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PROPOSED IMMIGRATION DIRECTORATE INSTRUCTIONS CHAPTER 6A SECTION 1 – SETTLEMENT – TIER 1 Contents 1 Introduction 2 Forms General Requirements for Indefinite Leave to Remain as a Tier 1 Migrant 3 Knowledge of Language and Life in the UK 4 Criminality 5 Continuous residence requirement Route Specific Requirements 6 Tier 1 (General) 6.1 Requirements for indefinite leave to remain - paragraph 245CD 6.2 Conditions of leave to remain as a Tier 1 (General) Migrant 6.3 Continuous period of five years 6.4 Supporting evidence required 6.5 Applicants affected by the HSMP Forum judicial review judgments 6.6 Granting settlement 7 Tier 1 (Entrepreneur) 7.1 Requirements for indefinite leave to remain - paragraph 245DF 7.2 Conditions of leave to remain as a Tier 1 (Entrepreneur) Migrant 7.3 Specified period of continuous leave 7.4 Supporting evidence required 7.5 Granting settlement 8 Tier 1 (Investor) 8.1 Requirements for indefinite leave to remain - paragraph 245EF 8.2 Conditions of leave to remain as a Tier 1 (Investor) Migrant 8.3 Specified period of continuous leave 8.4 Supporting evidence required 8.5 Granting settlement 9 Tier 1 (Exceptional Talent) 9.1 Requirements for indefinite leave to remain 9.2 Conditions of leave to remain as a Tier 1 (Exceptional Talent) Migrant 9.3 Specified period of continuous leave 9.4 Supporting evidence required 9.5 Granting settlement Annex A – Supporting evidence required Annex B – Calculation of the specified period of continuous leave for settlement

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PROPOSED IMMIGRATION DIRECTORATE INSTRUCTIONS CHAPTER 6A SECTION 1 – SETTLEMENT – TIER 1 Contents 1 Introduction 2 Forms General Requirements for Indefinite Leave to Remain as a Tier 1 Migrant 3 Knowledge of Language and Life in the UK 4 Criminality 5 Continuous residence requirement Route Specific Requirements 6 Tier 1 (General) 6.1 Requirements for indefinite leave to remain - paragraph 245CD 6.2 Conditions of leave to remain as a Tier 1 (General) Migrant 6.3 Continuous period of five years 6.4 Supporting evidence required 6.5 Applicants affected by the HSMP Forum judicial review judgments 6.6 Granting settlement 7 Tier 1 (Entrepreneur) 7.1 Requirements for indefinite leave to remain - paragraph 245DF 7.2 Conditions of leave to remain as a Tier 1 (Entrepreneur) Migrant 7.3 Specified period of continuous leave 7.4 Supporting evidence required 7.5 Granting settlement 8 Tier 1 (Investor) 8.1 Requirements for indefinite leave to remain - paragraph 245EF 8.2 Conditions of leave to remain as a Tier 1 (Investor) Migrant 8.3 Specified period of continuous leave 8.4 Supporting evidence required 8.5 Granting settlement 9 Tier 1 (Exceptional Talent) 9.1 Requirements for indefinite leave to remain 9.2 Conditions of leave to remain as a Tier 1 (Exceptional Talent) Migrant 9.3 Specified period of continuous leave 9.4 Supporting evidence required 9.5 Granting settlement Annex A – Supporting evidence required Annex B – Calculation of the specified period of continuous leave for settlement

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1. Introduction The following guidance is to be used by caseworkers in the assessment of applications for indefinite leave to remain for those with leave to remain in the UK as a Tier 1 (General) Migrant, Tier 1 (Investor) Migrant, Tier 1 (Entrepreneur) Migrant or as a Tier 1 (Exceptional Talent) Migrant. This guidance also covers applicants affected by the HSMP Forum judicial review judgments. Applications for indefinite leave to remain will be decided in line with the rules in place at the time of application. It is the responsibility of the applicant to ensure that they are aware of the rules in place at the time of their application for indefinite leave to remain. This guidance contains five points tables which are reproduced from Appendix A of the Immigration Rules. The tables are referred to by their table numbers within Appendix A.

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A person applying for indefinite leave to remain in any of the categories above must use the specified application form – SET(O).

Click here to go back to Contents General Requirements for indefinite leave to remain as a Tier 1 Migrant Applicants must meet all of the relevant requirements set out in the Immigration Rules to qualify for indefinite leave to remain. In addition to the individual requirements of each migration category within Tier 1 of the Points Based System, applicants are required to meet the general requirements set out in sections 3-5 below.

Click here to go back to Contents 3 Knowledge of Language and Life in the UK Main applicants over the age of 18 and under the age of 65 are required to meet a Knowledge of Language and Life in the UK test. Different arrangements exist for dependants, who can meet this requirement by either passing the Life in the UK test or by gaining an ESOL with Citizenship certificate from an approved provider. Please refer to the Modernised Guidance for Knowledge of Language and Life in the UK for full guidance on this requirement, which is available on the UK Border Agency website: [Add link to revised Knowledge of Life in the UK guidance - submitted to web team 15/3/11]

Click here to go back to Contents 4 Criminality From 6th April 2011 all applications for settlement will be subject to a change to the criminality requirement. The only exemption will be those who are seeking settlement via the ‘protection route’. Please refer to the full criminality guidance for more information [Add link to revised criminality guidance – submitted to web team 15/3/11]

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5 Continuous residence requirement Applicants must meet the requirement on continuous residence in the UK in order to qualify for indefinite leave to remain. The specified period will depend on which route the applicant is applying for indefinite leave to remain under. For information on the specified period required for the Tier 1 migration categories and how to calculate the qualifying period of continuous leave, please see Annex B of this document.

Click here to go back to Contents Route Specific Requirements 6 Tier 1 (General) The Tier 1 (General) category will close to new applications on 6 April 2011. This means that with the exception of those listed below, applicants will no longer be able to apply for leave to enter the UK as a Tier 1 (General) Migrant from overseas, or switch into the category while already in the UK.

Migrants who were granted leave to remain prior to 6 April 2011 as a;

• Tier 1 (General) Migrant, • Highly Skilled Migrant Programme (HSMP); • Writer, Composer or Artist; • or Self Employed Lawyer,

will continue to be able to apply in country for further leave to remain or indefinite leave to remain under Tier 1 (General). In addition to the general requirements for indefinite leave to remain listed sections 3-5 above, applicants for indefinite leave to remain as a Tier 1 (General) Migrant must meet the specific requirements for this route. The full requirements for someone applying for indefinite leave to remain as a Tier 1 (General) Migrant are detailed in Paragraph 245CD of the immigration rules and these are listed below. To qualify for indefinite leave in this capacity, the applicant must meet the requirements listed below. If the applicant does not meet these requirements, the application will be refused.

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6.1 Requirements for indefinite leave to remain – paragraph 245CD:

The requirements are:

(a) The applicant must not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974. (b) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.

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Further information on General Grounds for Refusal is available on the UK Border Agency website at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/general-grounds-refusing/ (c) Unless the application is being made under terms of the HSMP ILR Judicial review Policy Document , the applicant must have spent a continuous period of 5 years Lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 1 (General) Migrant, in any combination of the following categories:

(i) as a Tier 1 (General) Migrant, (ii) as a Highly Skilled Migrant, (iii) as a Work Permit Holder, (iv) as an Innovator, (v) as a Self-Employed Lawyer, (vi) as a Writer, Composer or Artist, (vii) as a Tier 2 (General) Migrant, a Tier 2 (Minister of Religion) Migrant or a Tier 2 (Sportsperson) Migrant, or (viii) as a Tier 2 (Intra-Company Transfer) Migrant, provided the continuous period of 5 years spent lawfully in the UK includes a period of leave as a Tier 2 (Intra-Company Transfer) Migrant granted under the Rules in place before 6 April 2010, or

(d) If the applicant has or has had leave as a Highly Skilled Migrant, a Writer, Composer or Artist, a Self-employed Lawyer or as a Tier 1 (General) Migrant under the rules in place before 19 July 2010, and has not been granted leave in any categories other than these under the rules in place since 19 July 2010, the applicant must have 75 points under paragraphs 7 to 34 of Appendix A. (e) Where the application is being made under terms of the HSMP ILR Judicial review Policy Document, the applicant must have a continuous period of 4 years lawful leave in the UK, of which the most recent must have been spent with leave as a Tier 1 (General) Migrant, in any combination of the following categories:

(i) as a Tier 1 (General) Migrant;

(ii) as a Highly Skilled Migrant;

(iii) as a Work permit Holder; or

(iv) as an Innovator.

(f) Where the application is being made under terms of the HSMP ILR Judicial review Policy Document, the applicant must be economically active in the UK, in employment or self-employment or both.

(g) In all other cases than those referred to in (d) or (e) above, the applicant must have 80 points under paragraphs 7 to 34 of Appendix A.

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(h) The applicant must have sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, with reference to paragraphs 33BA of these Rules, unless the applicant is under the age of 18 or aged 65 or over at the time the application is made or the applicant is applying under the terms of the HSMP ILR Judicial Review Policy Document.

Tier 1 (General) Migrants This section contains two points tables. Applicants will be required to claim either 75 or 80 points from either Table 2 or Table 3, depending on the date of application for their initial grant of leave: • For applications before 6 April 2010 – applicants must score 75 points from Table 2 • For applications between 6 April 2010 and 19 July 2010 – applicants must score 75 points

from Table 3 • For applications after 19 July 2010 – applicants must score 80 points from Table 3. For information on the evidence required to demonstrate that the applicant meets the requirements above, see Annex A (1) of this document. Table 2 – Applications for leave to remain and indefinite leave to remain where the applicant has, or has had, leave as a Highly Skilled Migrant, as a Writer, Composer or Artist, Self-employed Lawyer, or as a Tier 1 (General) Migrant under the rules in place before 6 April 2010, and has not been granted leave in any categories other than these since 6 April 2010

Qualification Points Previous

earnings Points UK

Experience Points Age (at date of application for first grant)

Points

Bachelor's degree*

30 £16,000-£17,999.99**

5 Under 28 years of age

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Master's degree

35 £18,000-£19,999.99 (see paragraph 22 below)

10 28 or 29 years of age

10

£20,000-£22,999.99

15

£23,000-£25,999.99

20

£26,000-£28,999.99

25

£29,000-£31,999.99

30

£32,000-£34,999.99

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PhD 50

£35,000-£39,999.99

40

If £16,000 or more of the previous earnings for which points are claimed were earned in the UK

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30 or 31 years of age

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£40,000 or more

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This table is reproduced from Table 2 of Appendix A of the Immigration Rules. * An applicant will be awarded no points for a Bachelor’s degree if:

(a) his last grant of entry clearance was as a Tier 1 (General) Migrant under the rules in place between 31 March 2009 and 5 April 2010, or

(b) (i) he has had leave to remain as a Tier 1 (General) Migrant under the rules in place

between 31 March 2009 and 5 April 2010, and (ii) his previous entry clearance, leave to enter or leave to remain before that leave was not as a Highly Skilled Migrant, as a Writer, Composer or Artist, as a Self-employed Lawyer, or as a Tier 1 (General) Migrant.

** An applicant will be awarded no points for previous earnings of less than £20,000 if:

(a) his last grant of entry clearance was as a Tier 1 (General) Migrant under the rules in place between 31 March 2009 and 5 April 2010, or

(b) (i) he has had leave to remain as a Tier 1 (General) Migrant under the rules in place

between 31 March 2009 and 5 April 2010, and (ii) his previous entry clearance, leave to enter or leave to remain before that leave was not as a Highly Skilled Migrant, as a Writer, Composer or Artist, as a Self-employed Lawyer, or as a Tier 1 (General) Migrant.

Table 3 – All other applications for leave to remain and indefinite leave to remain as a Tier 1 (General) Migrant

Qualification Points Previous

earnings Points UK

Experience Points Age (at date of application for first grant)

Points

Bachelor's degree

30 £25,000-£29,999.99

5 Under 30 years of age

20

Master's degree

35 £30,000-£34,999.99

15 30 to 34 years of age

10

£35,000-£39,999.99

20

£40,000-£49,999.99

25

£50,000-£54,999.99

30

£55,000-£64,999.99

35

PhD 45

£65,000-£74,999.99

40

If £25,000 or more of the previous earnings for which points are claimed were earned in the UK

5

35 to 39 years of age

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£75,000-£149,999.99

45

£150,000 or more

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This table is reproduced from Table 3 of Appendix A of the Immigration Rules. UK Experience

Previous earnings will not be taken into account for the purpose of awarding points for UK experience if the applicant was not physically present in the UK at the time those earnings were made.

Previous earnings will not be taken into account for the purpose of awarding points for UK experience if the applicant was physically present in the Isle of Man or the Channel Islands at the time those earnings were made.

Age

If the applicant was first granted leave in the categories of Highly Skilled Migrant, Writer, Composer or Artist, Self-employed lawyer or Tier 1 (General) Migrant and has not been granted leave in any category other than those listed here since the first grant of leave, points will be awarded based on the applicant’s age at the date of the application for that first grant of leave. If the applicant has been granted leave since his first grant of leave in a category not listed in this paragraph, points will be awarded based on his age at the date of application for a grant of leave in a category listed in this paragraph where leave has not been granted in any category not listed in this paragraph between that grant of leave and the current application.

Specified documents must be provided as evidence of age.

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6.2 Conditions of leave as a Tier 1 (General) Migrant

One of the requirements that must be satisfied in order to grant indefinite leave to remain is that the applicant does not fall for refusal under the general grounds for refusal

Therefore, in order to qualify for indefinite leave to remain an applicant must not have breached the conditions of the preceding grant of leave to remain. Where an applicant is found to be in breach of those conditions, the application would fall for refusal on general grounds. Further information on General Grounds for Refusal is available on the UK Border Agency website at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/general-grounds-refusing/

Leave to remain under this route is subject to the following conditions:

(i) no recourse to public funds,

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(ii) registration with the police, if this is required by paragraph 326 of these Rules, and (iii) no Employment as a Doctor or Dentist in Training, unless the applicant:

(1) has obtained a primary degree in medicine or dentistry at bachelor's level or above from a UK institution that is a UK recognised or listed body, or which holds a sponsor licence under Tier 4 of the Points Based System; (2) has, or has last been granted, entry clearance, leave to enter or leave to remain that was not subject to any condition restricting them from taking employment as a Doctor in Training, and has been employed during that leave as a Doctor in Training; or (3) has, or has last been granted, entry clearance, leave to enter or leave to remain that was not subject to any condition restricting them from taking employment as a Dentist in Training, and has been employed during that leave as a Dentist in Training,

(iv) no employment as a professional sportsperson (including as a sports coach).

In addition, applicants who are currently on an NHS Foundation Programme or are working as a Doctor or Dentist in Training and were previously granted free access to the labour market (leave granted on Code 1 conditions only) are also not subject to such employment restrictions.

In order to qualify for this exemption the applicant should provide the following evidence in addition to the documents specified in the relevant Tier 1 guidance notes: To prove that they are on the Foundation Programme- a letter from their Postgraduate Dean that satisfies the requirements of the Immigration Directorate Instruction (IDI) on Postgraduate Doctors and Dentists (see in particular page 17 of that IDI) confirming that:

• the applicant has a place on a Foundation Programme; and • the Foundation Programme is recognised by the medical community; and • the place on the Foundation Programme is full time.

To prove that they are working as a Doctor or Dentist in Training- the applicant must provide a letter from the NHS Trust employing them, confirming that they are working in a post/programme that has been approved by the Postgraduate Medical Education and Training Board as a training programme or post.

6.3 Continuous period of five years

Information on how to calculate whether an applicant meets the continuous leave requirement can be found at Annex B.

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6.4 Supporting evidence required

Please refer to Annex A (1) of this document for details of the supporting evidence required for applications for indefinite leave for Tier 1 (General) Migrants.

Click here to go back to Contents 6.5 Applicants affected by the HSMP Forum judicial review judgments

The HSMP Forum Ltd brought two separate judicial reviews against the SSHD.

The first of these was on the grounds that migrants who joined the Highly Skilled Migrant Programme (HSMP) before December 2006 had a legitimate expectation that they would not be affected by any subsequent revisions to the HSMP criteria after they entered the scheme. On 8 April 2008 the High Court ruled in the favour of the HSMP Forum LTD on this point and remedies were published in the HSMP Forum Ltd Judicial Review Policy Document.

The second judicial review was brought on the grounds that the first judgment included ILR and that consequently the remedies put in place after the first High Court ruling should have allowed those HSMP participants who commenced their journey on HSMP prior to 3 April 2006 to gain ILR after four years rather than five. On 6 April 2009 the High Court ruled in favour of the HSMP Forum LTD on this and remedies were published in the HSMP Indefinite Leave to Remain (ILR) judicial review; policy document.

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Consideration of applications covered by the High Court ruling of 6 April 2009

In order to be covered by the High Court ruling an applicant must:

• Have received a HSMP approval letter issued on the basis of an application made on or before 3 April 2006; and

• Have been granted entry clearance or Leave to Remain (LtR) on the basis of that letter.

Where an applicant meets the above criteria their application should be assessed under the following requirements:

a. The migrant has spent a continuous period of four years lawfully in the United Kingdom, of which the most recent period must have been spent with leave as a highly skilled migrant, and the remainder must be made up of leave as a highly skilled migrant, leave as a work permit holder (under paragraphs 128 to 133 of the Immigration Rules), leave as an Innovator (under paragraphs 210A to 210F of the Immigration Rules) or leave as a Tier 1 (General) migrant

b. The migrant applied to enter onto the HSMP before the qualifying period for Indefinite

Leave to Remain (ILR) was increased from four to five years on 03 April 2006, and was successful in that application

c. Throughout the four years spent in the United Kingdom the migrant has been able to

maintain and accommodate himself and any dependants adequately without recourse to public funds

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d. The migrant is lawfully economically active in the United Kingdom in employment, self-employment or a combination of both

In considering whether an application meets the continuous residence requirement, consideration should be given to where leave has been deemed as spent under HSMP by virtue of the first judicial review remedies. This allowed the following periods to be included in any calculation of continuous residence:

• any valid leave obtained prior to the April 2008 judgment; • Tier 1 (General) leave issued under the terms of the HSMP Forum Ltd Judicial Review

Policy document; • the time between the end of the applicant's HSMP leave and the start of the Tier 1

(General) leave issued under the terms of the policy document ; • any valid subsequent leave

Caseworkers will be able to identify those applicants who have been granted Tier 1 (General) leave under the terms of the first policy document by reference to the title of the case type on CID and from the associated case comments. The case type prefix will be Tier 1 (Gateway), for those granted further leave in the UK. Those approved further leave at post overseas under the terms of this policy document can be identified by reference to the case comments on CRS (International Group's database of visa applications). In addition, applicants affected by the judgment have been advised to submit their approval letter issued in light of the High Court judgment with any subsequent application for settlement.

A migrant who does not have current leave as a highly skilled worker will not qualify for ILR as a highly skilled worker and must first successfully apply to be re-instated as a highly skilled worker before they can apply for ILR from that category. Migrants who gain re-instatement under these provisions and, as a result, complete the qualifying period for applying for ILR, will then need to make a separate application for ILR as a Tier 1 (General) Migrant.

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Refusals of applications made under the HSMP Indefinite Leave to Remain (ILR) Judicial Review Policy Document.

Where an application is considered as falling for refusal on one of the HSMP specific criteria, caseworkers should refer the case via their SCW to Employment Policy. This should be done via email to [email protected] providing the following information:

• Applicant’s name: • Reference number (so the application can be identified on GCID): • Reason application is being considered for refusal:

Where the application falls for refusal solely on General Grounds the application can be refused in the usual manner without referring to employment policy.

Consideration of applications covered by the High Court ruling of April 2008

In addition to those covered by the second judgment (detailed above) there is a separate group who applied to enter the HSMP between the change in the ILR Rules in April 2006 and the change in the HSMP extension criteria in November 2006.

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Applicants who fall into this category (and are not included in the second judgment) will still be required to meet the continuous leave requirement as specified in the Immigration Rules (currently 5 years). However, due to the fact that some of this cohort may have spent time not covered by HSMP leave as a direct result of the changes to the extension Rules, the following factors should be considered when calculating continuous residence for this group.

• any valid leave obtained prior to the judgment; • Tier 1 (General) leave issued under the terms of the HSMP Forum Ltd Judicial Review

Policy document; • the time between the end of the applicant's HSMP leave and the start of the Tier 1

(General) leave issued under the terms of the policy document; • any valid subsequent leave

Caseworkers will be able to identify those applicants who have been granted Tier 1 (General) leave under the terms of this policy document by reference to the title of the case type on CID and from the associated case comments. The case type prefix will be Tier 1 (Gateway), for those granted further leave in the UK. Those approved further leave at post overseas under the terms of this policy document can be identified by reference to the case comments on CRS (International Group's database of visa applications). In addition, applicants affected by the judgment have been advised to submit their approval letter issued in light of the High Court judgment with any subsequent application for settlement.

A migrant who does not have current leave as a highly skilled worker will not qualify for ILR as a highly skilled worker and must first successfully apply to be re-instated as a highly skilled worker before they can apply for ILR from that category. Migrants who gain re-instatement under these provisions and, as a result, complete the qualifying period for applying for ILR, will then need to make a separate application for ILR as a Tier 1 (General) Migrant.

6.6 Granting settlement as a Tier 1 (General) Migrant

If all the above requirements have been met, settlement may be granted

Any application for indefinite leave to remain as a Tier 1 (General) Migrant will be subject to the policy in place at the time of the application for indefinite leave to remain.

Click here to go back to Contents 7. Tier 1 (Entrepreneur) Accelerated Route to Settlement From 6 April 2011, Tier 1 (Entrepreneur) Migrants can apply under the provisions for accelerated settlement as outlined in Table 6 below. This means that some applicants will be eligible to apply for indefinite leave to remain after 3 years continuous lawful leave in the UK. The requirements for the accelerated route to settlement are set out in row 3 (a)-(b) of Table 6. For applicants who do not meet the requirements for the accelerated route for settlement, the specified period of continuous leave is 5 years as stated in row 3 (c) of Table 6. Applicants in this group may submit an application for further leave at the end of their initial period of leave to enter or remain.

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In addition to the general requirements for indefinite leave to remain listed sections 3-5 above, applicants for indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant must meet the specific requirements for this route. The full requirements for someone applying for indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant are detailed in Paragraph 245DF of the immigration rules and these are listed below. If the applicant does not meet these requirements, the application will be refused. In addition to the general requirements of the immigration rules, the applicant must have a minimum of 75 points from Table 6 below.

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7.1 Requirements for indefinite leave to remain - paragraph 245DF The requirements are;

(a) The applicant must not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974. (b) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant. (c) The applicant must have a minimum of 75 points under Table 6 below. (d) The applicant must have sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, with reference to paragraph 33BA of these Rules, unless the applicant is under the age of 18 or aged 65 or over at the time the application is made.

Table 6 – Indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant.

Row Investment and business activity Points

1. On a date no earlier than three months prior to the date of application, the applicant was: (a) registered with HM Revenue and Customs as self-employed, or (b) registered a new business in which he is a director, or (c) registered as a director of an existing business.

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2. The applicant has: (a) established a new UK business or businesses that has or have created the equivalent of at least 2 new full time jobs for persons settled in the UK, or (b) taken over or invested in an existing UK business or businesses and his services or investment have resulted in a net increase in the

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employment provided by the business or businesses for persons settled in the UK by creating the equivalent of at least 2 new full time jobs Where the applicant's last grant of entry clearance or leave to enter or remain was as a Tier 1 (Entrepreneur) Migrant, the jobs must have existed for at least 12 months of the period for which the previous leave was granted.

3. The applicant has spent the specified continuous period lawfully in the UK, with absences from the UK of no more than 180 days in any 12 calendar months during that period. The specified period must have been spent with leave as a Tier 1 (Entrepreneur) Migrant, as a Businessperson and/or as an Innovator, of which the most recent period must have been spent with leave as a Tier 1 (Entrepreneur) Migrant. The specified continuous period is: (a) 3 years if the number of new full time jobs created as referred to in row 2 above is at least 10,

(b) 3 years if the applicant has:

(i) established a new UK business that has had an income from business activity of at least £5 million during a 3 year period in which the applicant has had leave as a Tier 1 (Entrepreneur) Migrant, or (ii) taken over or invested in an existing UK business and his services or investment have resulted in a net increase in income from business activity to that business of £5 million during a 3 year period in which the applicant has had leave as a Tier 1 (Entrepreneur) Migrant, when compared to the immediately preceding 3 year period,

or (c) 5 years in all other cases.

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This table is reproduced from Table 6 of Appendix A of the Immigration Rules.

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7.2 Conditions of leave as a Tier 1 (Entrepreneur) Migrant

One of the requirements that must be satisfied in order to grant indefinite leave to remain is that the applicant does not fall for refusal under the general grounds for refusal

Therefore, in order to qualify for indefinite leave to remain an applicant must not have breached the conditions of the preceding grant of leave to remain. Where an applicant is found to be in breach of those conditions, the application would fall for refusal on general grounds.

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Further information on General Grounds for Refusal is available on the UK Border Agency website at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/general-grounds-refusing/

Leave to remain under this route is subject to the following conditions:

(i) no recourse to public funds,

(ii) registration with the police, if this is required by paragraph 326 of the immigration rules, and

(iii) no employment other than working for the business(es) the applicant has established, joined or taken over, and

(iv) no employment as a professional sportsperson (including as a sports coach)

Tier 1 (Entrepreneur) Migrants are permitted to be absent from the United Kingdom for up to 180 days in any 12 calendar months without jeopardising their application for indefinite leave to remain.

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7.3 Specified period of continuous leave

Further information on how to calculate whether an applicant meets the continuous leave requirement, including information on the accelerated route to continuous leave for Tier 1 (Entrepreneur) Migrants, can be found at Annex B of this document.

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7.4 Supporting evidence required

Please refer to Annex A (2) of this document for details of the supporting evidence required for applications for indefinite leave for Tier 1 (Entrepreneur) Migrants.

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7.5 Granting settlement as a Tier 1 (Entrepreneur) Migrant

If all the above requirements have been met, settlement may be granted.

Any application for indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant will be subject to the policy in place at the time of the application for indefinite leave to remain.

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8 Tier 1 (Investor)

Accelerated Route to Settlement

From 6 April 2011, Tier 1 (Investor) Migrants can apply under the provisions for accelerated settlement as outlined in Table 9 below. Under the provisions set out in Table 9. Tier 1 (Investor) Migrants can qualify for indefinite leave to remain after a 2, 3 or 5 year period. The requirements for the accelerated route to settlement are set out in rows 1-3 of Table 9. For applicants who do not meet the requirements for the accelerated route for settlement, the specified period of continuous leave is 5 years. Applicants in this group may submit an application for further leave at the end of their initial period of leave to enter or remain. In addition to the general requirements for indefinite leave to remain listed in sections 3-5 above, applicants for indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant must meet the specific requirements for this route. The full requirements for someone applying for indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant are detailed in paragraph 245EF of the Immigration Rules, and these are listed below. If the applicant does not meet these requirements, the application will be refused.

Applicants who have had leave to remain in the former Investor category

The requirements for indefinite leave to remain as a Tier 1 (Investor) Migrant differ slightly depending on whether the individual’s specified continuous period of leave in the UK was spent:

• fully as a Tier 1 (Investor) Migrant or • most recently as a Tier 1 (Investor) Migrant but prior to that in the former Investor

category.

Further information on General Grounds for Refusal is available on the UK Border Agency website at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/general-grounds-refusing/

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8.1 Requirements for indefinite leave to remain - paragraph 245EF

The requirements are:

(a) The applicant must not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974. (b) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant. (c) The applicant must have a minimum of 75 points under Table 9 below.

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(d) The applicant must have sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, with reference to paragraphs 33BA of these Rules, unless the applicant is under the age of 18 or aged 65 or over at the time the application is made. Table 9: Indefinite leave to remain as a Tier 1 (Investor) Migrant

Row Assets and investment Points

1. The applicant: (a) (i) has money of his own under his control in the UK amounting to not less than £10 million, or (ii)

• owns personal assets which, taking into account any liabilities to

which they are subject, have a value of not less than £20 million, and

• has money under his control and disposable in the UK

amounting to not less than £10 million which has been loaned to him by a UK regulated financial institution,

or (b) (i) has money of his own under his control in the UK amounting to not less than £5 million, or (ii)

• owns personal assets which, taking into account any liabilities to which they are subject, have a value of not less than £10 million, and

• has money under his control and disposable in the UK

amounting to not less than £5 million which has been loaned to him by a UK regulated financial institution,

or (c) (i) has money of his own under his control in the UK amounting to not less than £1 million, or (ii)

• owns personal assets which, taking into account any liabilities to which they are subject, have a value of not less than £2 million, and

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• has money under his control and disposable in the UK

amounting to not less than £1 million which has been loaned to him by a UK regulated financial institution.

2. The applicant has invested not less than 75% of the specified invested amount of his capital in the UK by way of UK Government bonds, share capital or loan capital in active and trading UK registered companies, subject to the restrictions set out in paragraph 65 of Appendix A of the Immigration Rules, and has invested the remaining balance of the specified invested amount in the UK by the purchase of assets or by maintaining the money on deposit in a UK regulated financial institution. The specified invested amount is: (a) £10,000,000 if the applicant scores points from row 1(a) above, (b) £5,000,000 if the applicant scores points from row 1(b) above, or (c) £1,000,000 if the applicant scores points from row 1(c) above.

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3. The applicant has spent the specified continuous period lawfully in the UK, with absences from the UK of no more than 180 days in any 12 calendar months during that period. The specified continuous period must have been spent with leave as a Tier 1 (Investor) Migrant and/or as an Investor, of which the most recent period must have been spent with leave as a Tier 1 (Investor) Migrant. The specified continuous period is: (a) 2 years if the applicant scores points from row 1(a) above, (b) 3 years if the applicant scores points from row 1(b) above, or (c) 5 years if the applicant scores points from row 1(c) above.

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4. The applicant has maintained the full specified invested amount referred to in the relevant part of row 2 throughout the relevant specified continuous period referred to in row 3, other than in the first 3 months of that period and, in relation to time spent with leave as a Tier 1 (Investor) Migrant, has provided specified documents to show that this requirement has been met. When calculating the specified continuous period, the first day of that period will be taken to be the day 3 months before the full specified amount is invested.

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This table is reproduced from Table 9 of Appendix A of the Immigration Rules.

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For row 4 of Table 9 above, the three month period will run from either;

• The date of entry to the United Kingdom in the case of an applicant granted clearance as a Tier 1(Investor) Migrant where there is evidence to establish the applicant’s date of entry to the United Kingdom;

or

• The date of the applicant’s grant of entry clearance, in the case of an applicant granted entry clearance as a Tier 1 (Investor) Migrant where there is no evidence to establish the applicant’s date of entry to the United Kingdom;

or

• The date of the applicant’s grant of leave to remain as a Tier 1 (Investor) Migrant, in any other case except where the applicant has, or was last granted, entry clearance, leave to enter or leave to remain as an Investor.

The exception to the above is for those applicants who were granted in the former Investor category. Applications for indefinite leave to remain in this category only require evidence to demonstrate that the investment is made before the applicant applies to extend their permission to stay.

Consequently, where an applicant has prior leave under the former Investor category, caseworkers should not insist that supporting evidence be provided to cover the full period of this leave and a decision to refuse a case on the non-provision of such documents would not be appropriate. The specified supporting evidence referred to in Annex A(3) of this guidance will however be required to cover the full period of subsequent leave as a Tier 1 (Investor) Migrant.

General guidance on indefinite leave to remain requirements for closed categories can be found within the Modernised Guidance on the UK Border Agency website: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/working/closed-categories/ilr-closed-categories.pdf?view=Binary 8.2 Conditions of leave as a Tier 1 (Investor) Migrant

One of the requirements that must be satisfied in order to grant indefinite leave to remain is that the applicant does not fall for refusal under the general grounds for refusal

Therefore, in order to qualify for indefinite leave to remain an applicant must not have breached the conditions of the preceding grant of leave to remain. Where an applicant is found to be in breach of those conditions, the application would fall for refusal on general grounds. Further information on General Grounds for Refusal is available on the UK Border Agency website at:

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http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/general-grounds-refusing/

Leave to remain under this route is subject to the following conditions:

(i) no recourse to public funds,

(ii) registration with the police, if this is required by paragraph 326 of these Rules, and

(iii) no Employment as a Doctor or Dentist in Training, unless the applicant:

(1) has, or has last been granted, entry clearance, leave to enter or leave to remain that was not subject to any condition restricting them from taking employment as a Doctor in Training, and has been employed during that leave as a Doctor in Training; or (2) has, or has last been granted, entry clearance, leave to enter or leave to remain that was not subject to any condition restricting them from taking employment as a Dentist in Training, and has been employed during that leave as a Dentist in Training Caseworkers should note that applicants who are currently on an NHS Foundation Programme or are working as a Doctor or Dentist in Training and were previously granted free access to the labour market (leave granted on Code 1 conditions only) are also not subject to such employment restrictions. In order to qualify for this exemption the applicant should provide the following evidence in addition to the documents specified in the relevant Tier 1 guidance notes: To prove that they are on the Foundation Programme- a letter from their Postgraduate Dean that satisfies the requirements of the Immigration Directorate Instruction (IDI) on Postgraduate Doctors and Dentists (see in particular page 17 of that IDI) confirming:

• That the applicant has a place on a Foundation Programme; and • The Foundation Programme is recognised by the medical community; and • The place on the Foundation Programme is full time.

To prove that they are working as a Doctor or Dentist in Training- the applicant must provide a letter from the NHS Trust employing them, confirming that they are working in a post/programme that has been approved by the Postgraduate Medical Education and Training Board as a training programme or post.

Tier 1 (Investor) Migrants are permitted to be absent from the United Kingdom for up to 180 days in any 12 calendar months without jeopardising their application for indefinite leave to remain.

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8.3 Qualifying period of continuous leave

Further information on how to calculate whether an applicant meets the continuous leave requirement, including information on the accelerated route to continuous leave for Tier 1 (Investor) Migrants, can be found at Annex B. 8.4 Supporting evidence required

Please refer to Annex A (3) of this document for details of the supporting evidence required for applications for indefinite leave for Tier 1 (Investor) Migrants.

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8.5 Granting settlement as a Tier 1 (Investor) Migrant

If all the above requirements have been met, settlement may be granted.

Any application for indefinite leave to remain as a Tier 1 (Investor) Migrant will be subject to the policy in place at the time of the application for indefinite leave to remain.

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9. Tier 1 (Exceptional Talent) The full requirements for someone applying for indefinite leave to remain under this category are detailed in Paragraph 245BF of the immigration rules and these are listed below. To qualify for indefinite leave in this capacity, the applicant must meet the requirements listed below. If the applicant does not meet these requirements, the application will be refused. 9.1 Requirements for Indefinite Leave to Remain

(a) The applicant must not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974. (b) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant. (c) The applicant must have spent a continuous period of 5 years Lawfully in the UK with leave as a Tier 1 (Exceptional Talent) Migrant. (d) The applicant must have a minimum of 75 points under Table 1 below. (e) The applicant must have sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, with reference to paragraph 33BA of these Rules, unless the applicant is under the age of 18 or aged 65 or over at the time the application is made. (f) The applicant must be economically active in his expert field as previously endorsed by a Designated Competent Body, in employment or self-employment or both.

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Table 1

Criterion Points

The Designated Competent Body which endorsed the applicant’s previous application for entry clearance has not opposed the current application on the grounds that the applicant is not operating in his expert field.

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This table is reproduced from Table 1 of Appendix A of the Immigration Rules 9.2 Conditions of leave as a Tier 1 (Exceptional Talent) Migrant

One of the requirements that must be satisfied in order to grant indefinite leave to remain is that the applicant does not fall for refusal under the general grounds for refusal

Therefore, in order to qualify for indefinite leave to remain an applicant must not have breached the conditions of the preceding grant of leave to remain. Where an applicant is found to be in breach of those conditions, the application would fall for refusal on general grounds.

Further information on General Grounds for Refusal is available on the UK Border Agency website at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/general-grounds-refusing/

Leave to remain will granted subject to the following conditions:

(i) no recourse to public funds, (ii) registration with the police, if this is required by paragraph 326 of these Rules, (iii) no employment as a Doctor or Dentist in Training, and (iv) no employment as a professional sportsperson (including as a sports coach).

9.3 Supporting evidence required

Please refer to Annex A of this document for details of the supporting evidence required for applications for indefinite leave for Tier 1 (Exceptional Talent) Migrants.

9.4 Qualifying period of continuous leave Applicants applying for Indefinite Leave to Remain as Tier 1 (Exceptional Talent) Migrants are required to have completed a qualifying period of 5 years continuous leave to remain entirely in this category.

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9.5 Granting settlement

If all the above requirements have been met, settlement may be granted.

Any application for indefinite leave to remain as a Tier 1 (Exceptional Talent) Migrant will be subject to the policy in place at the time of the application for indefinite leave to remain.

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Annex A – Supporting Evidence Required

[UNDER REVIEW]

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Annex B - Calculation of the qualifying period of continuous leave for settlement

1. Tier 1 (Investor) and Tier 1 (Entrepreneur) Migrants

Applicants who were granted leave to remain as Tier 1 Investors or Entrepreneurs are permitted to be absent from the United Kingdom for up to 180 days in any 12 calendar months without jeopardising their application for indefinite leave to remain.

Tier 1 (Entrepreneur) Migrants can qualify for indefinite leave to remain after 3 or 5 years depending on their level of investment and business activity. To assess which qualifying period applies to applicants under Tier 1 (Entrepreneurs), caseworkers should refer to Table 6 of Appendix A of the Immigration Rules.

Tier 1 (Investor) Migrants can qualify for indefinite leave to remain after 2, 3 or 5 years depending on their level of assets and investments. To assess which qualifying period applies to applicants under Tier 1 (Investors), caseworkers should refer to Table 9 of Appendix A of the Immigration Rules.

2. All other Tier 1 Applications

The specified period of continuous leave for all other Tier 1 applications is 5 years.

2.1 Calculation of the five year period for settlement When assessing if an applicant has met the criteria for 5 years continuous residence in the UK, short absences abroad, for example for holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the UK), may be disregarded, provided the applicant has clearly continued to be based here. 2.2 Applications that fall short of the five year continuous period In some cases, applicants may have been granted 5 years continuous leave, but will not have spent 5 years continuously in the UK before their current leave expires. Caseworkers may count the period between entry clearance being granted and the date the applicant entered the UK towards the 5 years, provided this period was not longer than 3 months. 2.3 Discretion in cases where continuous residence has been broken Time spent here may exceptionally be aggregated, and continuity not insisted upon, for cases where: • there have been no absences abroad (apart from those described in para 5.1 above) and

authorised employment or business here has not been broken by any interruptions of more than three months or amounting to more than six months in total for the whole five year period. Decisions in such cases must be taken at HEO level or above.

or

• there have been longer absences abroad, provided the absences were for compelling grounds either of a compassionate nature or for reasons related to the applicant’s employment or business in the United Kingdom. Where continuous residence has been

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broken, periods may be aggregated or shortfalls disregarded only with the approval of an SEO or Grade 7.

This discretion only applies where the continuity of residence has been broken due to absences abroad. It does not apply where the lawfulness of residence in the UK has been broken, in other words where the applicant has overstayed during the 5 years. When assessing whether an applicant has overstayed, caseworkers must refer to the IDIs, Chapter 1, Section 5: Section 3C and 3D of the Immigration Act 1971 (as amended).

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