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Visa rules confusion forces successful entrepreneurs to leave UK


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In 2011, Russell and Ellen Felber set up the award-winning Torridon Guest House in Inverness. It has hundreds of stellar reviews across TripAdvisor and similar sites. The New Yorkers made their home in the Highlands having fallen in love with the area during a holiday there, initially spending £300,000 to purchase the guesthouse, and a further £100,000 on its refurbishment.

Now the Felbers must leave Scotland and everything they have built. Their application for settlement was refused by the Home Office following an alleged misreading by the couple (and their solicitor) of the requirements of the entrepreneur job creation rules. That decision was upheld last week in Felber & Anor v SSHD [2017] ScotCS CSOH 130 in the Scottish Outer Court of Session.


The Felbers were granted a Tier 1 (Entrepreneur) visa and entered the UK in March 2011. Mr Felber was the main applicant, Mrs Felber his dependant spouse. After the initial period of three years, they applied for an extension of stay and were granted a further two years’ leave.

In February 2016 the couple applied for Indefinite Leave to Remain. This application was refused in August of the same year, a decision upheld following an internal Administrative Review.

The only basis of the refusal was that, during the two-year extension period of his leave, Mr Felber had not satisfied the Tier 1 (Entrepreneur) job creation requirement. The Secretary of State accepted that he had satisfied this requirement during the initial three years.

The job creation requirement

One of the main criteria for those granted leave to enter the UK under the entrepreneur route is that, once they have set up their business, they must create at least two new full-time jobs for persons settled in the UK.

The exact terms of this requirement are set out in the Tier 1 (Entrepreneur) applicant guidance, internal modernised guidance (for caseworkers), and of course the Immigration Rules themselves.

In those rules, until 6 November 2014, the job creation requirement was expressed as follows [Appendix A, Table 6, Row 2]:

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, for all applications on or after 6 November 2014, this provision was amended as follows:

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.

The Felbers had complied with the job creation requirement during the initial period of leave, but hadn’t during the subsequent extension period, not believing this to be necessary.

The case of the moving goalposts

The form on which the Felbers applied for Indefinite Leave to Remain – with the help of experienced lawyers – was SET (O), version 11/15. It asks the same question as that posed in versions 4/2013 and 4/2014:

You have created a new UK business or businesses … and created at least two full time equivalent posts (20 points available). During your period of leave as an Entrepreneur you must have … established a new business or businesses in the UK … You must also have created an aggregate of at least 2 new full time posts for 2 people for at least 12 months each across your business.

This section of the form was amended in April 2016. The new version was in rather different terms:

During your period of leave as an Tier 1 (Entrepreneur), you must have created 2 full time jobs across your business(es). If you created 2 jobs in your initial application, you may use these jobs to claim points for settlement, if they were maintained for at least 12 months during your extension period of leave. Alternatively, if the jobs you created during your initial period of leave no longer exist, you create 2 more in your extension period of leave, and claim points for them – if they exist for at least 12 months.

Here, on the application form updated two months after the Felbers made their application, we see how the provision should be interpreted. Jobs must not only be created during the initial three-year period of leave, but must either continue into the extension period for the required time (12 months each), or be created afresh.

The Felbers appear to have relied on legal advice to the effect that the ‘clarification’ – to create or maintain two employment positions during the extension period – did not apply to them, because they had entered the route before 6 April 2014. The transitional provisions were set out at paragraph 125 of the caseworker guidance at the time:

You have … established a new UK business or businesses that has or have created the equivalent of 2 … new full-time jobs for persons settled in the UK … The jobs must have existed for at least 12 months during your last grant of leave unless you entered the route before 6 April 2014.

The applicant was fortified in his view that the requirement did not apply by the terms of the question on the SET(O) form, as set out above.

Judgment of the court

Lady Carmichael, giving judgment, found otherwise [33]:

both the pre and post-November 2014 rules fall to be construed in the same way. There is no difference in meaning between “the period for which the previous leave was granted” and “that last grant of leave”. If there was any lack of clarity in the unamended rule, it has been removed by the amendment made in November 2014.

Putting it mildly, this is highly contentious.

For someone in the position of Mr Felber, a person making an extension application, the “period for which the previous leave was granted” means the initial three-year period of entrepreneur leave only. It does not mean his current leave.

Lady Carmichael comments further on the transitional provisions [34]:

The transitional provision in paragraph 169 of the guidance concerns only the question of what will be regarded as constituting the two necessary jobs, and not with the period during which the jobs must have existed. Paragraph 215 might suggest otherwise, but only if read in isolation.

The content of the forms were, admittedly, not satisfactory [42]:

The application forms before Version 04/2016 did not fully and accurately reflect the employment condition in the rules. If they were the only sources consulted, it is not difficult to see why an applicant might conclude that the jobs required to exist for 12 months during the whole period of leave, rather than for 12 months during each of the initial period of leave and the extension period. The period is not qualified by reference to a particular grant of leave. The words used are not necessarily inconsistent with a requirement that the jobs exist for 12 months in the extension period, but they do not make that requirement patent… that they should reflect quite so imperfectly the requirements of the rules is unsatisfactory, particularly as the respondent requires that applications be made on particular forms.

But it wasn’t that confusing. The applicant, so finds the court, should have worked harder to make sense of these contradictory provisions by reading the guidance more thoroughly.

A land of opportunity?

If every court judgment is a dish, this is cold porridge.

Even though the court found that the application process had been confusing, that provisions of the rules read in isolation did not mean what they said, and that the form was inadequate and did not fully reflect the requirements of those rules, the decision stands.

There is no recognition of the ramifications for the couple concerned, or those in a similar position, who apparently now require advanced degrees in statutory interpretation in order to complete an application form.

It is a bitter irony that these economy-stoking entrepreneurs, doing in the UK precisely what they were admitted to do, will now return to a country known as the land of opportunity, leaving for no good reason and hobbled only by their incomprehension.

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One Response

  1. There are a lot of T1 Entrepreneurs caught out and being crucified by the Home Office. Business planning takes years, yet the goal posts are moved every few months. Entrepreneurs are contributing to job creation and yet are condemned if the box is not ticked correctly. Entrepreneurs go elsewhere, Britain is not open for business.