Employees Furloughed For 12 Months, How This Will Affect A Tier 1 Entrepreneur Extension

2020 was a tough year for us all. And as we proceed to Spring 2021, there are green shoots of positivity and ‘normality’ with the announcement by PM Boris Johnson of a multi-phase plan to lift the Coronavirus restrictions in the UK. For migrants in the UK, the pandemic has added enormous uncertainty, with many having been unable to do what they originally came here for. Some migrant workers have been furloughed or found themselves without a job due to the difficult trading environment.

Investor, entrepreneur, innovator, and start-up visa holders may have found themselves in the difficult position of being unable to execute their plans in the UK as a result of the pandemic. Given the time constraints on visas, any time lost due to COVID-19 may be a blow to the chances of their success. Thankfully, the government has put in place a series of measures and concessions for visa holders in the UK who have been affected by the pandemic. In this article, we will discuss what Tier 1 entrepreneur visa holders can do to extend their stay if their employees have been furloughed.

Can I Extend My Entrepreneur Visa If My Staff Have Been Furloughed For 12 Months?

The government has put in place a specific concession to help existing entrepreneur visa holders in the UK who have been affected by the pandemic. It should be noted that while the entrepreneur is closed for new applications (this has been replaced by the start-up and innovator visas), it is still possible to apply for an extension. The concession is in two parts, as follows:

Changing the employment requirement

The government has had to acknowledge that entrepreneur visa holders are unable to meet their obligations in the same way as they would before the pandemic. As a result of COVID-19, they have temporarily removed the requirement to employ two members of staff for 12 consecutive months. The advice issued by the Home Office states, “You no longer need to employ at least two people for 12 consecutive months. The 12 month period you’re 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”.

Crucially, they have also confirmed that time spent on furlough does count towards time employed; “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”.

Clearly, there are going to be cases where employing staff has not been possible or where staff have not been paid the minimum 80% of their contracted pay. In this case, the second part of the concession applies.

Extending your entrepreneur visa due to COVID-19

Ordinarily, to secure an extension to an entrepreneur visa, the Home Office mandate that the visa holder must have satisfied their initial requirement, as follows:

• Have registered as a director or as self-employed no more than six months after the date you were given permission to stay in the UK under a Tier 1 (Entrepreneur) visa
• Be able to prove you’ve been self-employed, a member of a partnership or working as a director of a business three months before you apply
• Have created at least two full-time jobs that have existed for at least 12 months
• You can continue to support yourself
• You must have invested into one or more UK businesses, either £200,000 in cash or £50,000 in cash (depending on the initial option chosen).

If even with the ability to employ staff for multiple jobs over different months, you are still unable to satisfy the employment requirement, you will be able to extend your visa. The temporary COVID-19 concession for entrepreneur visa holders explains, “If you’ve not been able to employ staff for 12 months by the time your visa expires, you’ll be allowed to extend your stay for a further two years, if you can show:

• you‘ve created at least two jobs by the date you apply
• you’ve been unable to employ staff for 12 months due to coronavirus”.

As such, the onus will be on you to provide enough evidence and information to explain why you have been unable to employ staff for one year due to the pandemic. We recommend not simply stating that the reason is the pandemic; rather, explain in detail precisely why it has prevented you from employing staff for the required period. Explain the timing of the events and how this affected your business. Likewise, if there are any specifics of your business type which made the pandemic more impactful, this might be useful in justifying your extension – e.g. if you are in a sector that was badly hit by lack of trade. It is also important that you apply for your extension before your current visa expires.

When applying for an extension due to COVID-19, your application will be processed in the same manner as a standard extension . Home Office case officers are advised, “Temporary extension applications must be processed in line with standard extension applications, and applicants are expected to meet the financial requirements and score the related attribute points, with an exception for job creation”. For this reason, it is important to check that you still satisfy all of the other requirements for an entrepreneur visa extension.

Wrapping Up

The pandemic has really limited the ability of some entrepreneur visa holders to carry out their initial plans. The temporary extension may offer a lifeline to many who need extra time to make progress with their business and recruitment. Given the high stakes, it can be extremely beneficial to secure professional advice from an immigration Solicitor to assist with your extension application. An immigration Solicitor can verify that you are eligible for the concession and ensure that sufficient documentation and information is provided to satisfy the Home Office caseworker that your application should be approved.