Tier 1 Entrepreneur - ILR

[1954abbas]

Dear Zimba, how are you? I if you remember had recently asked you that how long HO is taking these days to consider ILR applications. Well you did reply to me but I have one more question please in this regard. As you are aware I had applied for ILR on 7 December 2017 under Tier1 Entrepreneur visa with £200k investment. There were 3 applications in total. Myself the main applicant & my wife as dependent. Two more applications of my daughter & my son over 18 so applied separately. We have done our Biometric & have received so far three emails from Home Office on 7 January, February & March saying it is under consideration. I have read that if they have query or any complex questions then they would contact within 12 weeks that is 3 months from the date of submission. I have not received any such QUIERIES or complex questions. Do you think then I might receive such QUIERIES though 3 months have passed & 3 emails have received of under consideration. Do you think then this would be more likely a straightforward application? I know 6 months is service standard. Still seeing others already getting it & mine is bit late so little worried.
Do kindly reply. Many thanks.

[zimba]

Each case is separate and will be decided based on its own merits. You should not be worried as it is not unusual to wait 3 to 6 months. I suggest to wait and see if your get any letters from HO

[1954abbas]

Dear Zimba, I am sending you this message since it is very urgent & kindly needs your attention please. You know that I was waiting for my ILR application decision. Unfortunately today they have refused the same today giving very silly reasons. I have been treated very harshly by the Home Office as mentioned by one of the lawyers I spoke to. The refusal gives reasons:
Statuary Maternity Pay for...... cannot be included in the calculation of hours worked as the employee was not working for you during this period. As you have not demonstrated that you have created the equivalent of two full time jobs you have not been awarded any points with regard to job creation.
Secondly Zimba, the other reason is a total error of case worker. She has mentioned that I have not submitted companies house certificate mentioning I am the director of the company so no points have been awarded. I have submitted original companies house certificate which clearly shows that I have been the director since 21 March 2013 & am the director at the time of the certificate prepared that is 22 November 2017. So a clear negligence on part of the case worker. Please let me have your comments & anyone else may please help me out if possible. Many thanks

[1954abbas]

Dear Zimba I have been given 14 days to apply for AR. Letter is dated 18 March 2018. Now I am consulting a lawyer for putting AR but where I stand?
It is really a BIG SHOCK!!! I have my son doing his uni & my business is fully running. Where I stand?? I am so upset & worried. What happens if my AR God Forbid is rejected. How was it possible for me to sack the lady on SMP? The UK Employment law does not allow at all to sack someone on being pregnant & having a leave. The Home Office is totally silent on this. Moreover a document of Companies House certificate was already sent & a sheer negligence of a caseworker of not looking for is unacceptable. Please tell me what I should do now???

[zimba]

Statuary Maternity Pay for...... cannot be included in the calculation of hours worked as the employee was not working for you during this period. As you have not demonstrated that you have created the equivalent of two full time jobs you have not been awarded any points with regard to job creation.

As I advised the rules on this are not clear. Unfortunately HO seems to be upholding the fact that points only will be awarded for full time work. As your employee was on SMP she was not assumed full time. I think it will be difficult to argue against this. Did you have more employees to claim ?

Secondly Zimba, the other reason is a total error of case worker. She has mentioned that I have not submitted companies house certificate mentioning I am the director of the company so no points have been awarded. I have submitted original companies house certificate which clearly shows that I have been the director since 21 March 2013 & am the director at the time of the certificate prepared that is 22 November 2017. So a clear negligence on part of the case worker. Please let me have your comments & anyone else may please help me out if possible. Many thanks

What did you send ?? It should have been Current Appointment Report, downloaded from companies house online webcheck service.

Dear Zimba I have been given 14 days to apply for AR. Letter is dated 18 March 2018. Now I am consulting a lawyer for putting AR but where I stand?
It is really a BIG SHOCK!!! I have my son doing his uni & my business is fully running. Where I stand?? I am so upset & worried. What happens if my AR God Forbid is rejected. How was it possible for me to sack the lady on SMP? The UK Employment law does not allow at all to sack someone on being pregnant & having a leave. The Home Office is totally silent on this. Moreover a document of Companies House certificate was already sent & a sheer negligence of a caseworker of not looking for is unacceptable. Please tell me what I should do now???

AR will be difficult to argue against the employee on SMP. If you have sent CAR, then that point can be overturned in AR.

[1954abbas]

What is CAR??
You have mentioned it would be difficult to defend employee SMP! What exactly you mean by that? Please elaborate.

[1954abbas]

Zimba, she was in employment since August 2015 & if in September 2016 she is pregnant then as an employee I cannot sack her. It is a clear violation of the UK employment law. Home Office as you know is silent. Moreover if you remember I had asked you this earlier if you kindly check. You had said it is a full time job but being SMP so I must sent it as different hourly job. She was getting a pay from the company & was doing admin work from her place since taking rest in her home.
The lawyers I spoke & they will come back tomorrow say that this has been a very harsh decision. The Home Office is silent on it.
About the company house certificate it was original certificate from company house which clearly mentions when I was appointed the director of the company that is on 21 March 2013 & till the date of the certificate I am still the director of the company that is on 22 November 2017.

[1954abbas]

My dear Zimba, I am attaching the full conversation I had with you on this SMP matter. I am not blaming you at all nor holding you responsible but I strongly feel then this matter is totally untouched by anyone before. It is a silent case. I followed the UK employment laws & which I had to. If Home Office does not mention anything in their guidelines then how they can hold me responsible? It is all about how you present your case in AR. May I attach that detailed conversation we had last year.

[1954abbas]

Thanks for your reply. May I ask you if your employee during the two years of employment goes for SMP i.e. Statuary Maternity Pay, then will this period be considered as a full time job. Indeed I as an employer am paying her SMP & cannot tell her to leave the job if she is pregnant & since she is alreay on full time job. So will HO consider that period of SMP as a full time employed period?
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Re: Tier 1 Entrepreneur - ILRReport this post Quote
Post by zimba88 » Wed Apr 12, 2017 11:33 pm

The rules do not cover this area. You should certainly treat a fully paid leave period as normal working period.
However given that the hourly rate changes during SMP, I suggest to split the full time and maternity leave periods separately, each with their appropriate hourly rate (each period on a new row in the job table on the form)
Advice given based on personal experience and research. I do NOT respond to queries via private messages.
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Re: Tier 1 Entrepreneur - ILRReport this post Quote
Post by 1954abbas » Thu Apr 13, 2017 6:36 am

Thanks Zimba for your super reply. The question is you have mentioned that:

The rules do not cover this area. You should certainly treat a fully paid leave period as normal working period.
However given that the hourly rate changes during SMP, I suggest to split the full time and maternity leave periods separately, each with their appropriate hourly rate (each period on a new row in the job table on the form)

She as you can understand is not coming for the job & as such my accountant calculated her salary as per SMP requirement.
Which is less as you know then the normal full pay which she was getting before SMP. So is it not correct to give her as per SMP calculation?
Do I have to pay her the original full salary when she was not on maternity leave?
Now since last September 2016 she is on SMP. So please tell me what I should do. Many thanks.
Do I have to pay extra to equal it as per her full salary?
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Re: Tier 1 Entrepreneur - ILRReport this post Quote
Post by zimba88 » Thu Apr 13, 2017 9:52 am

Talk to your accountant on how much you HAVE to pay within the law. The Tier 1E rules require you to follow the law !
For your visa purposes, it is simple. If the hourly rate of an employee changes, you MUST enter such period separately on the form. If not, you do NOT need to do anything. So if you are paying the same hourly rate as a full time during maternity leave, you do not need to do anything. Otherwi

[10020132]

EThis is the same argument I was having someone on this forum in another topic that HO is interested in the number of hours WORKED not in the number of hours PAID
So even if you paid for SMP but dhe never worked those hours so they wont be counted. I still think this to be the logic
Moreover when she has her maternity holidays you would have employed someone else to cover up. Isn’t it? You could use the hours of this other person
Now I think the best bet would be hire someone ASAP and file your AR and if your AR gets rejected make a new application and in the meantime you would have earned some more hours so you should be able to overturn the reason for refusal

[1954abbas]

Dear 10020132 for your kind reply. Well I have been paying her for 130 hours monthly. She had joined me from August 2015 & continued till January 2018.
Now as said earlier that Home Office is totally silent on this SMP matter!!! where else the UK Employment law clearly gives full right to pregnant women. How was it possible for me to sack her!!! Indeed she could have taken me to the court. Moreover Home Office as said is silent on this SMP topic. So where I stand???
She started work with me from August 2015. In September 2016 after one year she went on SMP till May 2017 for nine months. During that time she was paid on SMP & she was constantly working for me from her home doing all administrative jobs & contacting customers & marketing job. All by telephone from her house. In the meantime my wife who is also on payroll along with me had taken extra work. Also since our business is seasonal dealing in Spices so there are gaps in business sales. I did hire in busy period another person who worked for 3 months from August 2017 till October 2017.
My lawyers whom I contacted today after seeing the refusal letter stated that this is a very harsh verdict on you by Home office. They strongly believe then we can challenge them sine it very interesting & complex case.
Now how can I apply for a new application? Apply for what visa?? If for the two year extension of Tier1 Entrepreneur then again how I will submit the 2 people in full time job??? How it will work out?? Please help me in understanding. Many many thanks

[1954abbas]

Dear 1002132 & Zimba, please let me know if I apply for 2nd Tier1 extensión then HOW CAN I JUSTIFY THE 2 FULL TIME JOBS?
I have this very problem in my ILR application. Please guide me ASAP. Thanks

[marcnath]

Sorry to hear about the refusal.
I strongly feel that not awarding points for somebody on SMP is wrong.
You should argue in the AR that the immigration requires you to create jobs and irrespective of whether the employee is on SMP or not, the job has existed throughout. And the job itself is over 30 hrs/week based on the records prior to the employee going on maternity. So, it is clear that the job existed throughout and it was a FT job throughout.
Obviously, the law is not very clear on this and the interpretation is up to HO, but I think you have a good chance on AR. I hope you used a different hourly rate in the job table for the maternity period that would have shown her to have still been paid for 30 hrs/week as Zimba had advised earlier.
When you say you have been paying for 130 hrs/month, how was it shown ?

On the Director appointment, the correct document to be submitted was CAR - not sure what document you submitted. However, you can still argue that the CW should have awarded you the points or asked for additional documents based on Section 245AA (d) (iii) which allows for the CW to use information on other documents submitted and/or government website.

I think you have a reasonable chance at overturning the decision but it is difficult to say.

If an AR is unsuccessful, you can apply for your ILR again if you have had two FT job equivalent without including the maternity leave. You can include the period from your last extension grant all they way until now - so hopefully you have enough employment.

[zimba]

As I advised previously, the rules on this are unclear. I strongly believe the fully paid leave MUST be included in the calculations particularly when it is generally part of the employment (e.g paid annual holidays, paid sick days)
The long maternity leave is in my opinion a different issue as the worker's absence is generally long and effectively she does not work for you in that period. However the Tier 2 visa rules for example, treat the period of absence from work on maternity/paternity leave as normal part of the employment. I repeat again that as there are NO CLEAR guideliness on this issue, all the advice given will be suggestions and speculations.
I believe if you paid her full salary as usual without reverting to SMP, you should have been fine.

For the current registration document, I clearly mentioned what you MUST have sent. It is Current Appointment Report (CAR) from companies house as repeated several times now

Your AR should focus on arguing that paid leave (annual holidays, sick days) is part of a normal employment and while it is fair that such periods should be treated as paid employment, why should SMP which is legally required to be paid will be treated differently.

[1954abbas]

Dear Marcnath/Zimba & everyone
Thanks for your last updates. Zimba please could you kindly confirm the details with section... of the T2 referred by you yesterday that maternity/paternity leaves are to be considered as part of the employment. Please put some more points in this regard.
Also please anyone who has more points arguments which I can put in my Administratve Review then PLEASE HELP me out.
Many thanks

[zimba]

https://www.gov.uk/government/uploads/s ... 18__2_.pdf

[Parveenkumar7]

I had asked my accountant about this his response email -

"you must remember that whilst on maternity leave you are still classed as an ‘employee’ of your original employer"

I would refuse to agree with home office decision and seek advice from specialist employment lawyers get a letter from them confirming it is still employment and send it to home office. However it would also be imperative to justify how in her absence her work was handled I.e other employees worked more hours, you worked more etc send this proof and you should be fine. All the best !

[regularuser]

Hi

Did you get a credit back in your payroll from HMRC as SMP credit ?

[seasky]

You have a very curious case and I am glad that the uninsured driving issue was resolved positively.

I agree with the gurus and your lawyers this is harsh and unfair and believe you have a good chance in AR.

BUT stop mentioning that "you could not sack her" that is shooting yourself in the leg. It is true but you could have hired a temporary replacement (and SMP is ridiculously low amount). You had a good few months to prepare for this maternity leave? Also as argued above if you managed for such a long time without her then CW could argue it was not really a needed job? (The overall point of job creation is that hopefully it lasts beyond the minima of the visa route). You took a risk being at the minimum.

Another point to be careful if she worked during her leave even from home she is due full wages for that.

I don't mean to sound harsh except to the point of helping you what will and won't find sympathy with CW and AR team.

[1954abbas]

Dear seasky, many thanks for your brilliant well balanced advice. Just to reply in few words what you have mentioned regarding the minimum period of employment not kept into consideration. This very employee on SMP had worked on full time basis for full one year before she went on maternity leave. When she had joined in August 2015 at that time there was another full time employee working. She (SMP) lady worked along the first employee for six months together. Then after her maternity period ended so she resumed again on full time basis & UP TILL NOW SHE IS WORKING for the company. So she has been in the job for almost THREE YEARS NOW. During her absence I was looking out for suitable candidate to fill the gap & did get a person on full time basis who worked for 3 months but was not up to the required standard.
Further mine is seasonal business & the work load fluctuates a lot. My wife who is also a part time worker became a full time employee of the company. Her wages were NOT INCREASED at all on becoming full time worker. She was & continued on a meager wage of £670 PCM only. Moreover I had a horrific car accident around that period & was hit by a vehicle going at a speed of 100 MPH & my speed was just 5 MPH since had just started after stopping at traffic signal. My Landcruiser had rolled over 3 times on being hit by this high speed vehicle. I was upside down stuck in the vehicle & the emergency had to cut my Landcruiser to get me out. Had a deep sternal fracture & injuries on my neck & shoulders. Was hospitalized & still up till now I am on pain killers & in severe depression. This accident really effected my work & the sales were reduced since I was not able to work. This reduced the work pressure sine the sales were down. Still she continued working on full time basis & up till today she is working when the visa period has passed by. Moreover as mentioned I had another worker for three full months when she was on job. So now how can anyone doubt my intentions? My sincere objective of giving jobs to the settled workers. Please let me have your comments since it is really really helping me a lot. Please see the employees rights website & in particular the maternity side.

[1954abbas]

Just forgot to mention that she joined in August 2015. Worked full time for one year & then in September 2016 she got pregnant & so went on maternity leave. She came back in June 2017 & since then as said earlier is STILL UP TILL TODAY working for the company. So the minimum period has passed by. She has worked for almost 3 years now. So how my sincere intentions should be doubted of not creating employment for settled workers. Another 3 months full time job was created recently. Keeping in mind as mentioned in detail my horrible car accident which has reduced the work & I am trying my best to recover myself & the company after that nightmare. One has to see the sincerity & honesty of a person. Have come to this country putting more then £250,000 in investment, adopting the life, children getting education & serving the economy since they both are now 21 & 23 years of age. Both were born in this country & did their full education from nursery to the university. I was a permanent resident of Spain on Tarjeta de Residencia Permanante. Did not go for Spanish nationality though was there for 30 odd years since there was no dual nationality & I did not wanted to surrender my current nationality. So after all this to be told that you had an employee on SMP so we are refusing your ILR???? Is it fair? Is it the right approach?

[marcnath]

Unfortunately @seasky has a habit of making irrelevant personal opinions without the details of an individual applicant. I don’t think it is done with any bad intentions but just a matter of poor communication.
It is best to ignore and not add to your stress levels.
But given that you had the employee for a long time and even substituted part of maternity with a substitute you potentially had enough employment even excluding the maternity leave period. How short would you be if maternity was disallowed?
Also, the consolation is that even if the AR is unsuccessful, you definitely would have enough jobs for a fresh application

[seasky]

Unfortunately @seasky has a habit of making irrelevant personal opinions without the details of an individual applicant. I don’t think it is done with any bad intentions but just a matter of poor communication.
It is best to ignore and not add to your stress levels.
But given that you had the employee for a long time and even substituted part of maternity with a substitute you potentially had enough employment even excluding the maternity leave period. How short would you be if maternity was disallowed?
Also, the consolation is that even if the AR is unsuccessful, you definitely would have enough jobs for a fresh application

Marcnath, If you read my post I told him two things:

1. that he should not tell AR/CW "he could not sack her because of the law" (has no relevance and OP said it many times)
2. Not to tell AR/CW the he paid someone on maternity leave only SMP when she did much more work (that could open a whole can of worms)

Are you saying he should ignore and say the opposite?

[seasky]

Dear seasky, many thanks for your brilliant well balanced advice. Just to reply in few words what you have mentioned regarding the minimum period of employment not kept into consideration. This very employee on SMP had worked on full time basis for full one year before she went on maternity leave. When she had joined in August 2015 at that time there was another full time employee working. She (SMP) lady worked along the first employee for six months together. Then after her maternity period ended so she resumed again on full time basis & UP TILL NOW SHE IS WORKING for the company. So she has been in the job for almost THREE YEARS NOW. During her absence I was looking out for suitable candidate to fill the gap & did get a person on full time basis who worked for 3 months but was not up to the required standard.
Further mine is seasonal business & the work load fluctuates a lot. My wife who is also a part time worker became a full time employee of the company. Her wages were NOT INCREASED at all on becoming full time worker. She was & continued on a meager wage of £670 PCM only. Moreover I had a horrific car accident around that period & was hit by a vehicle going at a speed of 100 MPH & my speed was just 5 MPH since had just started after stopping at traffic signal. My Landcruiser had rolled over 3 times on being hit by this high speed vehicle. I was upside down stuck in the vehicle & the emergency had to cut my Landcruiser to get me out. Had a deep sternal fracture & injuries on my neck & shoulders. Was hospitalized & still up till now I am on pain killers & in severe depression. This accident really effected my work & the sales were reduced since I was not able to work. This reduced the work pressure sine the sales were down. Still she continued working on full time basis & up till today she is working when the visa period has passed by. Moreover as mentioned I had another worker for three full months when she was on job. So now how can anyone doubt my intentions? My sincere objective of giving jobs to the settled workers. Please let me have your comments since it is really really helping me a lot. Please see the employees rights website & in particular the maternity side.

Abbas, you are clearly under stress (for obvious reasons), you need to take a step back and submit a balanced AR (which many have said, think there is a fair chance of success) without too much emotion as that will not sway the AR team.

Some pointers in no specific order (and high level needs ton of editing)

1. your car accident, if you choose to mention it, remove some of the emotion: "I had a horrible car accident xxxx xxxx but I am proud that while limited in my abilities while recuperating I kept my business alive and going"

2. this is the most important one (and needs refining from others and lawyers "she was my employee before, during and after her maternity leave. During her leave I paid her SMP and called her when needed her help on xxxx, xxxx and she gladly guided me". very important the other points from gurus on how SMP is employment

3. Your children "My children were born here and lived here most of their lives and I am proudly supporting them through uni studies

4. If you paid her £670 even post maternity and she worked the minimum 120/130 hours for a full time that is 5.58/5.15 which is below min wage, unless she is under 20 (but has worked for you for 3 years so I assume not). Now you have passed this stage AR is about SMP but be careful

[1954abbas]

Many thanks for your suggestions. Please note £670 PCM were the wages of my wife who was working on part time & when this employee went on maternity leave so my wife started to give full time to the company. At that time she my wife’s wages were NOT increased but she continued on £670 PCM wages.