Retrospective changes to settlement requirements

[Liszt]

Good day all,

I'm almost five years into a Tier 1 entrepreneur VISA after receiving an extension in Feb 2014 (therefore had obviously fulfilled the requirements for extension i.e. investment, job creation etc.). I had recently consulted a solicitor re: getting everything lined up for my settlement application which I intended on submitting late Jan 2016.

I was subsequently informed that in addition to the "genuine entrepreneur" test, there was now a new, retrospective job creation requirement. Instead of only having to create two years worth of employment in the first grant of leave, this now applied to the second. Furthermore, it looks like the jobs need to be the same jobs or two new jobs which have existed for two years. If I've read this correctly, it would be very problematic because it seems to imply that even if you've created the required total "employment", changing roles and people leaving / starting again would break this rule (and anyone running a business knows that things change frequently!).

There is a transitional arrangement in the guidance (https://www.gov.uk/government/uploads/s ... 9_2015.pdf) which makes provision for a slightly more flexible make-up of the employment: 1x worker for 24 months, 4 workers for 6 months and 1x worker for six plus 1x worker for 18 months. This is very vague because it's not clear whether it requires exactly these breakdowns (which would be absurd?) or whether it's allowing flexibility regarding the number of workers and duration of employment in general (i.e. these are just examples to illustrate).

I'm struggling to clarify the points above and therefore would appreciate it if any one with any experience or information on this (particularly settlement or extension applications) could shed light on the following questions:
1) This change applies retrospectively therefore is obviously grossly unfair (for example, I converted workers to contractors during my extension period as it suited my business - I obviously wouldn't have done this if the rules at the time forbade it). While I know that things have changed re: appeal rights, is there no way to challenge this in court in a manner similar to the HSMP forum action in 2007 / 8?
2) Are the transitional arrangement "alternatives" merely guidelines and is it the case that it just needs to be two years of employment in total that are created (as it was with the original grant of leave) OR does it literally need to fit with one of the examples?
3) Has anyone applied for settlement / extension successfully WITHOUT fulfilling the additional job creation requirement for their second / most recent grant of leave or by fulfilling it where to total = two years as opposed to the specific examples provided?

Any information would be much appreciated. I will of course be happy to post updates whatever I can find out elsewhere because I'm sure this will be affecting a number of people!

On a related note, I would also strongly advise those seeking to come to the UK to set-up businesses against it given that the HO is anything but fair and reasonable. Unless you want to settle in the UK specifically, there are many other countries with far more lenient requirements and a much more transparent process. Personally I wish I had not chosen the UK as this process has been a nightmare despite me fulfilling the requirements and establishing two successful businesses. It seems that the risk with doing this in the UK is that you can come here, build a life and a business only to have the HO decide to tear it apart...

Many thanks,
Liszt

[julesxander]

Hi,

Since you have done your extension, It does not apply to you, because you have already proved job creation at that time.

please see the internal process guidance below, page 140:

https://www.gov.uk/government/uploads/s ... _0_EXT.pdf

[10020132]

Disagreed

If you have read guidance clearly it says without any ambiguity that you have to continue with employment criteria for ILR.
Secondly, the place where it says that you need to create 1 full time person for 24 months and so on, it clearly says there that any combination like this will work

So best friend will be guidance notes

[ishfaqsangra]

Guidance clearly indicates that jobs creation or maintenance is clearly required for another 2 year or 1 year(if 2 employees)

[Liszt]

Disagreed

If you have read guidance clearly it says without any ambiguity that you have to continue with employment criteria for ILR.
Secondly, the place where it says that you need to create 1 full time person for 24 months and so on, it clearly says there that any combination like this will work

So best friend will be guidance notes

Agree with the disagreement re: not having to show job creation (although this was my original understanding therefore I thought it good to raise this point so that others are aware!). However, I don't agree with your second point "any combination" will work. While it would be rational to assume that this is the case, my reading of the latest rules and guidance is that it literally is that two job positions must have lasted for 12 months each (absurd because you could fulfill the original requirement for extension with 1 person for 24 months and obviously business roles change).

Original the guidance notes gave different combinations which would have supported your position - however this appears to have been removed, along with transitional measures. Originally I thought I'd just missed something but this was confirmed for me by an immigration barrister. Another solicitor has advised that they have had no problems with odd combinations of employment but that the Home Office insists that it is down to the discretion of the case worker.

While it's difficult to believe that the HO can be this ridiculous, I'm not sure how else to read this. I would appreciate any opinions or recent experiences on this because it all seems to be rather uncertain!

[10020132]

This transitional arrangement is applicable to all those who applied to All those Who applied before April 2014 and since you are applying for indefinite leave it means you have got your Visa before april 14 and hence this does not affect you I hope it clears up

[Liszt]

Many thanks - that would be a major relief. However, it looks like the transitional arrangement has been removed. If it's not too much hassle, could you provide me with the link you've been using to access it?