join or take over the business

31
Aug

Tier 1 Entrepreneur (employment)

O-Ono v The Secretary of State for the Home Department [2017] CSOH 107

9 August 2017 oOpinion of Lord Summer

 

Clarification on one of the conditions of stay for the Tier 1 (Entrepreneur) Visa:no employment other than working for the business or businesses that you have established, joined or taken over but working for such business(es) does not include any work you do which is effectively employment with another business’.

 

The petitioner was a Nigerian national and a qualified engineer who studied in the UK, and then applied for permission to remain. He was granted leave until 6 January 2018.

Leave was permitted in a letter under the provisions made for entrepreneurs who wish to establish businesses in the UK. The petitioner was not permitted to “undertake employment other than working for the business(es) you are establishing, joining or taking over”. This wording follows the wording of the Tier 1 (Entrepreneur) Policy Guidance.

This condition does not confine the permission to remain to employment with a single business and acknowledges that in some situations the entrepreneur may start up other businesses in addition to or in substitution for the original business. There is no indication that the businesses must be in the same sector.

In this opinion, Lord Summer reminds that leave can be curtailed where there has been “failure to comply with any conditions attached to the grant of leave to enter or remain”. There is no statutory right of appeal where leave is curtailed, consequently judicial review of the decision is the only remedy available to challenge the curtailment.

The petitioner established a company and through the Company offered his services to the oil and gas sector. However, the petitioner also worked as a security guard for another company and the employment did not entail the provision of expert engineering services. The respondent’s position was that he had breached a condition of his leave to remain and was liable to removal.

The petitioner argued that since the Home Office Guidance permitted the petitioner to commence and run other businesses, he was at liberty to work as a security guard. It was argued that he was not an employee and that he provided his services as an independent contractor trading under a trading name.

However, the petitioner was only permitted to remain in the UK if he was employed with a company which he had “established, joined or taken over” (Policy Guidance A/41). The only business the petitioner claimed to have “established, joined or taken over” was the first Company. He plainly had not “established” or “taken over” the second company.

The question remaining is the definition of ‘joined’. By taking up employment with the second company, could the petitioner be said to have “joined” it? The Policy Guidance is not meant to apply to persons who join a company as a member of staff unless that employment was connected in some way to the investment of skills or capital in the business. The words “established” and “taken over” suggest that a person “joins” a company when he or she becomes e.g. a partner or shareholder in the business with a view to investing in it.

The key is whether the work being done for another business whether as an employee or a self-employed capacity has collateral benefits for or is connected to a business that the petitioner has “established, joined or taken over“. The underlying condition is to determine whether there is genuine entrepreneurial activity.

The employment whatever its form is the same as employment by “another business,” when the person has no control on the business or in which he has no business interest. The Policy Guidance should be clarified on this point which is quite vague.

In this case, Lord Summer decided that the petitioner’s work of security guard was not within the scope of his permission.

 

If you think about applying for a Tier 1 (Entrepreneur) Visa or have questions about corporate or private immigration, please feel free to contact our senior solicitor Pam Barar or our immigration team.

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