Tier 1 Entrepreneur ILR Requirements and Guidance for Settlement

Tier 1 Entrepreneur ILR and Accelerated Settlement in 3 YearsThis relates to Tier 1 Entrepreneur ILR requirements and guidance for settlement under the route. A Tier 1 entrepreneur migrant can apply for Indefinite Leave to Remain (ILR) after spending 5 years lawfully in the UK. However, the applicant must not remain absent from the UK for more than 180 days in any of the five consecutive 12 month periods preceding the date of the application for leave to remain. Moreover, the Tier 1 entrepreneur migrants can also apply for accelerated settlement in the UK after 3 years continuous residence if their business has either created at least 10 new full-time jobs or an income of at least £5 million. Accordingly, the post provides Tier 1 entrepreneur ILR guidance on the following topics:

  1. An overview of the Tier 1 Entrepreneur ILR Requirements
  2. Scoring 75 points for Business Activity for an ILR Application
  3. Tier 1 Entrepreneur ILR and 3-Year Accelerated Settlement
  4. Calculating the qualifying period for Tier 1 Entrepreneur ILR Application
  5. Tier 1 Entrepreneur ILR Job Creation Documents Checklist
  6. Applying for Settlement (ILR) as a Tier 1 Entrepreneur Migrant

1) An overview of the Tier 1 Entrepreneur ILR Requirements

For making an indefinite leave to remain (settlement) application under the Tier-1 (Entrepreneur) category of the PBS, the following criteria need to be fulfilled:

  • the applicant meets the requirements of paragraph 245D or 245DF of the UK’s Immigration Rules
  • the applicant attracts none of the general grounds for refusal in paragraphs 320 to 324 of the Immigration Rules
  • the applicant is not an illegal entrant
  • the applicant scores seventy-five (75) points for attributes (see below)
  • they have enough knowledge of the English language and enough knowledge about life in the UK, concerning Appendix KoLL of the Immigration Rules (UK), unless the applicant is either under the age of eighteen (18) or aged sixty-five (65) or over at the time of making the application;
  • the applicant(s) has (have) not breached any of the immigration rules/laws, except:
    • any period of overstaying allowed under the Immigration Rules;
    • where the application was submitted before July 9, 2012

2) Scoring 75 points for Business Activity for an ILR Application

For applying Tier 1 entrepreneur ILR an applicant needs to score 75 points i.e. 20 points each for investment funds, business activity and job creation. And also 15 points for continuous 5 years in the UK or 3 years under the Tier 1 Entrepreneur Accelerated Settlement. Moreover, the Tier 1 entrepreneur ILR applicants need to pass the genuine entrepreneur test. Accordingly, an applicant needs to satisfy during the assessment process that he/she has:

  1. established, taken over or become a director of one or more genuine businesses in the UK, and have genuinely operated that business
  2. genuinely invested the required level of funds into one or more genuine businesses in the UK to be spent for the purpose of that business or businesses
  3. the genuine intentions to continue operating one or more business in the UK

Investment Funds: 20 Points for Tier 1 Entrepreneur ILR

The applicant has invested or has caused investment to be made by one or more third parties, totalling at least £200,000 (or £50,000 if they were awarded points for £50,000 funding or investment in their last grant of leave) in cash directly into one or more UK businesses.

The applicant does not need to provide evidence of this investment if they were last granted entry clearance or leave to remain as a Tier 1 (Entrepreneur) Migrant.

Business Activity: 20 Points for Tier 1 Entrepreneur ILR

For Tier 1 Entrepreneur ILR application, an applicant needs to engage in business activity at the time of the application. Perhaps, for a Tier 1 entrepreneur ILR application, engaging in a business means that the applicant is registered with either HM Revenue & Customs as Self-Employed or Companies House as a director of a UK company or member of a UK partnership within the three months before the date of application.

Evidence of Business Activity for Tier 1 Entrepreneur ILR

An applicant needs to provide the appropriate evidence to demonstrate registration with HM Revenue & Customs or Companies House.

Job Creations: 20 Points for Tier 1 Entrepreneur ILR

During the period of leave as a Tier 1 (Entrepreneur), an applicant is required to create 2 full-time jobs for 12 months each across the applicant’s business(es).

If an applicant has created 2 jobs in the initial application then an applicant can use these jobs to claim points for settlement, if they were maintained for at least 12 months during the extension period of leave.

Alternatively, if the jobs created during the initial period of leave no longer exist then an applicant can create 2 more in the extension period of leave, and claim points for them, if they exist for at least 12 months.

5 Years Continuous Period in the UK: 15 Points

An applicant can apply for settlement (aka ILR) under Tier 1 (Entrepreneur) once he/she reached 5 years continuous leave in the UK under the route.

However, if an applicant can meet additional criteria then he/she may be eligible to apply for accelerated ILR after a continuous period of 3 years.

The applicant cannot combine Tier 1 (Entrepreneur) leave with leave in any other category to meet the continuous leave requirement.

3) Tier 1 Entrepreneur ILR and 3-Year Accelerated Settlement

A migrant can also apply for Tier 1 Entrepreneur Accelerated Settlement i.e. 3 Years Settlement if he/she can demonstrate that he/she has:

  1. started a business that has a turnover of at least £5 million
  2. joined or taken over an existing business that has seen an increase in turnover
    of over £5 million
  3. has created 10 jobs which have existed for at least 12 months

The PBS dependant family members cannot benefit from the accelerated route. They can extend their leave as the dependants of a PBS migrant who has ILR. However, subsequently, may apply for an indefinite leave once they reach five years in the category.

Documents for Accelerated Settlement £5 M Business Activity

Where an applicant is applying for settlement and relying on business activity from a new UK business or businesses then the applicant is required to provide audited accounts (if the business is legally required to produce audited accounts) or unaudited accounts which show the gross income resulting from the business’ activities and that this gross income reached at least £5 million.

Where an applicant is applying for settlement and relying on business activity from an existing UK business which he/she has taken over or invested in then the applicant is required to provide both of the following specified documents:

(i) Audited accounts (if the business is legally required to produce audited accounts) or unaudited accounts, clearly showing:

  1. the name of the accountant.
  2. the date the accounts were produced.
  3. the gross income from the business activity for the 3 year period immediately preceding the date on which the migrant became involved with the business as a Tier 1 (Entrepreneur) migrant.
  4. a net increase of at least £5 million in gross income from business activity during the period migrant remained involved with the business that he/she is relying on to score points for settlement as a Tier 1 (Entrepreneur) migrant.

(ii) An original signed and dated accountant’s letter, confirming:

  1. the name and contact details of the business,
  2. an explanation of migrant’s status in the business,
  3. the net increase in business activity,
  4. the registration or permission of the accountant to operate in the UK, and
  5. that the accountant will verify the content of the letter to the Home Office on request

4) Qualifying Period for Tier 1 Entrepreneur ILR Application

The qualifying period can include time from the date of approval of the initial application and one can apply for settlement up to 28 days before an applicant will reach the end of the qualifying period. If an applicant applies earlier than that then the application could be refused.

The qualifying period will be the 3 or 5 years immediately before the date an applicant applies for settlement or the 3 or 5 years immediately before the date the settlement application is decided, depending on which is most beneficial for the applicant.

If an applicant has spent more than the required time in the UK then only the most recent 3 or 5 years will be considered.

Allowed Absences for Tier 1 Entrepreneur ILR Application

One cannot have had more than 180 days’ absence from the UK during any consecutive 12 months of the qualifying period.

List of Absences and Reasons

An applicant needs to list details of the absences from the UK, including the reasons for those absences, on the form but an applicant is not required to provide any specified evidence to support his/her claim.

How 180 Days Per Year Are Counted?

Whatever the reason for absences from the UK they will still be counted towards the maximum 180 days ( but see delayed entry to the UK below). This includes any absences for work reasons or serious and compelling reasons.

Exceptions

The only exception is where an applicant has been absent from the UK assisting with a national or international environmental or humanitarian crisis overseas, such as the Ebola crisis which began in West Africa in 2014 and an applicant can provide evidence that this was the purpose of the absence.

An applicant can include the time between the entry clearance being granted and applicant’s entering the United Kingdom as part of the continuous period. Absences between the date entry clearance being granted for entering the UK are treated as an absence from the UK and will form part of the 180 days allowed within a continuous 12 month period.

For example, if an applicant entered the UK 100 days after he/she obtained entry clearance and have a further 81 days absence during the remainder of the continuous 12 month period, then he/she will exceed the number of absences permitted from the UK. Consequently, the applicant would not qualify for settlement 5 years or 3 years (as appropriate) after the date the entry clearance was granted. The applicant would need to wait until a date where none of the qualifying periods included absences of more than 180 days in any consecutive 12 month period before he/she could qualify.

Break in the Continuous Period: Tier 1 Entrepreneur ILR Application and

If an applicant has been outside of the UK for more than 180 days in any consecutive 12 month period, this will break the continuous period and the applicant will need to start the qualifying period for settlement again. If this happens the migrant may need to obtain a further grant of limited leave to remain to reach the continuous period in the UK.

Settlement Applications from Jan 11, 2018

For settlement applications made from 11 January 2018, the absences from the UK will be considered on a rolling basisrather than in separate consecutive 12-month periods. If the qualifying period includes leave granted before this date any absences during that leave will be considered under the previous rules – in separate 12-month periods, ending on the same date.

For example, An applicant applies for settlement on 30 June 2020. The continuous period includes the following grants of leave:

  • One grant of leave from 1 July 2015 to 28 July 2018 – Any absences during this grant of leave will be considered in separate 12 month periods, ending on 30 June each year.
  • One grant of leave from 29 July 2018 to 30 June 2020 – Any absences during this grant of leave will be considered on a rolling basis. The absences during the previous grant of leave will not be included.

Criticism of 180 Days Rule for Tier 1 Entrepreneur ILR

Many immigration experts opined that the 180 days rule is unreasonable in the global business market. As indicated above, the 180 days rule states that the entrepreneur cannot spend more than 180 days in any one-year period outside of the UK in order to qualify for settlement.

The recurrent criticism of this rule was that it was simply too harsh. Both in terms of how the twelve-month period is applied, and the restriction itself. Since developing international business ties is crucial to develop a successful business and, as such, there should not be such strict limits on the entrepreneurs’ ability to operate internationally.

5) Tier 1 Entrepreneur ILR Job Creation Documents Checklist

For claiming 20 points for job creations, a Tier 1 Entrepreneur ILR applicant needs to demonstrate that he/she has:

  • established a new business or businesses that have created the equivalent of at least 2 new full-time jobs for settled workers, or
  • taken over or invested in an existing business or businesses and their services or investment have resulted in a net increase in the employment provided by the business or businesses for settled workers by creating the equivalent of at least 2 new full-time jobs for settled workers.

The jobs must have existed for at least 12 months during the applicant’s most recent grant of leave or, where that leave was granted less than 12 months ago, for at least the 12 months immediately before the date of application.

Documents for Job Creation Tier 1 Entrepreneur ILR

An applicant is required to provide the following specified documents to demonstrate job creation:

  • Documentation to prove the employee was a settled worker. Such as the biometric page of a British passport for employee’s photograph and personal details.
  • For directors of a company – a printout from Companies House of the company’s filing history page and of a Current Appointment Report to show that the applicant is/was a director of each business for the period.
  • For members of a limited liability partnership – a printout from Companies House of the partnership’s filing history page and of a Current Appointment Report to show that the applicant was a member of each partnership for the period.
  • Employee Payment Records, original HM Revenue & Customs P45 or P46.
  • Real Time-Full Payment Submissions.
  • Wage or pay slips to cover the total period of employment created for each worker
  • Additional Specified Documents – A duplicate HMRC Full Payment Submission for the year before the jobs were created and the year that the jobs were created and signed by the applicant; or if the business started employing staff for which points are being claimed before they were reporting under Real Time, a form P35.
  • If an applicant has joined or taken over an existing business then the applicant is required to supply an accountants letter to confirm the job creation.

Hourly Wage Rate and Part Time Jobs

An applicant is required to give the hourly rate for the employee(s). If the hourly rate changed for an employee in the same job, then an applicant needs to enter this information as a fresh period of employment. If an applicant wishes to combine part-time jobs to make the equivalent of one full-time post, the part-time jobs must have existed for at least 12 months.

Details of the Employees

Details of all employees who filled these jobs for the required 12 month period. The jobs must exist for at least 12 months. Within the same job, another worker can replace a worker who is employed for part of a year and then leaves the job. However, employment as a whole adds up to 12 months.

Moreover, hours of workers in 2 part-time jobs can be combined to add up to 30 hours a week or more. Accordingly, 2 part-time jobs form the equivalent of one full-time job, as long as the 2 part-time jobs exist for 12 months.

6) Applying for Settlement (ILR) as a Tier 1 Entrepreneur Migrant

The settlement form is called ‘SET (O). This is used for applying indefinite leave to remain as a Main and Dependant Spouse/Child Tier 1 (Entrepreneur) Migrant. The normal specified fee is £2,389 per applicant for standard applications made by post or courier.

Postal Address: Home Office, SET(O), Indefinite Leave to remain, PO Box 591, Durham, DH1 9FS.

Knowledge of Life and Language – Settlement

When a migrant applies for settlement then he/she is required to demonstrate knowledge of life and language in the UK before the settlement is granted (unless the migrant falls under an exemption).

The migrant can show this by passing both Life in the UK Test and holding an English speaking and listening qualification at level B1 or above (please note: both Academic and General training are acceptable).

Cover Letter for Tier 1 Entrepreneur ILR Application

If an applicant’s situation is unusual or particularly complex, then the applicant may include a covering letter with the application. The covering letter should explain how the documents provided with the application demonstrates that the applicant has met the requirements for indefinite leave to remain. The application can be processed without a covering letter, but it may speed up our consideration.

Tier 1 Entrepreneur ILR Processing Time

The service standard of UKVI is to process ILR application made inside the UK within 6 months. The actual processing time may vary from 8 – 32 weeks due to workload, the complexity of the application and documents verification.

My progress on Tier 1 Entrepreneur ILR application (myself + 1 dependant)

Date Posted: 28/02/2017
Payment taken: 02/03/2017
Biometrics letter: 03/03/2017
Email acknowledgement: 06/03/2017
Biometrics reminder email: 16/03/2017
Submitted Biometrics: 20/03/2017
Email confirming under progress: 03/04/2017, 03/05/2017
Approval with Documents and passport received: 12/05/2017 (approval 10/05/2017)
BRP: 13/05/2017

Refusal on the General Grounds

A successful applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant. The migrant must not be in the UK in breach of immigration laws except that, where paragraph 39E of these Rules apply, any current period of overstaying will be disregarded. The migrant must, unless he provides a reasonable explanation, comply with any request made by the Secretary of State to attend for interview.

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