Can I Sponsor A Self-employed Worker? How To Ensure Compliance In This Complex Route

The Skilled Worker Route enables individuals to be sponsored by and work for businesses in the UK that hold Skilled Worker sponsor licences. Individuals that hold permission on the Skilled Worker route are able to work in a range of specified roles that meet certain skills and salary requirements to fill 'genuine' vacancies.

To be sponsored as a Skilled Worker requires someone to work for a business that holds a sponsor licence. It is a common misconception that a relationship of employer and employee must be present between the sponsor (business) and the individual whom they wish to sponsor. This is not mandatory; there are circumstances where an individual can be sponsored to work on a self-employed basis for a business.

Self-employment as a Skilled Worker

Within the Immigration Rules 'self-employed' is defined as 'a person who is registered as self-employed with HM Revenue & Customs, or an overseas equivalent, or is employed by a company of which the person is a controlling shareholder'.

In published Home Office sponsor guidance the word 'worker' is used rather than employee, reflecting that both employed and self-employed workers can be sponsored by UK businesses who are sponsor licence holders. Worker is not defined in Immigration Rules, but "work" is, referring back to the definition of "employment":

"Employment" includes paid and unpaid employment, paid and unpaid work placements undertaken as part of a course or period of study, self-employment and engaging in business or any professional activity.

Guidance provides –

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

Where a valid contract for services agreement is in place between the self-employed worker and the sponsoring business, subject to all other requirements of the Skilled Worker route being met, the role may be eligible for sponsorship.

When assigning a Certificate of Sponsorship (CoS) the nature of the relationship between the self-employed worker must be clearly explained. Key to this arrangement is the need to demonstrate that the licensed sponsor has control over the outcomes produced by the worker, and guarantees a level of income from self-employment at or above the going rate for the relevant Standard Occupation Classification Code.

The self-employed sponsorship route is particularly useful to dentists, barristers and private tutors who typically work on a self-employed basis.

For example, it is standard practice for a dentist to be self-employed whilst they work at the same dental practice on a regular basis. The dentist will be able to remain lawfully self-employed and be able to be sponsored by their dental practice as a Skilled Worker once the dental practice registers as a sponsor licence holder and issues them with a Certificate of Sponsorship (CoS) and a valid contract for services agreement.

How to ensure compliance in this complex route

All sponsors have to adhere to sponsor licence compliance duties to avoid Home Office enforcement action – the same compliance duties apply to both sponsors of employed and self-employed Skilled Workers.

Home Office compliance visits – audits undertaken by the Home Office to ensure that the sponsoring business is fulfilling its duties and adhering to the immigration rules – are becoming increasingly common. It is of vital importance that the contracts for services for self-employed workers are correctly signed and kept on file, as these could be required by the Home Office during a compliance visit, in the same way that contracts of employment could be.

Sponsors have a number of responsibilities they must fulfil in order to retain their licence. These include monitoring an individual's working hours, place of work and absences, record-keeping and complying with immigration laws and sponsorship guidance. Regarding right to work checks, published guidance provides that 'where the worker is not your direct employee (for example, if they're self-employed)... you must still carry out these checks (and retain evidence you have done so) if you are a sponsor licence holder and are sponsoring the worker to ensure compliance with your sponsor duties.'

Your sponsor licence compliance should be handled as an ongoing, day-to-day concern to ensure you adhere to the Home Office's immigration rules and regulations. Failure to comply can lead to suspension or revocation of a sponsor licence, which will prove costly and time-consuming to rectify. Latitude Law are able to assist with all areas of UK Sponsor Licence Compliance and Management

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.