Sponsoring a Skilled Worker
on a contract basis:
Key compliance considerations

23 February 2022

Under UK immigration rules, most overseas nationals coming to the UK for work purposes must be sponsored by an employer that holds a valid Home Office sponsor licence.

The most commonly used route for sponsoring overseas workers is the Skilled Worker route. The basic process for sponsoring an overseas worker under the Skilled Worker route consists of the following steps:

• The migrant worker is given a job offer by the sponsoring employer (the job must be on the list of eligible occupations and must meet the specified skill and salary thresholds under the Skilled Worker route).
• The sponsor issues a Certificate of Sponsorship (CoS) to the migrant worker. The certificate contains details of the role offered and the start date.
• The migrant worker must use the unique reference number on the CoS to apply for their Skilled Worker visa within three months of the CoS being issued.
• Once their visa application is approved, the worker can travel to the UK (if they have applied from overseas) and begin work on the specified start date.

Where the Skilled Worker is employed in a permanent position within the business, they must apply to renew their visa when it expires in order to continue working for the sponsor.

But what are the rules when the worker in question will be working on a contract basis, i.e. where the individual is contracted by their employer to provide services for another organisation for a specified period?

The Home Office guidance on sponsoring Workers and Temporary Workers states that contracted workers are eligible for sponsorship under the Skilled Worker route, but there are specific rules that must be met.

Working on a contract basis

The guidance states that where a person is, or will be, working on a contract basis (being supplied as labour by one organisation to another), the sponsor must be whoever has full responsibility for all of the duties, functions and outcomes or outputs of the job the worker will be doing.

If you are the sponsor, and the worker is employed by you to do work for a third party to fulfil a contractual obligation on your behalf, they must be contracted by you to provide a service or project within a certain period of time. This means a service or project which has a specific end date, after which it will have been completed or the service provided will no longer be operated by you or anyone else.

Example:

Company A has a contractual obligation with a client Company Z to deliver an IT solution within an agreed period of time.

A worker who is sponsored by Company A to do a job on the IT project may be sent to work for the length of the contract at Company Z’s premises, but they remain employed by Company A throughout the whole period of the contract.

As Company A is fully responsible for all the worker’s duties, functions, outputs or outcomes, Company A can be the worker’s sponsor and therefore assign the CoS.

When you cannot sponsor a worker on a contract basis

You cannot sponsor a worker if you will not have full responsibility for all of the duties, functions and outcomes or outputs of the job they will be doing. You also cannot sponsor them 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 of length of any arrangement between you and the third party.

Where the Home Office believes you are, or will be, hiring a worker to a third party as routine labour, they may ask for confirmation from the other organisation that the worker will be working independently from them and that you, as the sponsor, have full control over their work.

If you are found to be supplying workers as routine labour to another organisation or that you do not have full responsibility over your sponsored worker’s day-to-day work, the Home Office may revoke your sponsor licence.

What about self-employed workers?

It is possible to sponsor a migrant who will be working on a self-employed basis. However, there must be a genuine contract for employment or services between the sponsor 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.

Advice on sponsor compliance

If you have any questions on sponsoring migrant workers or maintaining compliance as a licensed sponsor, Smith Stone Walters can help.

Our dedicated Sponsor Licencing team can advise your business on all areas of the sponsorship process, from applying for a licence to assessing the eligibility of visa applicants and conducting mock audits of your internal HR processes. To speak to a qualified immigration advisor, please contact us today.

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