Understanding Tier 1 Entrepreneur Extensions and Indefinite Leave to Remain

Applications under the old Tier 1 Entrepreneur category have now closed and any Tier 1 Entrepreneur visa holders have until 5 April 2023 to apply to extend their visa or until 5 April 2025 to apply for UK settlement under this route.

Due to ongoing disruption as a result of the pandemic, the Home Office has also issued further guidance on its temporary concessions for the Tier 1 Entrepreneur (extension) visa.

In this article, our Immigration partner Christine Chiew explains the COVID-19 concessions for Tier 1 Entrepreneur extensions and the Indefinite Leave to Remain (ILR) in the UK as well as answering the frequently asked questions when applying for a Tier 1 Entrepreneur extension visa.

How long will the Tier 1 (Entrepreneur) visa extension be granted for?

Extension leave is normally granted for:

• 2 years for extensions for those who were last granted leave as a Tier 1 Entrepreneur migrant
• 3 years for extensions for those who were last granted Tier 1 Graduate Entrepreneur or startup (switching category).

What are the conditions for Tier 1 (Entrepreneur) extension?

Entrepreneur visas can be extended if the following conditions are met:

• The visa holder has invested £200,000 in the company; and
• The company has been registered within 6 months of the date the visa holder was granted permission to stay in the UK under the Entrepreneur category; and
• The visa holder has created at least two full-time positions for settled workers. For a new business this means that an aggregate of two positions, full-time or equivalent, must have been created, with each lasting for at least one year. If the Entrepreneur visa holder has taken control of an established UK business, their investment and presence in the company must have created two positions similar to those outlined above.

Can you extend Tier 1 extension/temporary extension of leave if the business has been disrupted by COVID-19?

Yes, you are still able to apply for extension of a Tier-1 Entrepreneur visa if your business has been disrupted by COVID-19. The Home Office has provided relief for existing Tier 1 (Entrepreneur) migrants, who as result of the COVID-19 have been unable to meet the job creation requirement of this rule.

You no longer need to employ at least 2 people for 12 consecutive months. The 12-month period you are required to employ someone for can be made up of multiple jobs across different months, but this must be equivalent to 2 full-time jobs.

Furlough – The Home Office has confirmed that the time when your employees were furloughed will count towards the 12-month period if they have been paid at least 80% of their normal salary.

If you have not been able to employ staff for 12 months by the time your visa expires, you will be allowed to extend your stay for a further 2 years, if you can show:

• You have created at least 2 jobs by the date you apply;
• You have been unable to employ staff for 12 months due to COVID-19.

It is worth noting that when you apply for settlement (ILR), applicants who have been granted such a temporary extension will be required to demonstrate that they have created 2 additional full-time jobs for the 12-month period over / above the normal job creation requirement for ILR.

Can you apply for Tier-1 extension from outside the UK and how long is the processing time?

Yes, an application for extension of a Tier 1 Entrepreneur visa can be made from outside the UK. The processing time is 4–8 weeks under the standard service. However, processing times are not guaranteed considering possible COVID-19 delays.

What is the Genuineness Requirement for extension and Settlement as a Tier 1 (Entrepreneur) migrant?

You will need to show that the business was genuinely established, taken over or that you have legally become the director of a business in the UK. You will also need to show that you have genuinely operated that business in the UK and that you have genuinely invested the £200,000 funds into one or more genuine businesses in the UK.

What are the requirements re absences from the UK for ILR application for Tier 1 Entrepreneur?

The Immigration Rules require that the applicant for ILR as Tier 1 Entrepreneur must not have been absent from the UK for more than 180 days in any 12 calendar months during the qualifying period with leave as a Tier 1 (Entrepreneur) migrant.

The Home Office enforces the 180-day limit strictly but will consider granting ILR if the absences are over the limit and the applicant provides evidence that the excess absences were due to serious or compelling reasons.

The Guidance states:

Absences of more than 180 days in a 12-month period before the date of application (in all categories) will mean the continuous period has been broken unless an exemption applies. However, you may consider a grant of ILR if the applicant provides evidence to show the excessive absence was due to serious or compelling reasons.

Serious or compelling reasons will vary but can include:

• serious illness of the applicant or a close relative
• a conflict;
• a natural disaster, for example, volcanic eruption or tsunami.

The applicant must provide evidence in the form of a letter which sets out full details of the compelling reason for the absence and supporting documents, for example medical certificates or evidence of disruption to travel arrangements.

If, for any reason, return travel to the UK is disrupted or delayed due to Covid-19, applications for ILR will need to rely on discretion being exercised over the absences from the UK.

If you are staying outside the UK for an extended period because you had disrupted travel that led you to breach residence requirement rules, you are advised to keep evidence and/or reasons. For instance, you should keep evidence of any travel bans in specific countries, closures of visa application centres, and evidence of illness and/or caring for family members who are unwell.

Does Tier 1 Entrepreneur lead to settlement in the UK?

Entrepreneur visas offer a pathway to settlement (ILR) in the UK. To qualify for ILR, the Entrepreneur visa holder must:

• Have lawfully resided in the UK on this visa for 5 years; and
• Be able to show sufficient knowledge of the English language and life in the UK.

When can you apply for British citizenship?

The Entrepreneur can apply for British citizenship 1 year after they have obtained ILR which they can obtain after a total of 5 years’ leave to remain in the UK under the Tier 1 Entrepreneur category.

If you would like more information on the Tier 1 Entrepreneur extension visa or advice on Indefinite Leave to Remain, please contact Christine Chiew.