Tier 1 Entrepreneur refusal - Job creation matter

[HMG]

Hi,

I received a refusal letter from the home office today. I am posting this so others can make sure not to be in the same situation I am in. Simply I created two full time jobs 30 hours a week for 12 months however this had been rejected from the HO. the reason is, they made their calculations weekly and not monthly.

Explanation about my case as below

First job: Was just one employee 12 months and worked 140 hours a month but they considered only 130 hours for each employee. this employee still working to date

Second job was for Two employees and no gap between them. The second emplyee is working for the company to date
First employee 120 hours for 4 months
Second employee 125 hours for 8 months


The CW counted this as 3040 hours in total while they require 3120 hours

As I said, it seems they use the weekly method and not monthly otherwise my employees worked more than the requirements. The weekly method is as below

2 employees * 30 hours * 52 weeks =3120 hours

Again i am posting this because I do not want anyone to be in the same situation in the future.

Of course if anyone can advice me this would be kind of you

All the best for everyone

[marcnath]

Hi,

I received a refusal letter from the home office today. I am posting this so others can make sure not to be in the same situation I am in. Simply I created two full time jobs 30 hours a week for 12 months however this had been rejected from the HO. the reason is, they made their calculations weekly and not monthly.

Explanation about my case as below

First job: Was just one employee 12 months and worked 140 hours a month but they considered only 130 hours for each employee. this employee still working to date

Second job was for Two employees and no gap between them. The second emplyee is working for the company to date
First employee 120 hours for 4 months
Second employee 125 hours for 8 months


The CW counted this as 3040 hours in total while they require 3120 hours

As I said, it seems they use the weekly method and not monthly otherwise my employees worked more than the requirements. The weekly method is as below

2 employees * 30 hours * 52 weeks =3120 hours

Again i am posting this because I do not want anyone to be in the same situation in the future.

Of course if anyone can advice me this would be kind of you

All the best for everyone

Thanks for posting.


This just reinforces something that has been repeatedly discussed in this forum.

The immigration rules is very clear and only specifies 30 hrs/week. Both the rules and guidance set out that if a job is more than 30 hrs/week, only 30 hrs will be taken into account.

Unfortunately for you, the CW decision is correct as per the immigration rules.

However, both the guidance and the Job table in the application form state that a FT is considered to be 120 hrs/month.

That should give you a good argument for your AR as to why you should be given points for the job creation.

Submit your AR, quoting the exact phrases from the Guidance and Application form. Hopefully, the decision will be overturned. All the best.

Are you pre-April 2014 or post ?

[HMG]

Thanks for the advice, I will do as you recommended.

Yes I applied for the initial entrepreneur visa before 1st April 2014. I have another company and I recruit some employees for a short period which I will try to use to redeem the gap they talked about. Also the two employees are still working after the 12 months i used for the application.

What I am really unhappy about is, I applied for the extension on 26th of February 2017 and they needed around a year to say this which is really upsetting.

In the guideline it is not clear that they will consider 30 hours only as they mentioned minimum and not maximum. As you said is a point I can use.
in my AR

Thanks for your nice wishes

[tarun_shreeji]

Can you please update your full timeline

You face interview ?

[miumiuuk]

agreed, quoting the exact phrases from the Guidance and Application form.wish you would win your AR and keep us updating. HO seems working to a different standard. I presume some applicants who with 120hrs per month have been approved their extensions.

[marcnath]

In the guideline it is not clear that they will consider 30 hours only as they mentioned minimum and not maximum. As you said is a point I can use. in my AR

I think it is clear that 30 hours is also the maximum they take into account. The wording is "The hours of workers in 2 part-time jobs can be combined to add up to 30 hours a week or more and form the equivalent of one full-time job"

The "or more" is clear. So, you are unlikely to succeed in getting any credit for the 140 hrs/week. That will remain at 130.

The point to argue is in Pg 91 of the guidance where it says "We consider full-time to be 30 hours per week / 120 hours per month" and the same text in Pg 46 of the application form.
You can use that to argue that the other jobs should be considered full time.

[HMG]

Can you please update your full timeline

You face interview ?

Submit application 26th February 2017

Biometric letter and exceptional complexity letter within around one to two months from the application

Interview 12th Septmegbe3r 2017

Refusal 4th of January 2018 but received the letter from the solicitor today 9th of January

[HMG]

agreed, quoting the exact phrases from the Guidance and Application form.wish you would win your AR and keep us updating. HO seems working to a different standard. I presume some applicants who with 120hrs per month have been approved their extensions.

Yes you are right it seems they use different criteria as in page 91 is clear that 120 hours for 12 months is a full time. Thanks for your nice wishes

[HMG]

In the guideline it is not clear that they will consider 30 hours only as they mentioned minimum and not maximum. As you said is a point I can use. in my AR

I think it is clear that 30 hours is also the maximum they take into account. The wording is "The hours of workers in 2 part-time jobs can be combined to add up to 30 hours a week or more and form the equivalent of one full-time job"

The "or more" is clear. So, you are unlikely to succeed in getting any credit for the 140 hrs/week. That will remain at 130.

The point to argue is in Pg 91 of the guidance where it says "We consider full-time to be 30 hours per week / 120 hours per month" and the same text in Pg 46 of the application form.
You can use that to argue that the other jobs should be considered full time.

To me 'or more' means I can combine more than 30 hours, however they understood it the same you said, anyway is too late now to argue what does it refer too exactly.
Yes I will quote the phrase in page 91 as you recommnded. Thanks

[zimba]

Please provide exact dates for each employee worked. The monthly or weekly calculation should arrive at the same number based on your claims

[mohsensari]

Did you have interview in your office?

[HMG]

Please provide exact dates for each employee worked. The monthly or weekly calculation should arrive at the same number based on your claims

First job: first payment on 22nd of March 2016 to 22nd of February 2017
Second job: first payment on 22nd of March 2016 to 22nd of February 2017

First job: 140 hours a month
Second job: 120 a month for 4 months then the remain is 125 hours a month

They are still working but I meant by 'to' to the date I submit my application on 26th of February 2017

The main difference between my method and theirs is, I use monthly calculations while they use weekly. The second point is, they consider for each employee just 130 hours per month and deduct the extra hours and not combine them to the total hours.

Do you think I can add any of the hours they worked after I submit the application

Also I have an employ worked for another company from 1/10/2015 to 8/4/2016 and he used to work 96 hours a month

[HMG]

Did you have interview in your office?

Yes

[marcnath]

Please provide exact dates for each employee worked. The monthly or weekly calculation should arrive at the same number based on your claims

First job: first payment on 22nd of March 2016 to 22nd of February 2017
Second job: first payment on 22nd of March 2016 to 22nd of February 2017

First job: 140 hours a month
Second job: 120 a month for 4 months then the remain is 125 hours a month

They are still working but I meant by 'to' to the date I submit my application on 26th of February 2017

The main difference between my method and theirs is, I use monthly calculations while they use weekly. The second point is, they consider for each employee just 130 hours per month and deduct the extra hours and not combine them to the total hours.

Do you think I can add any of the hours they worked after I submit the application

Also I have an employ worked for another company from 1/10/2015 to 8/4/2016 and he used to work 96 hours a month

You can’t add any more during the AR process. So your best bet is they accept the 120 hrs being full time.
If that does not work then you can do a fresh application when you can use the employment after your first application also. You can also use the additional employee from the other company in your new application

[HMG]

Please provide exact dates for each employee worked. The monthly or weekly calculation should arrive at the same number based on your claims

First job: first payment on 22nd of March 2016 to 22nd of February 2017
Second job: first payment on 22nd of March 2016 to 22nd of February 2017

First job: 140 hours a month
Second job: 120 a month for 4 months then the remain is 125 hours a month

They are still working but I meant by 'to' to the date I submit my application on 26th of February 2017

The main difference between my method and theirs is, I use monthly calculations while they use weekly. The second point is, they consider for each employee just 130 hours per month and deduct the extra hours and not combine them to the total hours.

Do you think I can add any of the hours they worked after I submit the application

Also I have an employ worked for another company from 1/10/2015 to 8/4/2016 and he used to work 96 hours a month

You can’t add any more during the AR process. So your best bet is they accept the 120 hrs being full time.
If that does not work then you can do a fresh application when you can use the employment after your first application also. You can also use the additional employee from the other company in your new application

Thanks. I already sent the employment details, payslips and so on of the employees of the other company but did not consider them for the creation of 2 full time jobs as I thought I do not need them. I got an advice to write in my AR that, I submit the required evidences and they suppose to consider them or contact me to ask before the decision. Do not know if this is right or wrong.

Also, regarding using the employment after the first application, I consulted someone who said I can not use this as this is not within the three years of first visa. So, if you are sure about that I can use it so please kindly confirm

[marcnath]

If you have sent those details then yes, you can argue in the AR that it should have been taken into account under the evidential flexibility rules -245 AA if I remember correctly.
As to whether you can use employment in your 3C period it is grey but there are people who have successfully been given points for investment and job creation in the 3C period

[mohsensari]

Did you have interview in your office?

Yes

I’m wondering why HO are interviewing while they want to refuse on the documents and points basis.

[miumiuuk]

Did you have interview in your office?

Yes

I’m wondering why HO are interviewing while they want to refuse on the documents and points basis.

It reveals HO did not even look through documents before they invited ppl to interview

[HMG]

If you have sent those details then yes, you can argue in the AR that it should have been taken into account under the evidential flexibility rules -245 AA if I remember correctly.
As to whether you can use employment in your 3C period it is grey but there are people who have successfully been given points for investment and job creation in the 3C period

I will add this to the AR, let's see what they will say. thanks for the advice about the evidential flexibility rule

[HMG]

Did you have interview in your office?

Yes

I’m wondering why HO are interviewing while they want to refuse on the documents and points basis.

It reveals HO did not even look through documents before they invited ppl to interview

So do I

[HMG]

Yes

I’m wondering why HO are interviewing while they want to refuse on the documents and points basis.

It reveals HO did not even look through documents before they invited ppl to interview

So do I

Honestly I feel now their aim is to reject for the seek of rejection otherwise they would send that decision long time ago and not after 11 months, I would say they tried all what they can to refuse and nothing else.

[zimba]

How did you calculate your hours ?? Your workers worked for 22 months only !!

[seasky]

How did you calculate your hours ?? Your workers worked for 22 months only !!

He wrote "1st Payment" not sure why bu maybe they started a month earlier being paid end of said month

[seasky]

Another pointer. While not part of AR per se does not hurt to mention in covering letter and evidence that both roles have been continuing.

CWs are people and the overall picture does influence them (from experience)

[HMG]

How did you calculate your hours ?? Your workers worked for 22 months only !!

one employee 140 hours a month and the other one is 125 hours a month, and this is for 12 months each