Appendix W of the immigration rules: a review by Robert Parkin

Appendix W of the immigration rules: a review by Robert Parkin
April 24, 2019

Appendix W, introduced at the end of March 2019, creates two entirely new categories for leave to enter or remain in the UK to work. They are collectively known as “Workers” and, though it will not necessarily be easy to apply under, this may be very attractive to a number of applicants who can no longer make Tier 1 (Entrepreneur); (General); or (PSW) applications.

In layman’s terms as far as possible, the opportunities and requirements are:

The Start-Up category

This category is “for people seeking to establish a business in the UK for the first time”.

The applicant must have a proposed business idea which they would like, in the future, to run in the UK. The applicant does not need to be the sole founder of the business and may be part of a team.

The applicant must have endorsement from one of the Start-up “endorsing bodies”. They must have provided an “endorsement letter”. The endorsement letter must confirm that the business is “innovative”, “viable”, and “scalable”. This is conceptually similar to a CoS or a CAS and is closely related to the Tier 1 (Graduate Entrepreneur) scheme.

The applicant must be at least 18. They may not be an overstayer (unless the application is made with good reason and within 2 weeks of leave expiring). There must be no general grounds for refusal- see Part 9 of the Rules. They must meet or be exempt from the English language requirements at level B2.

There is a genuineness test- the intended work must be genuine and credible, there must be no intention to breach conditions; any investment must be credible. This is very similar to the old Tier 1 (Entrepreneur) test or Ankara Agreement applications.

Entry clearance can be applied for, or the applicant can switch from Tier 1 (Graduate Entrepreneur); Tier 2; Tier 4 if the sponsor was e.g., a university or large college or an independent school, or a government or international scholarship agency (generally smaller colleges); or as a Visitor (Prospective Entrepreneur). They must have had £945 for each of the main applicant and every dependant for at least 90 days ending not more than 31 days before the applicant.

Leave will be granted for a maximum of two years. This is a lifetime maximum. Any time previously granted as a Start Up or a Tier 1 (Graduate Entrepreneur) will be deducted, i.e. it is not possible to renew leave in this category. It does not lead to settlement (i.e. one cannot apply for indefinite leave to remain) but it is possible to switch to the Innovator category which does.

It is possible for the applicant’s partner (married or living together more than 2 years) or children (under 18) to apply as their dependants.

A person with leave in this category cannot work as a doctor or dentist in training or a professional sportsperson. They will, however, be able to be employed or self-employed without restriction. They will not be eligible to receive public funds. They will be able to study in accordance with paragraph 417 of the Rules- in general, anything below an undergraduate degree. Certain applicants may be obliged to register with the police, usually those who are stateless or from certain specific countries listed in Appendix 2 may be obliged to register with the police, see paragraphs 325-326 of the Rules.

The Innovator Category

This category is for “more experienced businesspeople seeking to establish a business in the UK”.

The applicant must have endorsement from one of the Innovator “endorsing bodies”. They must have provided an “endorsement letter”. This is conceptually similar to a CoS or a CAS and is closely related to the Tier 1 (Graduate Entrepreneur) scheme.

The business must be endorsed as either New or Existing. There are different requirements depending on which applies.

  1. A business must be endorsed as New if this is an application for entry clearance, and an application for an extension relying on a different business plan.
  2. A business must be endorsed as Existing if this is an extension of Innovator leave using the same business plan.
  3. A business may be endorsed as either New or Existing if the application is to switch from Tier 1 (Graduate Entrepreneur) or Start Up using the same business plan.

If this is a New business, the endorsement letter must confirm that the business is “innovative”, “viable”, and “scalable” and that the endorsing body is reasonably satisfied that the applicant “will spend their entire working time in the UK on developing business ventures”.

At least £50,000 must be available to invest in the business, either as confirmed in the Endorsement letter or in proven with documentary evidence. If there is an entrepreneurial team, this must be £50,000 each unless the team members are resident workers (e.g. British citizens). This is similar to, but not the same as, the old Tier 1 (Entrepreneur) rules. There are similar evidential requirements as to the investment funds.

An Existing business must be endorsed as “showing significant achievements”; “registered at Companies House”; “Active and trading”; “sustainable for at least 12 months”; the applicant “has demonstrated an active key role” in the business.

The applicant must be at least 18. They may not be an overstayer (unless the application is made with good reason and within 2 weeks of leave expiring). There must be no general grounds for refusal- see Part 9 of the Rules. They must meet or be exempt from the English language requirements at level B2.

There is a genuineness test- the intended work must be genuine and credible, there must be no intention to breach conditions; any investment must be credible. This is very similar to the old Tier 1 (Entrepreneur) test or Ankara Agreement applications.

Entry clearance can be applied for, or the applicant can switch from Start-Up, Tier 1 (Graduate Entrepreneur); Tier 2; or as a Visitor (Prospective Entrepreneur)- not straight from Tier 4. They must have had £945 for each of the main applicant and every dependant for at least 90 days ending not more than 31 days before the applicant.

Leave will be granted for three years at a time and there is no time limit, a person can apply as many times as they wish. After three years, the person will be able to apply for indefinite leave to remain, but this is subject to strict criteria:

Indefinite leave to remain will be granted if:

  1. The applicant still qualifies for a grant of leave to remain under the Existing business route;
  2. The business meets any two of the following even if very similar:
    1. At least £50,000 has been invested and actively spent.
    2. The number of customers has at least doubled in in the last three years and there are a higher than average number of customers for a business offering comparable services
    3. There has been significant research and development activity and has applied for IP protection in the UK.
    4. There has been turnover of £500,000 with exports of £100,000
    5. There has been turnover of £1,000,000.
    6. The business has created at least 5 full-time jobs for resident workers with an average salary of £25,000.
    7. The business has created at least 10 full-time jobs for resident workers.
  3. they have met the requirements of Appendix KoLL (knowledge of English and life in the UK);
  4. they are applying before the expiry of their leave or with good reason within two weeks of expiry;
  5. there are no general grounds for refusal (e.g. a serious criminal offence- see Part 9 of the Rules);
  6. they have spent the last three years in continuous lawful residence in the UK as an Innovator, meaning that they have not been absent for more than 180 days in any given 12 month period (not necessarily a calendar year) barring exceptional circumstances; and have not been without leave to remain (ignoring applications made within two weeks) during the past three years.

It is as yet unclear, but it appears likely that, alternatively, time in these categories will count towards 10 years residence for the purposes of 276B, so this may plausibly be an alternative and more realistic route to settlement.

A person with leave in this category cannot work as a doctor or dentist in training or a professional sportsperson. They will, however, be able to be employed or self-employed without restriction. They will not be eligible to receive public funds. They will be able to study in accordance with paragraph 417 of the Rules- in general, anything below an undergraduate degree. Certain applicants may be obliged to register with the police, usually those who are stateless or from certain specific countries listed in Appendix 2 may be obliged to register with the police, see paragraphs 325-326 of the Rules.

Related barristers