As a Tier 1 Entrepreneur visa holder, you may be concerned about your ability to comply with your visa conditions and to meet future extension eligibility requirements because of the impact of the coronavirus outbreak on your business.
The Home Office has provided specific guidance for Tier 1 Entrepreneur visa holders whose businesses have been affected by the COVID-19 crisis. While welcomed and much-needed, the guidance is not, however, clear in all parts. We have sought further clarification from the Home Office and will continue to update as new advice emerges.
Below we summarise the latest government guidance in this area and provide additional insight for Tier 1 entrepreneurs dealing with the current crisis.
Meeting the 12-month employment requirement
The Home Office has stated that you no longer need to employ at least 2 people for 12 consecutive months each, and that the 12 month period you are required to employ someone for can be made up of multiple employees across different months.
Since the current job creation rules already allow applicants to rely on non-consecutive periods of employment and multiple employees working in the same job, this may well be an unfortunate case of poor drafting – perhaps the intention was to allow applicants to combine time worked by different employees in different jobs – which is not currently permitted. We are awaiting Home Office clarification and will update when informed.
Where you are not able to employ staff for a total of 12 months by your visa expiry, you will be allowed to extend your stay on a temporary basis to allow you the time to meet the requirement.
This is a welcome development, but we look forward to further details about how this temporary extension will operate in process. Will all other extension requirements need to be satisfied?
Subsequent to the closure of the Tier 1 Entrepreneur scheme in 2019, the Home Office has put in place hard deadlines by which any application for an extension or ILR must be made; in most cases April 2023 for the former, April 2025 for the latter. Will these deadlines be extended where an applicant’s progress has been delayed by COVID-19?
There is also the issue of cost – presumably this will require the applicant to incur a further set of application fees (which are not insubstantial). Will there be any fee concessions to account for this?
Furlough impact on employment period
Time spent by your employees on furlough will not count towards the 12-month period. This clarity is welcome, albeit not surprising given the extension concession above.
It is also helpful to have confirmation, by inference, that there is no prohibition on businesses owned/operated by a Tier 1 entrepreneur from making use of the job retention scheme.
Additional practical issues affecting Tier 1 Entrepreneur visa holders
In addition to the Home Office guidance, some of the issues we have been helping our Tier 1 Entrepreneur clients with include:
When applying for an extension of leave, Tier 1 Entrepreneurs must show that the required investment has been made in full and subsequently deployed by the business.
It does not appear that the Home Office will allow for a temporary extension of leave where COVID-19 related business disruption has prevented the applicant from investing and deploying the required before the expiry of their leave.
Applicants will want to ensure that where funds have not yet been invested in their business(es), that these funds continue to be available to them throughout this period, that they are aware of the investment timelines and that they take steps to ensure that the investment is made in full before applying for an extension of leave.
With any extension or ILR application, entrepreneurs must provide a summary of the steps the applicant has taken to implement their business plan. Where there has been disruption to any plans due to COVID-19, the applicant may be advised to provide an explanation and evidence of this.
To qualify for ILR, applicants and, in some cases, their dependant partners, must demonstrate that they have not been absent from the UK for more than 180 days in any consecutive 12 month period. The Immigration Rules already permit caseworkers to exercise discretion and disregard excessive absences due to certain unexpected circumstances beyond the applicant’s control. At the moment, the Rules list conflict, natural disasters, serious illness of the applicant or a close relative as examples.
To date the Home Office has not updated the Rules to include absences due to COVID-19-related travel restrictions. We would hope that the Home Office will take a reasonable approach and read COVID-19 related absences into this rule, but any clarification on this point would be welcome. In the meantime, we would advise any Tier 1 Entrepreneur visa holders who are currently overseas and unable to return to the UK to retain evidence of their circumstance which can be presented with a future ILR application.
If you have any concerns about disruption to your business due to the crisis, and the effects this will have on your visa, our specialist Tier 1 immigration lawyers are on hand to answer your questions.