Contractors’ Questions: Can I try IT contracting as a Tier 2 migrant?

Contractor’s Question: I’m on a Tier 2 General Visa and would like to start contracting. My current employer is happy to continue my sponsorship and suggests I try contracting in a specialist IT skill for six months.

Firstly, is it legal for me to commence contracting under Tier 2? My current employer will manage my tax and NI (like an umbrella company). If the answer to this question is ‘no,’ how does an umbrella company (who can sponsor), operate? For example, ‘X’ umbrella claims they can act as my brolly while I contract and provide me with a Tier 2 general visa.

Lastly, it seems impossible to find contract work without going via a recruitment agency. Then, the contract would be between the client and agency and then a separate contract between my company (current employer/sponsor or umbrella) and the agency. Is that set-up legal under Tier 2?

Expert’s Answer: Regarding your first question, no, this is not allowed. Where a Tier 2 General migrant is working on a contract basis and is being supplied to one organisation by another organisation, their sponsor must be whoever has full responsibility for the duties, functions and outcomes, or outputs of the job.

An example is where Company A has a contract with a client - Company Z - to deliver an IT solution within agreed timescales. The Tier 2 migrant who is sponsored by Company A to work on that 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 period of the contract. As Company A is fully responsible for their duties, functions, outputs or outcomes, Company A must be the migrant’s sponsor.

Remember; the Sponsor can only assign a Certificate of Sponsorship (CoS) if they have full responsibility for deciding the duties, functions and outcomes or outputs of the job. Where you are carrying out work for a third party on your sponsor’s behalf, you must be contracted by your sponsor to provide a time-bound service or project on their behalf. This means a service or project which has a specific end date, after which it will have ended or the service provided will no longer be operated by the Sponsor or anyone else.

They must not be:

a) Agency workers, hired to a third party to fill a position with them, whether temporary or permanent, regardless of any contract between the sponsor and any employment agency or employment business.

b) Contracted to undertake an ongoing routine role or to provide an ongoing routine service for the third party, regardless of the length of any contract between the sponsor and another party.  If the migrant is self employed there must be a contract for employment/services between the sponsor and the migrant. This contract must show:

  • the names and signatures of all involved (normally, the sponsor  and the migrant);
  • the start and end dates of the contract;
  • details of the job, or piece of work the migrant has been contracted to do;
  • an indication of how much the migrant will be paid.

Where the Home Office thinks that the Sponsor is supplying you to another organisation, they may ask for confirmation from the other organisation, that: a) you work independently and they as the sponsor, has full control over your duties, functions, outputs or outcomes; b) you are not being supplied to undertake a routine role.

The expert was Sana Hussain, a solicitor on the business immigration team at Redfern Legal LLP.

Monday 4th January 2016