ARTICLE
29 November 2021

Tier 1 Entrepreneur ILR, Covid & Continuous Residence

RC
Richmond Chambers Immigration Barristers

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Richmond Chambers is a multi-award winning partnership of specialist immigration barristers. Our barristers provide expert legal advice and representation, directly to individuals and businesses, in relation to all aspects of UK immigration law. We combine the expertise and quality of the Bar, with the service of a trusted law firm.
In accordance with the current Immigration Rules and the Entrepreneur Guidance, entrepreneurs are unable to settle as Tier 1 Entrepreneurs in the five year route if the Covid pandemic has made them be out of the UK for more than 180 days in a 12 month period.
UK Immigration
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In accordance with the current Immigration Rules and the Entrepreneur Guidance, entrepreneurs are unable to settle as Tier 1 Entrepreneurs in the five year route if the Covid pandemic has made them be out of the UK for more than 180 days in a 12 month period. This is taking into account the deadline for entrepreneurs to extend their leave and apply to settle by April 2025 at latest.

The full requirements for ILR as an entrepreneur are discussed here and here.

This article only considers the continuous residence requirement.

Tier 1 Entrepreneur Continuous Residence Requirement Rules

In this regard, the relevant Immigration Rules are Paragraph 245AAA:

(a) References to a "continuous period" "lawfully in the UK" means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:

(i) the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:

(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that their Sponsor, if there was one, agreed to the absence(s) for that purpose; and

(ii) the applicant has existing limited leave to enter or remain upon their departure and return

and Point 4 (Table 6), Appendix A:

(a) The applicant has spent a continuous period of 5 years lawfully in the UK with leave as a Tier 1 (Entrepreneur) Migrant, or

(b) The applicant has spent a continuous period of 3 years lawfully in the UK as a Tier 1 (Entrepreneur) Migrant, and has:

(i) created the equivalent of at least 10 (including the jobs already relied upon to score points under row 3) new full time jobs which meet the requirements in row 3 above, or

(ii) established a new UK business or businesses that has or have had a gross income from business activity of at least £5 million during the 3 year continuous period, or

(iii) taken over or invested in an existing UK business or businesses and the applicant's services or investment have resulted in a net increase in gross income from business activity of £5 million during the 3 year continuous period, when compared to the 3 year period immediately before the date the applicant became involved with the business.

Tier 1 Entrepreneur Continuous Residence Requirement Guidance

The Immigration Rules clearly do not account for excess absences due to the pandemic. This is reflected in the published Guidance.

Tier 1 PBS Policy Guidance (Version 10/21) (page 22):

Absences - settlement

You cannot have had more than 180 days' absence from the United Kingdom during any consecutive 12 months of the qualifying period. You will need to list details of your absences from the United Kingdom, including the reasons for those absences, on the form but you will not need to provide any specified evidence to support this. Whatever the reason for absences from the United Kingdom, 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. The only exception is where you have been absent from the United Kingdom assisting with a national or international humanitarian or environmental crisis overseas, such as the Ebola crisis which began in West Africa in 2014 and you can provide evidence that this was the purpose of the absence

Tier 1 (Entrepreneur) Casework guidance (version 27.0) (page 111)

(requirements for ILR on five year route):

An Applicant must " have spent a continuous period of 5 years lawfully in the UK, with absences from the UK of no more than 180 days in any 12 calendar months during that period, with leave as a Tier 1 (Entrepreneur) migrant

However, the ILR guidance applicable to entrepreneurs allows for a grant of ILR outside of the Immigration Rules rather than in the Tier 1 Entrepreneur category if applicants can provide evidence that there are 'exceptional reasons' for the absence, and argue that the pandemic falls under the definition of 'natural disaster'.

Indefinite leave to remain: calculating continuous period in UK (version 22.0) (page 9):

No more than 180 days' absences are allowed in a consecutive 12-month period.

(pages 18-19):

Exceptional cases

This section tells you about the exceptional circumstances when you can grant the applicant indefinite leave to remain (ILR) when their continuous leave is broken. 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

You can only apply discretion when it has been authorised at senior executive officer level

If you are satisfied that the circumstances are sufficiently compelling to approve, exceptionally grant indefinite leave to remain outside of the Immigration Rules

This need for authorisation by senior executive officer level caseworkers and a grant outside the Rules means that there is clearly not a Covid / pandemic policy applicable to Tier 1 (Entrepreneurs) which would enable standard level caseworkers to make decisions in a timely manner.

As many other immigration categories (Appendix Skilled Worker, Appendix Representative of an Overseas Business, Appendix Global Talent, Appendix Innovator, Appendix T2 Minister of Religion, Appendix International Sportsperson, Appendix UK Ancestry, Appendix Domestic Worker in a Private Household, Appendix T5 (Temporary Worker) International Agreement Worker, and Appendix Hong Kong British National (Overseas)) are covered by the new Appendix determining the rules relevant for settlement, (Appendix Continuous Residence) it remains to be seen why the UK's Tier 1 Entrepreneurs have not similarly been recognised as persons possibly affected by the pandemic.

Given that the deadlines for extensions and ILR applications for Tier 1 (Entrepreneurs) preclude them simply extending their leave to get to a five year period where they meet the continuous residence requirement, it does not seem fair that businesspersons are penalised and only able to be granted ILR on an exceptional basis outside the Rules, while other categories of applicants can have a far greater level of certainty in their route to ILR.

The uncertainty is of course compounded by the fact that this Guidance is only guidance - it is not part of the Immigration Rules and is subject to unpredictable change.

The Rules in CR2.3 (which do not apply to Tier 1 (Entrepreneurs)) are clear and include specific reference to pandemics, and lead to a grant of ILR under the Immigration Rules, rather than outside on an exceptional basis, so those covered by Appendix Continuous Residence, such as Skilled Workers, Sole Representatives, etc. are able to benefit from this new provision under the Rules:

CR 2.3. When calculating the 180 days in CR 2.1. or CR 2.2. any period spent outside the UK will not count towards the 180-day limit if the absence was for any of the following reasons:

  1. the applicant was assisting with a national or international humanitarian or environmental crisis overseas, providing if on a sponsored route their sponsor agreed to the absence for that purpose; or
  2. travel disruption due to natural disaster, military conflict or pandemic; or
  3. compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or life-threatening illness or death of a close family member; or
  4. research activity undertaken by a Skilled Worker...
  5. research activity undertaken by a person on the Global Talent route ...
  6. research activity undertaken by a person on the Global Talent route...

As yet, we do not have any comparable provision for Entrepreneurs, which feels like an oversight, given there is no policy reason for which businesspersons affected by the pandemic in the UK as Innovators should be able to settle with absences in excess of 180 days due to Covid and businesspersons affected by the pandemic under the now closed category of Tier 1 (Entrepreneur) not similarly have a certain and reliable route to ILR under, rather than outside of, the Immigration Rules.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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