Guide to the UK Immigration Rules for Employers of Remote Workers

With Brexit and the end of the free movement rights for EU nationals, UK employers are thinking outside the box and questioning whether the recruitment of overseas based remote workers is their way out of the UK recruitment crisis and skills shortage. In this article our immigration solicitors guide UK employers on the immigration rules for employing overseas based remote workers.

UK Online and London Based Immigration Solicitors and Sponsorship Licence Lawyers

For advice on the immigration law and the employment law aspects of hiring overseas workers call the expert London Sponsorship Licence lawyers at OTS Solicitors on 0203 959 9123 or contact us online.

Remote working and the law

Immigration and employment law solicitors say the recruitment of remote workers isn’t something UK employers should rush into. Nor should a UK employer agree to existing employees continuing to work remotely without first actively considering and assessing the practical, legal and financial consequences of all or some your existing workforce moving from COVID-19 related working from home to permanent remote working or a hybrid combination of office based and remote working from home.

Every aspect of remote working has to be considered rather than one aspect in isolation. Therefore, immigration solicitors are keen to emphasise that UK immigration law is only one complexity when it comes to the law and remote working. Other areas of law include:

• Employment law – if your business isn’t offering every employee the opportunity to work from home then will employees who are asked to work either from the office or remotely claim discrimination, depending on their work preferences? Do existing employees have a contract of employment specifying their office base? How will your employment policies on inductions or career progression need amending if you are changing to full or partial remote working on a long-term basis? If employees are based overseas, how will you meet any UK or country specific health and safety requirements and will your existing insurance cover be adequate?
• IP law – do your workers use IP? Does your business have an IP licence? Is the licence limited to a number of locations or to locations within the UK or to a limited number of computer terminals? Ignoring IP issues may have been thought a risk worth taking when remote working was seen as a temporary COVID-19 related measure but if you are moving to remote working as long-term recruitment solution then your IP strategy needs to be reviewed and any changes costed. For example, IP licences for each computer station used by a remote worker may make remote working a more expensive option than offering increased salaries to attract UK based office workers or applying for a sponsor licence to enable your business to recruit skilled migrant workers to work in the UK on skilled worker visas.
• Data protection law – data protection can be a minefield even when you are trying to control it within an office environment. Problems can escalate when workers are working from a home based overseas, especially when they are using their own laptop or mobile phone. Are your data protection policies still fit for purpose or do they need to be reviewed if some of your employees are remote working from overseas.
• Contract law and jurisdiction – some UK employers think that if the business is UK based then all matters related to the company employees will therefore be UK based with the UK court having jurisdiction if there is any sort of contractual dispute. That isn’t necessarily the case. An employee with a UK employment contract who is based overseas could potentially invoke the protection of national employment legislation in the overseas country they are working from. Alternatively, if your UK firm has an employed remote worker who is based in India entering into a contract on behalf of the company with a remote worker based in France but working on behalf of their German company employer, then you need to make sure that the jurisdiction clauses in your contracts with third parties are very clear and well drafted.
• Tax law – your business will be used to deducting tax and national insurance contributions from your employees and paying them in sterling. However, if your remote workers are being recruited from overseas and will be based overseas then tax becomes another matter to carefully consider.
• Corporate law – if you are planning a recruitment drive from one overseas country where you hope to create a body of remote workers then you may want to consider setting up an overseas base in that country for cost or tax efficiencies. That may involve looking at your corporate structure and the creation of subsidiaries or branch offices.

Immigration solicitors would not be doing their job if they did not flag up these other areas of law where UK businesses need joined up legal advice from niche business immigration solicitors and Sponsorship Licence lawyers as well as their specialist commercial law advisors. The legal complexities don’t mean that UK businesses should not employ workers remotely from overseas but UK employers should only go into it after fully costing the move to employing remote workers based overseas and the alternatives, such as  overseas recruits working in the UK through sponsored employment on skilled worker visas.

Remote working and immigration law

If you are a UK company recruiting from overseas then the priority question for Sponsorship Licence lawyers is ‘Where will your worker be located and what does their contract of employment say about where the work is based and jurisdiction?’

If your remote worker will be wholly based overseas then you probably won't need a sponsor licence issued by the Home Office to sponsor the worker’s employment as you are not employing the worker to work in the UK. The limitation of that approach to employing overseas workers is that if you need to transfer the overseas worker to the UK to carry out some work for your UK based business (for example, because you have a sudden shortage of UK office-based workers) you won't be able to do that unless your business has an up-to-date Home Office issued sponsor licence. In addition, your overseas based employees will need to meet the eligibility criteria for an intra company transfer visa to transfer their employment from overseas to the UK for the duration of the work visa.

If your remote worker may need to come to the UK on an occasional basis for work related reasons (or their contract of employment says that they are obligated to do so) then the precise terms of the proposed employment contract need to be looked at carefully to see if your business will need to sponsor your remote worker under a sponsor licence and provide them with a certificate of sponsorship. The certificate will then enable the worker to apply for a skilled worker visa at the outset of their employment or, depending on the terms of the employment contract, an intra company transfer visa if the UK based work occurs part way through their contract of employment.

Sponsorship Licence lawyers say that the work and business immigration law answers to the sponsor question depends on the reasons why your overseas based employee needs to come to the UK for work issues or business-related reasons. If the employment contract says that your overseas based employee will be based wholly overseas then the employee may be able to come to the UK, not under the sponsored route of a skilled worker visa or intra company transfer visa, but instead on a business visa under the visitor visa immigration rules.

The difference between a sponsored employee and a worker in the UK on a visitor visa

If your business employs an overseas worker to carry out hybrid remote working in the UK and overseas then you will need to sponsor their employment and they will need to apply for a work visa. As a sponsoring employer you are then under an obligation to comply with all the reporting and recording duties in relation to that sponsored employee.

From the point of view of the employee, the hybrid UK work and remote working may not be ideal if their goal is settlement in the UK because they will not meet the residence requirement for an indefinite leave to remain application even if they have spent five years on a skilled worker visa. That is because of the immigration rules on time spent out of the UK , working remotely from overseas, may exclude them from applying for indefinite leave to remain. Hybrid overseas remote working and work in the UK may therefore not suit either the UK based employer with the requirement for a sponsor licence and compliance with reporting and recording duties or an employee if their goal is to live in the UK.

If your business employs an overseas worker to work remotely from overseas and that is what their contract of employment says then the worker could be asked by the company to come to the UK. Depending on the nationality of the remote worker they may require a visitor visa or business visa to secure UK entry clearance. Obtaining this type of visa doesn’t allow the overseas worker to work for the business during their time in the UK but they would be allowed to conduct what are termed as ‘permissible activities’ under visitor visa rules. These activities include attending training sessions or an interview for a job promotion but would not permit day to day work activities.

Sponsorship Licence lawyers say it is crucial to understand the differences between sponsored employment under either a skilled worker visa or intra company transfer visa and the employment of an overseas worker who is working remotely for a UK company with the occasional need to attend a UK training event or other permissible activity. That is because if a Home Office official thinks that a UK business has flouted the immigration rules on overseas workers this could result in any existing sponsor licence being suspended and revoked or prevent a future successful sponsor licence application. Equally, if an overseas worker is found to be in breach of the immigration rules, then this will be placed on their immigration record making it difficult for them to secure UK entry clearance in future.

Immigration and employment law solicitors say it’s best to take the time to get the legal advice you need so any decision to recruit overseas remote workers don’t have unforeseen consequences for your company or your employees as it is easy to get things wrong without the right specialist advice.

UK Online and London Based Immigration Solicitors and Sponsorship Licence Lawyers  

For advice on hiring workers from overseas or any aspect of immigration law call the immigration team at OTS Solicitors on 0203 959 9123 or contact us online.