An Indian entrepreneur living in the UK on a Tier 1 (Entrepreneur) visa has had her visa extension denied, due to errors within her forms showing employees payroll information.
A core requirement of a successful Tier 1 (Entrepreneur) visa holder is their obligation to create at least 2 jobs in the UK within the business that they set up. This is an essential part of the idea that these types of visas are issued to people in order to benefit the UK’s economy. These jobs must last a minimum of 12 months and must exist during the visa holders’ initial period of leave to remain. Achieving this is essential when applying for an extension of that visa, and the continuation of the business.
In this case the claimant, who we will refer to as Ms K, had fulfilled this requirement. However, the jobs she created were part-time rather than full-time. This is perfectly fine in terms of filling the needs for the extension, but it also meant that the business was not operating under a Pay as You Earn (PAYE) system, meaning that deductions from employees’ wages for income taxes were not automatically recorded. Ms K was supposed to submit printouts herself to prove correct taxes were being paid on the wages he was paying her employees.
As her application was lacking this proof of payroll, her extension was declined, which was obviously extremely shocking and stressful for Ms K considering the otherwise good standing of her application.
What options are available to her?
Ms K went straight for judicial review on the grounds that she has been discriminated against because of the class of her business. Her argument was that if her business had been more lucrative she would have been using a PAYE system and none of these issues would have arisen.
Her second point addressed the lack of discretion used in her case. What is meant by ‘discretion’ here is essentially how the Home Office uses the options available to them in certain situations. Where an applicant has fulfilled all or most of what is asked of them but have lost out on a positive result due to a technicality or because of a factor they were unaware of, they can sometimes be given the benefit of the doubt. This was not the case in for Ms K.
The judge’s viewpoint:
Mr Justice Martin Spencer held on the discrimination argument that Ms K brought up that her complaint is not unique, and she should have made sure that all her forms were in order in spite of not having a PAYE system. He also ruled that for discretion to be exercised, an application for discretionary leave to remain outside the Rules must be made, for which there is a specified form with a specific fee. As no application had been made, no obligation to exercise discretion arose.
Ms K now has a massive choice to make. She can either return home to India with her husband and two young children, having lived in the UK since 2009, or make an application for leave to remain outside of the Rules.
For the whole family the Home Office fees for this application would be £4,132, not including fees for legal assistance, and not including the fees for subsequent extension applications.
So, this is a reminder of the harsh reality of visa approvals and extensions. Everything really has to be perfect for an application to be successful.
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