The Home Office and UK Visas and Immigration rules can be highly complex and it is important that Applicants fully understand all of the requirements before submitting a UK Visas application otherwise it will be refused by the Home Office. This has recently been highlighted in the case of Felber & Anor v Secretary of State for the Home Department  ScotCS CSOH 130 (“Felber & Anor v SSHD”) whereby their application for Tier 1 Entrepreneur Settlement, also known as Indefinite Leave to Remain, was refused due to the Applicants ‘mistakenly’ not meeting the Tier 1 Entrepreneur Job Creation Requirement during their period of extension.
Tier 1 Entrepreneur Settlement Case – Background to Felber & Anor v SSHD
The Applicant and his wife (“the Applicants”) are USA nationals who entered the UK in 2011 as a Tier 1 Entrepreneur and Tier 1 Entrepreneur dependant. The Applicants applied for a Tier 1 Entrepreneur visa extension after the initial 3 year period, and were granted a further 2 years leave in the UK. In February 2016, the Applicants made an application for Tier 1 Entrepreneur Settlement, which was refused in August 2016. As a result, the Applicants then submitted an Administrative Review, however this was unsuccessful. The reasoning for the Applicants Tier 1 Entrepreneur Settlement refusal was because during the further 2 years extension period, the Applicant failed to meet the Tier 1 Entrepreneur Job Creation Requirement.
Tier 1 Entrepreneur Job Creation Requirement
One of the requirements the Tier 1 Entrepreneur Applicants must fulfill in order to extend their Tier 1 Entrepreneur visa for a further 2 years is that they must create at least two new full time jobs for settled persons in the UK. If a Tier 1 Entrepreneur wishes to apply for settlement thereafter, then they must also satisfy this Job Creation Requirement during their 2 year extension period.
The Tier 1 Entrepreneur Job Creation Requirement is expressed under Appendix A, Table 6 of the Immigration Rules, which prior to 6 November 2014 stipulated that:
“Where the applicant’s last grant of entry clearance or leave to enter or remain was as a Tier 1 (Entrepreneur) Migrant, the jobs must have existed for at least 12 months of the period for which the previous leave was granted.”
However, from 6 November 2014 the wording of the rules was amended to state:
“Where the applicant’s last grant of entry clearance or leave to enter or remain was as a Tier 1 (Entrepreneur) Migrant, the jobs must have existed for at least 12 months during that last grant of leave.”
Tier 1 Entrepreneur Job Creation Requirement in the case of Felber & Anor v SSHD
In regard to the Applicants, they had complied with the Tier 1 Entrepreneur Job Creation Requirement during their initial period of leave in the UK, however they had not realised that when it came to the 2 year extension period that the jobs created during the initial period had to be carried on for 12 months each or created anew.
This oversight on the part of the Applicants was due to the terminology of the Rules at the time of their Tier 1 Entrepreneur Settlement application and the added confusion of the amendments made in November 2014. In short, Lady Carmichael determined that the amendment in November 2014 had not effected a change, but had been intended only to improve the clarity of the rule. Therefore the decision was upheld and the Applicants must now return to their native USA.
What does the Felber & Anor v SSHD case mean for Tier 1 Entrepreneur Settlement Applications?
If anything, this case has highlighted the importance that Applicants should fully be aware and understand the requirements for not only the Tier 1 Entrepreneur Visa extension application, but also for future settlement. It can be argued that the decision in Felber & Anor v SSHD is harsh and that discretion should have been used as the Applicants have made positive contributions to the UK since 2011 and had to the best of their knowledge, complied with all of the Home Office’s rules and requirements.
The irony is that the UK Government is eager to attract high net worth individuals such as Tier 1 Investors and Tier 1 Entrepreneurs, yet due to the wording of the Immigration Rules being unclear and confusing, the Applicants are now being forced to leave the UK. The UK Immigration Rules and requirements are complex therefore it is crucial to seek expert legal advice from our business immigration lawyers before preparing and submitting a UK visa application to the Home Office.
The full judgment can be accessed here: Felber & Anor v Secretary of State for the Home Department  ScotCS CSOH 130 | LEXVISA Solicitors & Barristers
Using Legal Representation for a Tier 1 Entrepreneur Settlement Application
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration lawyer to prepare a Tier 1 Entrepreneur Settlement Application.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your Tier 1 Entrepreneur Settlement application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your Tier 1 Entrepreneur Settlement application meets the Immigration Rules.
Successful Tier 1 Entrepreneur Settlement Applications
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
Preparation is the key to successful Tier 1 Entrepreneur Settlement applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
Contact our London immigration solicitors on 02071830570 or complete our contact form.