Hiring Overseas Agency Workers on Skilled Worker Visas
Can sponsoring employers hire overseas workers on skilled worker visas and then use those sponsored employees as agency workers for third party firms that don’t hold their own sponsor licence? When it comes to hiring staff, your SME business may be under pressure due to staff shortages and orders waiting to be filled, and want to know how flexible the UK points-based immigration system rules are on using overseas agency workers in the UK on skilled worker visas. In this article our immigration solicitors look at whether a business can employ agency workers on skilled worker visas.
UK Online and London Immigration Solicitors and Sponsorship Licence Lawyers
Contractors or agency staff
Hiring overseas workers on skilled worker visas as contractors is possible but Sponsorship Licence lawyers say it is vital that contractors and agency workers are distinguished. Whilst you may be able to hire out a contractor to another firm, if the worker is employed by your business as a sponsored employee working in the UK on a skilled worker visa, you can't use skilled worker visa holders as agency staff.
Consequences of getting the sponsor licence immigration rules wrong
If your business has a sponsor licence and is contracting and supplying workers to other firms you need to ensure you are meeting your sponsor licence obligations and reporting and recording duties. If you are, in effect, an agency hiring out overseas workers then you risk:
- A Home Office compliance audit.
- Suspension of your sponsor licence.
- The imposition of a Home Office action plan to enable you to get your sponsor licence A rating reinstated.
- Not being able to recruit new overseas workers using the skilled worker visa route during the period of your sponsor licence suspension.
- Revocation of your sponsor licence.
- Not being able to apply for a new sponsor licence for at least twelve months because of the twelve-month cooling off period if your sponsor licence is revoked.
If your business model is to hire out sponsored overseas workers who are working in the UK on skilled worker visas, then Sponsorship Licence lawyers say it is crucial to understand the difference between agency workers and contractors.
Can a contractor secure a skilled worker visa?
An individual contractor can get a skilled worker visa provided that:
- Their employer has a sponsor licence to sponsor skilled worker visa applicants and
- The employer has offered them a job and
- The job is on a list of government produced job roles with standard occupation codes and
- The job meets the minimum salary threshold for a skilled worker visa and
- The contractor or worker meets the general eligibility criteria for a skilled worker visa and is able to secure seventy points under the points-based immigration system.
For the employer, sponsoring a contractor is the same process as sponsoring an employee applying for a skilled worker visa, namely:
- Apply for a sponsor licence and
- Allocate a certificate of sponsorship to the overseas job applicant and
- Pay any necessary fees, such as the immigration skills charge and
- Maintain and manage the sponsor licence and meet sponsor licence reporting and recording duties and
- Complete a right to work check on the sponsored employee before the employee commences work.
Sponsoring contractor staff
Sponsorship Licence lawyers say that to meet the immigration rules for the operation of sponsor licence, the sponsoring employer will need to be able to show that:
- They are a sponsoring employer of the contractor and that they are not an employment agency.
- The employment relationship remains between the sponsoring employer and skilled worker visa holder.
- The employer has contracted out the services of the skilled worker visa holder to a third party for a specified period, rather than hired them out as an agency worker on an indefinite basis.
- The sponsoring employer will still comply with their sponsor licence reporting and recording duties by using the sponsor management system.
- The contractor is completing a project rather than assigned indefinitely to work for the third party.
If a UK sponsoring employer is not sure that their arrangement to supply a worker to a third party is an agency relationship or a contractor relationship it is best to speak to specialist Sponsorship Licence lawyers rather than place your sponsor licence at risk.
For example, if a UK employer sponsors a design and development engineer (SOC 2126) and you win a tender and contract to provide design services to a third-party company, the sponsored employee will be working for a time limited period. This is not an ‘agency’ service or the use of the sponsored employee as an agent. However, lines become blurred, if you sponsor an IT business analyst (SOC 2135) and they are on permanent secondment to one third party, rather than completing specific contractor projects with a range of clients.
It is easy for sponsor licence holders to lose sight of the job role contained in a sponsored employee’s certificate of sponsorship, especially when your specialist overseas workers are working at third party premises. That is one of the reasons why it can be helpful for sponsor licence holders to ask Sponsorship Licence lawyers to conduct reviews of their sponsor licence management and conduct audits to ensure the company is fully observant with all the sponsor licence immigration rules and reporting and recording duties.
How can OTS Solicitors help with your sponsor licence?
At London based OTS Solicitors, our specialist business immigration solicitors and Sponsorship Licence lawyers can help you with applying for your sponsor licence as well as providing full audit, training and sponsor licence management services. If you don’t require a full package of sponsor licence support, our Sponsor Licence Solicitors are happy to assist with application advice or step in when you encounter a potential sponsor licence compliance issue that requires prompt attention.
UK Online and London Based Immigration Solicitors and Sponsorship Licence Lawyers