The Skilled Worker route requires an individual to work for an organisation with a sponsor licence. It is often assumed that the relationship between the individual and the sponsor must be that of an employee and employer, but in this article, we review the circumstances where an individual can be self-employed.
Working under the Skilled Worker route
The Skilled Worker route allows individuals to work in a specific role that meets the salary and skills criteria and is a ‘genuine vacancy’. They must be sponsored by an organisation in the UK that holds a Skilled Worker sponsor licence.
The sponsoring organisation must undertake a number of duties under the Sponsor Licence guidance, in order to maintain its licence. This includes checking a Skilled Worker’s absences, undertaking Right to Work checks and having responsibility for the duties, functions and outcomes of the role.
Because the relationship between the individual and the sponsor is so close, in order to meet the sponsor duties, an employee and employer relationship is common. However, this is not mandatory.
Self-employment under the Skilled Worker route
The sponsor guidance specifically uses the word ‘worker’ rather than employee, as there is an understanding that a variety of different work relationships can exist under the sponsorship system.
It is set under the guidance that:
If the worker is self-employed, there must be a genuine contract for employment or services between you and the worker. This contract must show:
- the names and signatures of all involved (which must include you and the worker)
- the start and end dates of the contract
- details of the job, or piece of work, the worker has been contracted to do
- how much the worker will be paid
Such a contract can be requested as part of any Home Office compliance visit, and should be kept on file. In addition, when assigning the Certificate of Sponsorship (CoS) the relationship may have to be explained, especially if the sponsor is not ticking the ‘PAYE number’ option.
In our experience, a self-employed arrangement is particularly beneficial to roles such as dentists and barristers and we have also helped a variety of entertainers and artists who are self-employed under the Skilled Worker route.
Compliance duties and self-employed Skilled Workers
The same compliance duties apply to self-employed Skilled Workers as to employed Skilled Workers. Therefore, the sponsor should have systems in place in order to monitor the individual’s absences, ensure their contact details are up to date, note the expiry date of their passport and BRP, as well as comply with the other sponsor duties.
One of the main concerns of the Home Office for self-employed Skilled Workers is whether they are undertaking third party contract work that is not in line with the sponsor guidance. The guidance sets out that:
You cannot sponsor a worker if you will not have full responsibility for all the duties, functions and outcomes or outputs of the job they will be doing, or if:
- the job amounts to the hiring out of the worker to another organisation (third party) who is not the sponsor to fill a position with them, whether temporary or permanent, regardless of any genuine contract between you and the third party; or
- the worker will be contracted to undertake an ongoing routine role or to provide an ongoing routine service for a third party who is not the sponsor, regardless of the nature or length of any arrangement between you and the third party
If there is an intention for the self-employed Skilled Worker to undertake third party work, this can only be done in very specific circumstances, and it may be helpful to seek advice before entering into this type of arrangement.
Self-employed and employed Skilled Workers are allowed to undertake secondary work, in certain circumstances. The Home Office define this as ‘supplementary employment’ and the work must meet all of the following requirements:
- it must be in the same profession and at the same professional level as the work for which the worker’s CoS was assigned or be a job which is in an occupation listed in Appendix Shortage Occupation List – if the occupation is later removed from the list of shortage occupations, the worker must finish that employment
- it must be for no more than 20 hours a week; and
- it must take place outside of the normal working hours for which the worker’s CoS was assigned
In general, Skilled Workers are not permitted to establish their own business under this criteria. If the above requirements are breached, the Skilled Worker would not be in compliance with the conditions of their immigration permission. This may cause complications for their current permission and in future immigration applications.
How our Immigration Solicitors can help
We are experienced in advising both employers and individuals in relation to self-employment under the Skilled Worker route and should you require any further information about this or any other aspect of sponsorship, please contact us or complete our enquiry form below.