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Business Immigration: Coronavirus and the Concession for Entrepreneurs

Friday 5 June 2020

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The Entrepreneur route has always provided more than its fair share of interpretative challenges to business people and their lawyers alike. And it looks like the Covid-19 concession announced for those still in the route (it was replaced for new applicants by the Innovator option in Spring 2019) is no different.

Entrepreneurs extending their leave or applying for settlement must demonstrate successful job creation, essentially by showing they employed at least 2 people for 12 months in jobs that did not previously exist. It is not hard to see that this could be threatened by current economic circumstances. Whilst the Rules require that the jobs be extant during the last grant of leave, they need not exist throughout the whole period of trading. So one can well imagine some enterprises where the business plan would envisage the jobs running into spring and summer 2020, an expectation that might well run aground with the economy’s interruption by the current public health crisis.

So this announcement by the SSHD (found within the general advice for UK visa applicants and temporary UK residents originally published on 24 March 2020) is highly relevant:

"You no longer need to employ at least 2 people for 12 consecutive months each. The 12 month period you are required to employ someone for can be made up of multiple jobs across different months.

Time when your employees were furloughed will not count towards the 12 month period.

If you have not been able to employ staff for 12 months in total by the time your visa expires, you will be allowed to temporarily extend your stay to give you time to meet the requirement.

These arrangements will continue for applications made after 31 May 2020, where the jobs you are relying on were disrupted due to COVID-19."

The ambit of this policy is not completely clear. We can state two propositions with reasonable confidence:

(a) Time furloughed will not count towards job creation (2nd paragraph);

(b) There is a possibility of a temporary extension of leave for those who have not met the “2 job” creation requirement (3rd paragraph).

But what is the meaning of the first paragraph? The first sentence indicates that there is no need to employ 2 people for 12 consecutive months each. But in truth the Immigration Rules already allow for this: for example Appendix A para 49(c) permits a job to “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.” So is this intended to be an introductory summary of the present position, just to put the reader in the right frame of mind, or does it herald a new way of assessing job creation which permits much more mix-and-match than hitherto? The phrase “You no longer need to employ” suggests an active change.

On balance it seems that the requirement at Appendix A para 49(e) is at the centre of the concession. The second sentence states that “multiple jobs” can be relied on “across different months”. So one could read this as a relaxation of the para 49(e) restriction that “Different jobs that have existed for less than 12 months cannot be combined together to make up a 12 month job.” There certainly seems to be no relaxation of the requirement that the job creation have extended into the last grant of leave; nor does there seem to be any change to the requirement that a job last for 30 hours a week before it can count.

Entrepreneurs who entered the route before 6 April 2014 and applied to extend their leave, or for Indefinite leave, before 6 April 2019 could rely on more flexible rules on job creation.  Under transitional protection this class of applicant could satisfy the Entrepreneur visa job creation requirement by relying on one worker for 24 months, one worker for six months and one for eighteen months, four workers for six months each. Perhaps the first paragraph of the new concession represents a return to something resembling that more relaxed route. Though it is difficult to see that the very precise terms of the concession could be implied into the rather vague phrase “multiple jobs across different months”.

One thing’s for sure: we haven’t seen the last of the conundrums thrown up when advising Tier 1 Entrepreneurs.

Mark Symes specialises in commercial immigration advice. More generally the Garden Court immigration team are available to advise solicitors and individuals on these issues.  We run regular immigration seminars on business immigration: the last one can still be seen on the chambers website here.

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