example the employment of a receptionist who works for 4 months then leaves, then there is a gap whilst a replacement is hired and then another person works as a receptionist for 8 months. It has also always been possible to have multiple employees doing one full time job (for example, several part time waiting staff who together work 30 hours a week).

The ambit of this policy is not completely clear. We can state two propositions with reasonable confidence:

(a) Time furloughed will not count towards job creation (2nd paragraph);

(b) There is a possibility of a temporary extension of leave for those who have not met the “2 job” creation requirement (3rd paragraph).

But what is the meaning of the first paragraph? The first sentence indicates that there is no need to employ 2 people for 12 consecutive months each. But in truth the Immigration Rules already allow for this: for example Appendix A para 49(c) permits a job to “count even if it does not last 12 consecutive months (for example it lasts for 6 months in one year and 6 months the following year) provided that it is the same job.” So is this intended to be an introductory summary of the present position, just to put the reader in the right frame of mind, or does it herald a new way of assessing job creation which permits much more mix-and-match than hitherto? The phrase “You no longer need to employ” suggests an active change.

On balance it seems that the requirement at Appendix A para 49(e) is at the centre of the concession. The second sentence states that “multiple jobs” can be relied on “across different months”. So one could read this as a relaxation of the para 49(e) restriction that “Different jobs that have existed for less than 12 months cannot be combined together to make up a 12 month job.” There certainly seems to be no relaxation of the requirement that the job creation have extended into the last grant of leave; nor does there seem to be any change to the requirement that a job last for 30 hours a week before it can count.

Entrepreneurs who entered the route before 6 April 2014 and applied to extend their leave, or for Indefinite leave, before 6 April 2019 could rely on more flexible rules on job creation. Under transitional protection this class of applicant could satisfy the Entrepreneur visa job creation requirement by relying on one worker for 24 months, one worker for six months and one for eighteen months, four workers for six months each. Perhaps the first paragraph of the new concession represents a return to something resembling that more relaxed route. Though it is difficult to see that the very precise terms of the concession could be implied into the rather vague phrase “multiple jobs across different months”.

One thing’s for sure: we haven’t seen the last of the conundrums thrown up when advising Tier 1 Entrepreneurs.

It is important to note that the Home Office has only released very basic information in regard to the above provisions at present. It is possible that they may later refine the requirements and, in doing so, make them more restrictive. For example, it is possible that the Home Office may later state that the above provisions can only be relied upon where the applicant can demonstrate that the Job Creation requirement would have been met were it not for the impact the Covid-19 crisis had on their business. Accordingly, we would recommend that our clients take any decision over furloughing staff, etc. cautiously.