Tier 1 Ent £50k ILR

[CULLINAN]

Page 50 Tier 1 guidance:

Genuine Entrepreneur Activity (contract of service with another business)
A41. If you are granted leave to enter or remain as Tier 1 (Entrepreneur) migrant, your leave will prohibit you from engaging in employment except where you are working for the business which you have established, joined or taken over. You will comply with this restriction if, for example, you are employed as the director of the business in which you have invested, or if you are working in a genuinely self-employed capacity. In this capacity you will have a contract for service.
You may not, however, be considered to be working for your own business if the work you undertake amounts to no more than employment by another business (for example, where
your work amounts to no more than the filling of a position or vacancy with, or the hire of your labour to, that business, including where it is undertaken through engagement with a recruitment or employment agency). In this capacity you would have a contract of service. This applies even if it is claimed that such work is undertaken on a self-employed basis.
For example under a contract for service you could, for example, be running an IT security software business that provides IT security solutions to businesses or customers. By contrast, you might be considered to be undertaking an “activity pursuant to a contract of service” if, for example, you are a self employed security software programmer that is engaged by one or more software companies to provide solutions to their clients on those companies’ behalf, and the terms of that engagement amount to employment.
In considering whether your work amounts to genuine self-employment (and is therefore work for the business which you have established, joined or taken over) or is in fact employment
by another business, we will take into consideration your status in tax law and employment law, as well as whether:
• you are in business for yourself, are responsible for the success or failure of your business and can make a loss or a profit;
• you can decide what work you do and when, where or how to do it;
• you can hire someone else to do the work;
• you are responsible for fixing any unsatisfactory work in your own time;
• your client agrees a fixed price for your work - it doesn’t depend on how long the job takes to finish;
Tier 1 (Entrepreneur) Policy Guidance – version 0 3 /2019 – Page 50
• you use your own money to buy business assets, cover running costs, and provide tools and equipment for your work;
• you can work for more than one client;
• you put in bids or give quotes to get work;
• you are under direct supervision when working;
• you submit invoices for the work you have done;
• you are responsible for paying your own National Insurance and tax;
• you get holiday or sick pay when you are not working; and whether
• you operate under a contract for services or consultancy agreement that uses terms like ‘self-employed’, ‘consultant’ or an ‘independent contractor’
We will consider these factors as a whole. You should not assume your work will be classed as genuine self-employment based on a single factor.
If your work amounts to no more than employment by another business, we may consider you to be working in breach of your conditions of stay, and that you are therefore liable to curtailment of your stay and/or removal from the United Kingdom.

[lifeinthukilr]

Hi marcnath and bizman. Many thanks for your inputs.

May I please ask a simple question here:

I arrive in the UK on 28th Sep 2010 on Tier 4 student visa which expired on 31st Jan 2012.
Before it was close to its expiry, I then switched on to PSW on 19th Jan 2012 which was valid until 19 Jan 2014.
Next, before the expiry of my PSW, I switched on to Tier 1 Entrepreneur on 5th Nov 2013 which I got extended on 3rd of Jan 2017. Next, I applied for ILR (on 12th Oct 2018) based on Tier 1 entrepreneur 5 year completion which I am still waiting on.

My question here is, currently, I am waiting for my ILR decision to come out from Home Office, and if at this point I switch to Tier2 then when can I apply for ILR next?

Please advise.

Many Thanks

If you switch to Tier 2, you can apply for ILR immediately. Your years is T1 Ent count towards the ILR.

But based on the responses you have given and the ability to switch the contract you have to an employee relationship, I suspect you are on the borderline of being a contractor. It does not matter that you have a business to business contract - it looks like the client requires you specifically to working on the job and that is one of the criteria which HO uses to evaluate.

If that is the case, switch to Tier 2 will not help as you would be deemed to have broken the conditions of T1 E anyway.

Thanks marcnath for your response.

Currently one of my client has asked me to stop providing the services to them just because my client is being over-protective and wants me to resume with the services only after I get the ILR (as I already mentioned) and that too with new B2B contract. Therefore, there is no association between my registered company and my ex-client at the moment. Amongst all the other clients this is the ONLY client which has the sponsorship licence.

And regarding the point you raised:
"it looks like the client requires you specifically to working on the job"

--> My client doesn't care at all as to who does this piece of work for them. All they want is that someone has to be on their sponsored Tier2 visa / or a citizen of EU or UK, just so that my ex-client is safe.

If at this point my ex-client offers me with the Tier2 visa for an advertised position which has been published 28 days ago, then does it still breaks the conditions of T1 E ?

It is impossible for me to comment on whether you can be considered as working as a contractor without knowing all the details. There are a set of guidance questions in the T1E guidelines that may help you assess it yourself (it is in one of Appendix). If you are confident it will not be seen as a contractor then you are not breaching any conditions and it does not matter which route you take.

Thanks marcnath.

I checked all the points mentioned in the section A41 of the T1E policy guidance version (March/2019) and my status satisfies all the bullet points mentioned in there.

[lifeinthukilr]

Page 50 Tier 1 guidance:

Genuine Entrepreneur Activity (contract of service with another business)
A41. If you are granted leave to enter or remain as Tier 1 (Entrepreneur) migrant, your leave will prohibit you from engaging in employment except where you are working for the business which you have established, joined or taken over. You will comply with this restriction if, for example, you are employed as the director of the business in which you have invested, or if you are working in a genuinely self-employed capacity. In this capacity you will have a contract for service.
You may not, however, be considered to be working for your own business if the work you undertake amounts to no more than employment by another business (for example, where
your work amounts to no more than the filling of a position or vacancy with, or the hire of your labour to, that business, including where it is undertaken through engagement with a recruitment or employment agency). In this capacity you would have a contract of service. This applies even if it is claimed that such work is undertaken on a self-employed basis.
For example under a contract for service you could, for example, be running an IT security software business that provides IT security solutions to businesses or customers. By contrast, you might be considered to be undertaking an “activity pursuant to a contract of service” if, for example, you are a self employed security software programmer that is engaged by one or more software companies to provide solutions to their clients on those companies’ behalf, and the terms of that engagement amount to employment.
In considering whether your work amounts to genuine self-employment (and is therefore work for the business which you have established, joined or taken over) or is in fact employment
by another business, we will take into consideration your status in tax law and employment law, as well as whether:
• you are in business for yourself, are responsible for the success or failure of your business and can make a loss or a profit;
• you can decide what work you do and when, where or how to do it;
• you can hire someone else to do the work;
• you are responsible for fixing any unsatisfactory work in your own time;
• your client agrees a fixed price for your work - it doesn’t depend on how long the job takes to finish;
Tier 1 (Entrepreneur) Policy Guidance – version 0 3 /2019 – Page 50
• you use your own money to buy business assets, cover running costs, and provide tools and equipment for your work;
• you can work for more than one client;
• you put in bids or give quotes to get work;
• you are under direct supervision when working;
• you submit invoices for the work you have done;
• you are responsible for paying your own National Insurance and tax;
• you get holiday or sick pay when you are not working; and whether
• you operate under a contract for services or consultancy agreement that uses terms like ‘self-employed’, ‘consultant’ or an ‘independent contractor’
We will consider these factors as a whole. You should not assume your work will be classed as genuine self-employment based on a single factor.
If your work amounts to no more than employment by another business, we may consider you to be working in breach of your conditions of stay, and that you are therefore liable to curtailment of your stay and/or removal from the United Kingdom.

Thanks tier11417

I found it as well and good to see your message to be sure that I am looking at the right place.

I checked all the points and my status falls inline with all the points mentioned in the section A41

[bizman]

If this is the case, then you don’t need to switch but be patient to get your decision

[CULLINAN]

There seems to be a delay with Tier 1 ILR applications at the moment in majority cases. You are not alone. Many are still waiting for a long period of time. It is entirely up to you to make an informed decision and follow your gut feeling.

Seems like “50k” applications are processed slower than the “200k” applications as per the feedback.

[lifeinthukilr]

If this is the case, then you don’t need to switch but be patient to get your decision

Thanks for your view.

I appreciate your reply !!! Thanks again !

[lifeinthukilr]

There seems to be a delay with Tier 1 ILR applications at the moment in majority cases. You are not alone. Many are still waiting for a long period of time. It is entirely up to you to make an informed decision and follow your gut feeling.

Seems like “50k” applications are processed slower than the “200k” applications as per the feedback.

Hi tier11417 - You are right about the "50k" applications being slower than the "200k" applications as per the feedback on the forum. Also, there have been a few recent cases where 50k applicants have received the interview calls as well (just a pattern I have observed).

I am trying to evaluate all the options that are possible in my case, thats why I asked all these questions around switching to Tier2.

Thanks for your inputs !!!

[CULLINAN]

Have you been interviewed before at any stage?

[lifeinthukilr]

Have you been interviewed before at any stage?

No, I have never been interviewed at any of the previous stages. Also, my extension was granted in 8 weeks time.

[CULLINAN]

Have you been interviewed before at any stage?

No, I have never been interviewed at any of the previous stages. Also, my extension was granted in 8 weeks time.

You were pretty lucky at extension stage. Despite being 200k my extension took 16 months.

Did you do any different business after your extension?

As you have not been interviewed before and you have received a complex letter this time, I would advise you to stay mentally prepared for an interview call. I hope you don't need an interview but you should be well prepared.

[lifeinthukilr]

Have you been interviewed before at any stage?

No, I have never been interviewed at any of the previous stages. Also, my extension was granted in 8 weeks time.

You were pretty lucky at extension stage. Despite being 200k my extension took 16 months.

Did you do any different business after your extension?

Ohhh my God - 16 months wait is brutal, I must say that you have the greatest patience of all. Finally after having the ILR done, you must be highly relieved !!!

No - I didn't do anything massively different, just 2 minor things:
1) Increased the salary of my employees
2) changed the office address and didnt like the new office, therefore moved back to the previous office.

Not sure if any of these 2 reasons are causing delay.

[CULLINAN]

Have you been interviewed before at any stage?

No, I have never been interviewed at any of the previous stages. Also, my extension was granted in 8 weeks time.

You were pretty lucky at extension stage. Despite being 200k my extension took 16 months.

Did you do any different business after your extension?

Ohhh my God - 16 months wait is brutal, I must say that you have the greatest patience of all. Finally after having the ILR done, you must be highly relieved !!!

No - I didn't do anything massively different, just 2 minor things:
1) Increased the salary of my employees
2) changed the office address and didnt like the new office, therefore moved back to the previous office.

Not sure if any of these 2 reasons are causing delay.

As of what you have mentioned, you should stay positive. Is your company doing well atm?

[lifeinthukilr]

No, I have never been interviewed at any of the previous stages. Also, my extension was granted in 8 weeks time.

You were pretty lucky at extension stage. Despite being 200k my extension took 16 months.

Did you do any different business after your extension?

Ohhh my God - 16 months wait is brutal, I must say that you have the greatest patience of all. Finally after having the ILR done, you must be highly relieved !!!

No - I didn't do anything massively different, just 2 minor things:
1) Increased the salary of my employees
2) changed the office address and didnt like the new office, therefore moved back to the previous office.

Not sure if any of these 2 reasons are causing delay.

As of what you have mentioned, you should stay positive. Is your company doing well atm?

Thanks - Yeah, company is doing alright, is in profit.

[CULLINAN]

You were pretty lucky at extension stage. Despite being 200k my extension took 16 months.

Did you do any different business after your extension?

Ohhh my God - 16 months wait is brutal, I must say that you have the greatest patience of all. Finally after having the ILR done, you must be highly relieved !!!

No - I didn't do anything massively different, just 2 minor things:
1) Increased the salary of my employees
2) changed the office address and didnt like the new office, therefore moved back to the previous office.

Not sure if any of these 2 reasons are causing delay.

As of what you have mentioned, you should stay positive. Is your company doing well atm?

Thanks - Yeah, company is doing alright, is in profit.

I think you have all the positive points then. Stay positive. Goodluck!

[lifeinthukilr]

Ohhh my God - 16 months wait is brutal, I must say that you have the greatest patience of all. Finally after having the ILR done, you must be highly relieved !!!

No - I didn't do anything massively different, just 2 minor things:
1) Increased the salary of my employees
2) changed the office address and didnt like the new office, therefore moved back to the previous office.

Not sure if any of these 2 reasons are causing delay.

As of what you have mentioned, you should stay positive. Is your company doing well atm?

Thanks - Yeah, company is doing alright, is in profit.

I think you have all the positive points then. Stay positive. Goodluck!

Thanks

[bizman]

Office movements could raise a minor suspicion, however there is no rule that says you can’t move office. So I believe you have a very good chance. I think you are just worried because the delay people have been reporting of late but thankfully there has not been much refusal reported. I think they are just been careful about their decision been the last one to permanent residency

[lifeinthukilr]

Hi Moderators,

I have a query. If I receive a call for the Home Office office visit while I am still in the waiting period, can I still withdraw my ILR application if I have to travel back home in case of a family emergency back home?

My question here is: Can an applicant still hold the right to withdraw the ILR application after having received the HO interview call?

I am trying to understand this scenario as well just in case if it happens and I have to travel back home in case of an emergency.

I totally understand that my application will be cancelled and I have to leave the UK immediately as per HO instructions.



Please advice.

Many thanks

[bizman]

Of course you can withdraw your application at any time. You will loose your fee however if they have started considering your application and if you have exceeded your visa time, you must leave UK immediately.

[lifeinthukilr]

Hi bizman.

Thanks for your quick reply.

In case of application withdrawl, will HO return my documents along with the passport ?
Also, In future I am still allowed to come back to the UK either as a tourist or as a student. Is that right?

Thanks

[CR001]

If your last visa has already expired, ho will likely only return your passport to at the airport.

If you qualify for a visa in the future then no reason you can't get one.

[lifeinthukilr]

Thanks CR001.

Yes, my last visa (BRP) expired in Jan 2019 and withdrawing the application now means that HO will return the passport at the airport.
Will they return all the other documents as well which I submitted with the application such as University Degree certificate, University transcript, etc etc?

Also, if in future I get opportunity where a UK based company is ready to sponsor me for Tier 2 visa, then can I qualify for the Tier 2 as well and apply the visa from the home country?


Thanks in advance.

[CR001]

All your documents are returns. There is no reason for ho to keep them.

You can apply for any visa you qualify for and meet the requirements of in the future.

[bizman]

Yes your documents will be returned and once you do not over stay after withdrawal, you will not have any issues coming back to UK genuinely

[lifeinthukilr]

Thanks bizman.

After the withdrawl, will the HO give me a final date to leave the UK and leaving by that specified date will make sure that I did not overstay.

Am I getting it right?


Many Thanks

[bizman]

Immediately you withdraw your application, you have to plan to leave the UK before the enforcement start chasing you. They will send you a letter to tell you to leave immediately upon your withdrawal.