Failure to provide payroll documents will result in Tier 1 Entrepreneur visa extension refusal

The court in the case of R (Khajuria) v SSHD [2019] EWHC 1226 ruled that the failure to provide PAYE documents in the required format would lead to the refusal of entrepreneur's visa extension applications even if the required number of jobs have been created.

One of the main requirement to extend Tier 1 Entrepreneur visa is to create at least two 12-month jobs during initial stay. The applicant, Mrs Khajuria, met this requirement. She created several part time jobs, which were equivalent to two full time positions. Since the salaries of her employees were low, the company did not provide payroll and did not run the PAYE system. Such approach goes in line with the current law in the following circumstances: if an employee receives less than £118 a week, does not receive benefits, pension, and is not employed at a second job. All points applied to Mrs Khajuria.

However, the immigration rules for extending Tier 1 Entrepreneur visa require the applicants to submit printouts of income tax payments (Real Time-Full Payment Submissions). Mrs Khajuria could not provide the same due to the fact that she simply did not operate PAYE system.

Home office refused Mrs Khajuria application based on the absence of Real Time-Full Payment Submissions, despite the fact that the requirement to create two full time jobs was met. In order to remedy her case, Mrs Khajuria issued Judicial Review proceedings claiming that the decision of the immigration officer discriminated against her as a business that is not required to operate the PAYE system. She also noted that the immigration officer had to take into account her circumstances and exercise their discretion.

The judge did not find the signs of discrimination. He also ruled that Mrs Khajuria should submit an application outside the Immigration Rules so that Home Office staff can make decision at their discretion. Since Tier 1 Entrepreneur category is a part of Point Based System, visa officers while making decisions note whether each point of requirements has been fulfilled. If a prescribed information or document is not provided, they are entitled to reject the application.

Now Mrs. Khajuria can either return home to India with her husband and two young children who have been living in the UK since 2009 or submit a new application outside the immigration rules.

We also would like to remind you that the Tier 1 Entrepreneur category is permanently closed for new applications and is only available for extension.

 

Posted in English on May 21, 2019.