Decision - Tier 1 Entrepreneur visa refused

[ind8889]

Hi All,

I have received letter from home office today 'Your application leave to remain has been refused'
Below is the reason
A full time job is one involving at least 30 hours a week. Two or more part time jobs that add up to 30 hours a week will count as one full time job, and may score points tables 5 and 6, if both jobs exist for a least 12 months. However, one full time job or more than 30 hours work a week will not count as more than one full time job. If jobs are being combined, the employees being relied upon must be clearly identified by the applicant in their application. Jobs that have existed for less than 12 months cannot be combined together to make up a 12 month period.
Role 1
Employer A - Worked full time 12 or more months or to a total 1,820 hours. This counts as 1 full time job.

Role2
Employer B - Worked part time for 104 hours per month over 12 or more months or to a total of 3,432 hours. This counts as half a job

Employer C - Worked part time for 117 hours per month for 8 months or to a total of 936 hours

Employer D - Worked part time for 60 to 64 per month per month for 5 months or to a total of 304 hours.

As per Employer C and D both worked part time for less than 12 months each, their hours cannot be combined together to make the equivalent of 1 full time job as determined by paragraph 49 of Appendix A of the Immigration rules.

Therefore we are not satisfied that you have created the equivalent of 2 new full time jobs.
In line with Appendix A of the immigration Rules, We have, therefore, been unable to award any points for creation of jobs in the UK.

Could you please suggest me what can i do in this situation????
Thanks in Advance.

[Momi]

When did you apply for extension?
Have you applied your initial application before 6th April 2014?

[marcnath]

What are the start and end dates of the employees?

[zimba]

The decision is correct given you applied for your visa on or after 6 April 2014

[ind8889]

When did you apply for extension?
Have you applied your initial application before 6th April 2014?

Hi,

I have applied my initial application on 22 July 2017

[ind8889]

What are the start and end dates of the employees?

Employee A is full time for 18 months
Employee B is part time 104 hours since 2 years and continuing
Employee C is part time started Nov 2015 and end up in July 2016 with 117 hours
Employee D is part time started April 2015 and continuing

[ind8889]

The decision is correct given you applied for your visa on or after 6 April 2014

Hi,
My initial application is after 6th April 2014

[ind8889]

What are the start and end dates of the employees?

Employee A is full time for 18 months
Employee B is part time 104 hours since 2 years and continuing
Employee C is part time started Nov 2015 and end up in July 2016 with 117 hours
Employee D is part time started April 2015 and continuing

Small correction Employee D started April 2017 and Continuing.

[marcnath]

So unfortunately you filled in the application incorrectly.
Job 2 should have been only employee B
Job 3 should have been employee C and D, which together would have been more than 12 months
Then you should have indicated that you are combining Job 2 and Job 3 in your application.

You can try for an AR explaining that error in the application. If that gets rejected you should be able to do a fresh successful application.

Ensure you have your maintenance funds

[zimba]

This is another case of not understanding that a POSITION/JOB and an EMPLOYEE are not the same. You can only argue this if employee C and D were indeed employed in the same position/job.

[ind8889]

So unfortunately you filled in the application incorrectly.
Job 2 should have been only employee B
Job 3 should have been employee C and D, which together would have been more than 12 months
Then you should have indicated that you are combining Job 2 and Job 3 in your application.

You can try for an AR explaining that error in the application. If that gets rejected you should be able to do a fresh successful application.

Ensure you have your maintenance funds

Hi,

I have clearly mention in application form and created new excel sheet and explained clearly in that Excel sheet. How many works , roles and claiming months and hours.

[ind8889]

This is another case of not understanding that a POSITION/JOB and an EMPLOYEE are not the same. You can only argue this if employee C and D were indeed employed in the same position/job.

I have cleared mentioned in the application
Job 1 : Employee A
Job 2: Employee B, C and D

Clearly mention months , dates , hours and claimed months. Still he refused the visa.

[ind8889]

So unfortunately you filled in the application incorrectly.
Job 2 should have been only employee B
Job 3 should have been employee C and D, which together would have been more than 12 months
Then you should have indicated that you are combining Job 2 and Job 3 in your application.

You can try for an AR explaining that error in the application. If that gets rejected you should be able to do a fresh successful application.

Ensure you have your maintenance funds

Hi,

I have clearly mention in application form and created new excel sheet and explained clearly in that Excel sheet. How many works , roles and claiming months and hours.

I have cleared mentioned in the application
Job 1 : Employee A
Job 2: Employee B, C and D

[zimba]

This is another case of not understanding that a POSITION/JOB and an EMPLOYEE are not the same. You can only argue this if employee C and D were indeed employed in the same position/job.

I have cleared mentioned in the application
Job 1 : Employee A
Job 2: Employee B, C and D

Clearly mention months , dates , hours and claimed months. Still he refused the visa.

An we clearly told you it should have been:

Job 1 : Employee A
Job 2: Employee B
Job 3 : Employee C and D

Where you mark JOB 2 and JOB 3 are being combined
Again you do not understand a JOB/POSITION is not an employee or set of employees. You must have created THREE jobs/positions in order to qualify for award of points as we demonstarted

[marcnath]

Hi,

I have clearly mention in application form and created new excel sheet and explained clearly in that Excel sheet. How many works , roles and claiming months and hours.

I have cleared mentioned in the application
Job 1 : Employee A
Job 2: Employee B, C and D

To reiterate for the purposes of your fresh application and for the benefit of other readers, let me try to explain.

1. You are expected to create the equivalent of TWO full time jobs, each of 12 months.
2. You are allowed to combine MULTIPLE part time jobs to equal one FT job, but each of the part time jobs should last 12 months.
3. VERY IMPORTANT - you need to clearly tell the CW in your application which jobs are to be combined to make up ONE full time job ==> This is the part you missed.
4. A full time equivalent job (NOT Employee) has to have minimum of 30 hrs/week. The job can have more than 30 hrs/week, but the additional hours is ignored for job creation calculation.

Now to your specific case:
While the easiest to address the above is the way I mentioned earlier, looking at this again, there is something I think you can argue for your AR.
You can try arguing that you Job 2 is a Full time JOB (defined as greater than 30 hrs/week) but is filled by two employees.
So, HO should take into account that between Nov 2015 and July 2016, the Job had 221 hours/month (so > 30 hrs/week) for 8 months and between April 2017 and July 2017, the job had about 164 hrs/month.
You have to look at the exact documents you submitted. If the periods above cover 52 weeks, then I think you have a good chance to win your AR. It is something new, but I can't see anything why a Job cannot have more than one employee at the same time. (This only works because your employee C and D did not work at the same time)

[ind8889]

Hi,

I have clearly mention in application form and created new excel sheet and explained clearly in that Excel sheet. How many works , roles and claiming months and hours.

I have cleared mentioned in the application
Job 1 : Employee A
Job 2: Employee B, C and D

To reiterate for the purposes of your fresh application and for the benefit of other readers, let me try to explain.

1. You are expected to create the equivalent of TWO full time jobs, each of 12 months.
2. You are allowed to combine MULTIPLE part time jobs to equal one FT job, but each of the part time jobs should last 12 months.
3. VERY IMPORTANT - you need to clearly tell the CW in your application which jobs are to be combined to make up ONE full time job ==> This is the part you missed.
4. A full time equivalent job (NOT Employee) has to have minimum of 30 hrs/week. The job can have more than 30 hrs/week, but the additional hours is ignored for job creation calculation.

Now to your specific case:
While the easiest to address the above is the way I mentioned earlier, looking at this again, there is something I think you can argue for your AR.
You can try arguing that you Job 2 is a Full time JOB (defined as greater than 30 hrs/week) but is filled by two employees.
So, HO should take into account that between Nov 2015 and July 2016, the Job had 221 hours/month (so > 30 hrs/week) for 8 months and between April 2017 and July 2017, the job had about 164 hrs/month.
You have to look at the exact documents you submitted. If the periods above cover 52 weeks, then I think you have a good chance to win your AR. It is something new, but I can't see anything why a Job cannot have more than one employee at the same time. (This only works because your employee C and D did not work at the same time)

Hi,
Thank you it makes lot of sense and i have one more quick question

In policy guidance it clearly mention
A single job need not consist of 12 consecutive months (for example it could exist for 6
months in one year and 6 months the following year) providing it is the same job
(different jobs that have existed for less than 12 months cannot be combined together
to make up a 12 month period), and the jobs need not exist at the date of application,
provided they have existed for 12 months.

Can i raise this point when i go for AR?

[marcnath]

Hi,
Thank you it makes lot of sense and i have one more quick question

In policy guidance it clearly mention
A single job need not consist of 12 consecutive months (for example it could exist for 6
months in one year and 6 months the following year) providing it is the same job
(different jobs that have existed for less than 12 months cannot be combined together
to make up a 12 month period), and the jobs need not exist at the date of application,
provided they have existed for 12 months.

Can i raise this point when i go for AR?

Why do you want to raise this in your AR ? This criteria had nothing to do with your rejection, HO has not disputed that at all

[ind8889]

Hi,
Thank you it makes lot of sense and i have one more quick question

In policy guidance it clearly mention
A single job need not consist of 12 consecutive months (for example it could exist for 6
months in one year and 6 months the following year) providing it is the same job
(different jobs that have existed for less than 12 months cannot be combined together
to make up a 12 month period), and the jobs need not exist at the date of application,
provided they have existed for 12 months.

Can i raise this point when i go for AR?

Why do you want to raise this in your AR ? This criteria had nothing to do with your rejection, HO has not disputed that at all

Hi,
Thanks for you time and information it is very helpful.
As you said i am not mentioned clearly.

I have mention in Application and separate paper to explain him clearly like below
Job 1
Employee B ( 7 & 5 MONTHS CLAIMING (01/02/2015 to 30/09/15 and 01/04/17 to 31/08/17)) Working from 01/03/2015 to till date
Employee C ( 7 months ( 01/03/15 to 30/09/15))
Employee D ( 5 months ( 01/04/17 to still working)

Job 2
Employee A ( 14 months full time job)
And also mentioned clearly 12 months for Job 1 what i am claiming for??)

HO has send me below reason for refuse
Role 1
Employer A - Worked full time 12 or more months or to a total 1,820 hours. This counts as 1 full time job.

Role2
Employer B - Worked part time for 104 hours per month over 12 or more months or to a total of 3,432 hours. This counts as half a job

Employer C - Worked part time for 117 hours per month for 8 months or to a total of 936 hours

Employer D - Worked part time for 60 to 64 per month per month for 5 months or to a total of 304 hours.

As per Employer C and D both worked part time for less than 12 months each, their hours cannot be combined together to make the equivalent of 1 full time job as determined by paragraph 49 of Appendix A of the Immigration rules.

Therefore we are not satisfied that you have created the equivalent of 2 new full time jobs.
In line with Appendix A of the immigration Rules, We have, therefore, been unable to award any points for creation of jobs in the UK.

Could you please suggest me still how much clear i can explain for AR?

[ind8889]

This is another case of not understanding that a POSITION/JOB and an EMPLOYEE are not the same. You can only argue this if employee C and D were indeed employed in the same position/job.

Hi ,
Employee C and D is in same postion
D replace C but there is a gap after C left the company.
So, i have claimed Employee C 7 months and D 5 months.
But Case worker is not considering this has 12 months that what my understanding.

[marcnath]

The problem is that this job/employee is confusing.
I believe the only reason HO defined it this way is to help the employers. It is impractical to insist that a person should be employed for 12 months - that is not in the control of the employer. So, they defined it as a job, so that if an employee resigns you can hire somebody else and still get the points.
But they have not been expecting that one JOB will have more than one employee at a time - which is what your case is.
As far as the rules are concerned, my personal opinion there should be no problem with that but it is something that is not so straightforward.
As said before, if you had said Job 2 is Employee B and Job 3 is Employee C and D, this would have been approved easily.
The way you put it, it needs the CW to think of all the combinations and they did not.
To their credit, they did try to work the three employees as three different jobs and hence came to the conclusion, which is potentially wrong.
As I said, in the AR, you can argue that ONE job can have TWO employees and together, there is 12 months (52 weeks) of more than 130 hrs/month.
You can and possibly should also argue that Employee C + D can be considered to be Job 3 and together they have more than 12 months as D replaced C.
Put both arguments in you AR. I think you have a very good chance the decision is overturned.
In case it is not, do a fresh application separating B from C and D.

[ind8889]

The problem is that this job/employee is confusing.
I believe the only reason HO defined it this way is to help the employers. It is impractical to insist that a person should be employed for 12 months - that is not in the control of the employer. So, they defined it as a job, so that if an employee resigns you can hire somebody else and still get the points.
But they have not been expecting that one JOB will have more than one employee at a time - which is what your case is.
As far as the rules are concerned, my personal opinion there should be no problem with that but it is something that is not so straightforward.
As said before, if you had said Job 2 is Employee B and Job 3 is Employee C and D, this would have been approved easily.
The way you put it, it needs the CW to think of all the combinations and they did not.
To their credit, they did try to work the three employees as three different jobs and hence came to the conclusion, which is potentially wrong.
As I said, in the AR, you can argue that ONE job can have TWO employees and together, there is 12 months (52 weeks) of more than 130 hrs/month.
You can and possibly should also argue that Employee C + D can be considered to be Job 3 and together they have more than 12 months as D replaced C.
Put both arguments in you AR. I think you have a very good chance the decision is overturned.
In case it is not, do a fresh application separating B from C and D.

Thank you for the information.
If i say Job 2 is Employee B
and Job 3 is Employee C and D
If i combine Job2 and Job3 will there any issue.
What i heard is we can only combine employees not the Jobs, is that right???

[marcnath]

Thank you for the information.
If i say Job 2 is Employee B
and Job 3 is Employee C and D
If i combine Job2 and Job3 will there any issue.
What i heard is we can only combine employees not the Jobs, is that right???

You heard wrong - it is the other way around. You can combine jobs, not employees.
That is the reason your application was rejected and for the same reason, your AR has a chance of rejection.

[ind8889]

Thank you for the information.
If i say Job 2 is Employee B
and Job 3 is Employee C and D
If i combine Job2 and Job3 will there any issue.
What i heard is we can only combine employees not the Jobs, is that right???

You heard wrong - it is the other way around. You can combine jobs, not employees.
That is the reason your application was rejected and for the same reason, your AR has a chance of rejection.

The problem is that this job/employee is confusing.
I believe the only reason HO defined it this way is to help the employers. It is impractical to insist that a person should be employed for 12 months - that is not in the control of the employer. So, they defined it as a job, so that if an employee resigns you can hire somebody else and still get the points.
But they have not been expecting that one JOB will have more than one employee at a time - which is what your case is.
As far as the rules are concerned, my personal opinion there should be no problem with that but it is something that is not so straightforward.
As said before, if you had said Job 2 is Employee B and Job 3 is Employee C and D, this would have been approved easily.
The way you put it, it needs the CW to think of all the combinations and they did not.
To their credit, they did try to work the three employees as three different jobs and hence came to the conclusion, which is potentially wrong.
As I said, in the AR, you can argue that ONE job can have TWO employees and together, there is 12 months (52 weeks) of more than 130 hrs/month.
You can and possibly should also argue that Employee C + D can be considered to be Job 3 and together they have more than 12 months as D replaced C.
Put both arguments in you AR. I think you have a very good chance the decision is overturned.
In case it is not, do a fresh application separating B from C and D.

Thank you for the information.
If i say Job 2 is Employee B
and Job 3 is Employee C and D
If i combine Job2 and Job3 will there any issue.
What i heard is we can only combine employees not the Jobs, is that right???

You heard wrong - it is the other way around. You can combine jobs, not employees.
That is the reason your application was rejected and for the same reason, your AR has a chance of rejection.

When i applied i showed only 2 jobs
For Admin review if i show there is 3 jobs. How he will consider it?
And he may query it why initially 2 jobs and now 3 job roles??

[marcnath]

The problem is that this job/employee is confusing.
I believe the only reason HO defined it this way is to help the employers. It is impractical to insist that a person should be employed for 12 months - that is not in the control of the employer. So, they defined it as a job, so that if an employee resigns you can hire somebody else and still get the points.
But they have not been expecting that one JOB will have more than one employee at a time - which is what your case is.
As far as the rules are concerned, my personal opinion there should be no problem with that but it is something that is not so straightforward.
As said before, if you had said Job 2 is Employee B and Job 3 is Employee C and D, this would have been approved easily.
The way you put it, it needs the CW to think of all the combinations and they did not.
To their credit, they did try to work the three employees as three different jobs and hence came to the conclusion, which is potentially wrong.
As I said, in the AR, you can argue that ONE job can have TWO employees and together, there is 12 months (52 weeks) of more than 130 hrs/month.
You can and possibly should also argue that Employee C + D can be considered to be Job 3 and together they have more than 12 months as D replaced C.
Put both arguments in you AR. I think you have a very good chance the decision is overturned.
In case it is not, do a fresh application separating B from C and D.

Thank you for the information.
If i say Job 2 is Employee B
and Job 3 is Employee C and D
If i combine Job2 and Job3 will there any issue.
What i heard is we can only combine employees not the Jobs, is that right???

You heard wrong - it is the other way around. You can combine jobs, not employees.
That is the reason your application was rejected and for the same reason, your AR has a chance of rejection.

When i applied i showed only 2 jobs
For Admin review if i show there is 3 jobs. How he will consider it?
And he may query it why initially 2 jobs and now 3 job roles??

Which is why I said you should make both arguments.
First showing how what you submitted is correct.
But then, add the other one also to say, if the 1st is not accepted, then HO should still have still considered C and D as a separate job and calculated accordingly.
You have only one AR chance, so the idea is to put as many arguments as you can in that one application.
It is possible they may not accept it, but you don't lose anything by trying.

[ishfaqsangra]

This is another case of not understanding that a POSITION/JOB and an EMPLOYEE are not the same. You can only argue this if employee C and D were indeed employed in the same position/job.

I have cleared mentioned in the application
Job 1 : Employee A
Job 2: Employee B, C and D

Clearly mention months , dates , hours and claimed months. Still he refused the visa.

An we clearly told you it should have been:

Job 1 : Employee A
Job 2: Employee B
Job 3 : Employee C and D

Where you mark JOB 2 and JOB 3 are being combined
Again you do not understand a JOB/POSITION is not an employee or set of employees. You must have created THREE jobs/positions in order to qualify for award of points as we demonstarted

Well explained Zimba .