Tier 1 Entreprenuer refused based on Job Creation. Urgent help!

[EEE]

I applied for my renewal of Tier 1 Entrepreneur Visa in Aug 2017.

I had no interview but a reply was sent 23.04.2018.

I was refused based on the fact that the second job i created was not created within 12 months. The second job was created Oct 2016 but it was only for 6 months. I created another full time for 4 months full time and 2 part time for 2 months.

I was told i could not combine the jobs if it was created less than 12 months before my application and all they could count was 10 months and i still had two months unaccounted for.

I have 10 days to put in an administrative review and I need urgent help on how to proceed.

Any advise or help will be much appreciated.

[teddybear79]

start dates , end dates , job tiitle needed to help you

[marcnath]

I applied for my renewal of Tier 1 Entrepreneur Visa in Aug 2017.

I had no interview but a reply was sent 23.04.2018.

I was refused based on the fact that the second job i created was not created within 12 months. The second job was created Oct 2016 but it was only for 6 months. I created another full time for 4 months full time and 2 part time for 2 months.

I was told i could not combine the jobs if it was created less than 12 months before my application and all they could count was 10 months and i still had two months unaccounted for.

I have 10 days to put in an administrative review and I need urgent help on how to proceed.

Any advise or help will be much appreciated.

That is a new argument. They must have provided the relevant immigration rule clause. Can you copy the actual text of the refusal ?
When did you make the initial application ? Was it before 6 April 2014 ?

[EEE]

Thanks everyone and please pardon the lack of details in my initial post.

First job was created Jun 2016 and employee worked till June 2017(full time)
Second job was created in Oct 2016 and employee worked for 6 months till March 2017(full time)
The third job created was the same title as the second and It was created in April 2017 and employee worked for 4 months till July 2017(full time)
The fourth job created was the same as the second and third. It was part time and employees (2 partime) worked from April 2017 to July 2017 20 hrs each.

My accountant and i assumed the hours stipulated by the guidance policy was what was important but the home office is not calculating the part time hours because they do no fall in line with the 12 month job creation before my application in Aug 2017.

Also my company was created May 2014 and my first application was done in June 2014. So the policy created on or before April 2014, will not apply to me.

Please let me know what other information you would like.
Many Thanks

[marcnath]

Thanks everyone and please pardon the lack of details in my initial post.

First job was created Jun 2016 and employee worked till June 2017(full time)
Second job was created in Oct 2016 and employee worked for 6 months till March 2017(full time)
The third job created was the same title as the second and It was created in April 2017 and employee worked for 4 months till July 2017(full time)
The fourth job created was the same as the second and third. It was part time and employees (2 partime) worked from April 2017 to July 2017 20 hrs each.

My accountant and i assumed the hours stipulated by the guidance policy was what was important but the home office is not calculating the part time hours because they do no fall in line with the 12 month job creation before my application in Aug 2017.

Also my company was created May 2014 and my first application was done in June 2014. So the policy created on or before April 2014, will not apply to me.

Please let me know what other information you would like.
Many Thanks

Unfortunately the CW's decision is correct for a post April 2014 applicant though you seem to have wrongly summarised it in your initial post (which is why it is important to provide the exact wording in the refusal letter).
As the guidance says:
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, as long as the 2 part-time jobs exist for 12 months.

That appears to be the basis on which it was rejected.

You can try to argue in the AR that there is no such clause in the immigration rules itself. The immigration rules only specifies that the applicant has created the equivalent of at least 2 new full time jobs for settled workers and you have done that.

Provided that you filled in the Job Table correctly (employee 2, 3, 4 & 5) all indicated under the same job, you do stand a chance with AR, though it is quite small.

Since your application, have you continued to have employees ? Are the full time or part time ?

[zimba]

You can try to argue in the AR that there is no such clause in the immigration rules itself. The immigration rules only specifies that the applicant has created the equivalent of at least 2 new full time jobs for settled workers and you have done that.

That is not correct. The Appendix A paragraph 49 makes this clear:

49.
(a) A full time job is one involving at least 30 hours of paid work per week.
(b) “The equivalent of” a full time job means two or more part time jobs that add up to 30 hours per week, if each of the jobs exist for at least 12 months. However, one full time job of more than 30 hours of work per week will not count as more than one full time job.
(c) A job may 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.
(d) The jobs need not exist on the date of application, provided that they existed for at least 12 months as specified in Table 5 (row 4) and Table 6 (row 3).
(e) Different jobs that have existed for less than 12 months cannot be combined together to make up a 12 month job. The only exception is where the applicant successfully applied as a Tier 1 (Entrepreneur) Migrant before 6 April 2014, has had continuous leave as a Tier 1 (Entrepreneur) Migrant since then, and the date of application for entry clearance, leave to remain or indefinite leave to remain is before 6 April 2019.
(f) If jobs are being combined the employees being relied upon must be clearly identified by the applicant in their application.

[marcnath]

Thanks @zimba, I stand corrected. I did think it was in Appendix A but could not locate it to confirm this morning.

Thanks to your quote, I find it tucked under Business Activity ! which misled me

That makes the argument very different.

It is now even more critical how the Job Table was filled.

As mentioned before, if you have filled Job 2 with all the four employees, then you can argue that:

1. 49 (b) only talks about combining two jobs. But your case is two EMPLOYEES fulfilling ONE full-time job.

2. There is nothing in the immigration rules that says one job cannot be FULFILLED by two or more employees.

[kaps84]

OP's issue is only with Job 2, where he wants to utilize 4 different people/employees.

6 months(full time) + 4 months (full time) + 2 months (2 part-timers). 10 months are OK (and already accepted by HO), but how 2 months will be fulfilled without a full timer? (when two part-timers less than 12 months can't be utilized at all after 6 April 2014).

I think @EEE just needs to cover those 2 months with a full-timer (30 hrs/week for 8 weeks) in a fresh application. (AR can be utilized to buy some more time).

Please correct me, if I am wrong. Not sure if any other permutation can also work for OP?

[marcnath]

OP's issue is only with Job 2, where he wants to utilize 4 different people/employees.

6 months(full time) + 4 months (full time) + 2 months (2 part-timers). 10 months are OK (and already accepted by HO), but how 2 months will be fulfilled without a full timer? (when two part-timers less than 12 months can't be utilized at all after 6 April 2014).

The highlighted part is incorrect. Nowhere in the immigration rules is that stated.

The immigration rules always talks about JOBS, not EMPLOYEES.

Nowhere does it say that 1 JOB cannot be done by two part-time EMPLOYEES. But obviously those employees should be working at the same time so that the total weekly hours add up to 30 for each week that is claimed.

In fact, there was a case reported here where the extension was initially refused because two full time employees had the same job title. The CW only gave points for one job. Thankfully it was overturned in AR but that is the reason I always encourage people to enter some difference in the Job Title, even if it Sales Manager 1 and Sales Manager 2.

But if it is different part-time JOBS (does not have to be the same title or happening at the same time), then yes it needs to be 12 months each.

I think @EEE just needs to cover those 2 months with a full-timer (30 hrs/week for 8 weeks) in a fresh application. (AR can be utilized to buy some more time).

Yes, that is the alternative and hence my additional questions as to what the employee status is.

But if OP has not had any employees since the application, for example, just hiring someone now to meet the requirement may bring a challenge on the genuine entrepreneur test.

[kaps84]

Yeah makes sense to me know.

So it will be like: first treat the two part-timers (in the same job, at the same time) to be clubbed, for those two months to make up a full-time job of 2 months.

and then add the two months of this full-time job to rest of the 10 months in a serial order to make up 12 months of that full-time job.

In this case, all 4 employees should have done the same job (Job 2) basically.

[EEE]

Gratitude for all your comments and post as i have a better understanding of how to proceed with my AR.

The part time job i created was to meet criteria at the time of application. Also one of the part time employee worked for 16 hrs for 3 months while the other worked for one month. I classed this as 2 months of full time work, although I also had a full time employee working for the 4 months as well (April to July to be precise). I calculated based on hours as well.

I also wondered why i was not given even some points for creating 1 full time job for 12 months at least. But i guess it is at the discretion of the CW and it may still not mean that my leave to remain will be granted. I have started looking for an immigration lawyer to help out with my AR but they few ones I have spoken with have not given me an idea of how they intend to over turn the Home office decision. They want me to commit myself and this will involve paying first.

I will keep you posted of how i proceed. But please keep your comments coming as they have been very helpful. Thanks again

[marcnath]

You did not confirm how you filled in the job table.
Also, have you had any employees after you filed the extension application ? If so, what ?

Also one of the part time employee worked for 16 hrs for 3 months while the other worked for one month. I classed this as 2 months of full time work, although I also had a full time employee working for the 4 months as well (April to July to be precise). I calculated based on hours as well.

Since you are post April 2014, this will not work. So, unfortunately, you have little to no chance in your AR if it is 3 months for one employee and 1 month for another.
In your initial post, you mentioned 2 employees for 2 months each - which is the correct one ?

I also wondered why i was not given even some points for creating 1 full time job for 12 months at least. But i guess it is at the discretion of the CW and it may still not mean that my leave to remain will be granted. I have started looking for an immigration lawyer to help out with my AR but they few ones I have spoken with have not given me an idea of how they intend to over turn the Home office decision. They want me to commit myself and this will involve paying first.

There is no half points for the attributes. You either meet all the criteria and get the full points or nothing at all

[Uzair2492]

Hello EEE please private message me i think i have the same situation or please read my post as i have already mentioned my question in seprate post. Please have a look and compare with your question thanks.

[CR001]

Hello EEE please private message me i think i have the same situation or please read my post as i have already mentioned my question in seprate post. Please have a look and compare with your question thanks.

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