Employment and Immigration Law Update - Lack of flexibility for Tier 1 (Entrepreneur) migrants


25 June 2019

This article looks at the recent case of (Khajuria) v SSHD [2019] EWHC 1226 which demonstrated that there is no obligation on the Secretary of State for the Home Department to exercise discretion in favour of Entrepreneur applicants where they do not meet the notoriously complex Immigration Rules.

The Rules require those seeking further leave to remain as Tier 1 (Entrepreneur) Migrants to provide Real Time Information (RTI) about tax and other deductions transmitted to HM Revenue and Customs (HMRC) by an employer. The claimant’s application was refused because she was unable to provide this payroll information in the exact form required. She argued however that this requirement was unreasonable and unlawful because their business had closed the PAYE scheme and therefore were not required to provide RTI to HMRC.

The High Court disagreed with the claimant and held that this requirement was neither unreasonable nor unlawful, stating that “…although the rule operates in such a way that someone in the position of the Claimant cannot comply with it because she does not operate a PAYE system which involves submission of RTI, that does not make the rule invalid”.

The Tier 1 (Entrepreneur) visa route has been closed to new applicants from 29 March 2019 (and replaced with a new Innovator route), but remaining Entrepreneurs who have until 6 April 2023 to apply for further leave to remain and until 6 April 2025 to apply for indefinite leave to remain (ILR), should ensure they meet all of the Rules before submitting an application for further leave to remain, or ILR.

This article is from the June 2019 issue of Employment and Immigration Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at June 2019.

For further information please contact Clare Hedges or Janice Leggett in our Immigration Team.