Sponsor Duties: Managing Third-Party Work for Skilled Workers
In This Article
1. Sponsor Duties for Contracted Skilled Workers
2. Is Working for Third Parties by a Sponsored Worker Prohibited?
3. How Sponsors Can Retain Control Over Sponsored Workers in Third-Party Contracts
4. Prohibited Third-Party Work: When Sponsorship Is Not Permitted
5. Supplementary Work for Skilled Workers
6. Contact Our Immigration Barristers
7. Frequently Asked Questions
8. Glossary
1. Sponsor Duties for Contracted Skilled Workers
Employers sponsoring migrant workers have onerous sponsor duties to ensure that their employees are undertaking the job which they are sponsored to do. This entails retaining full responsibilities for all of the duties, functions, outcomes and outputs of the job the Skilled Worker is being sponsored for.
However, it is not uncommon for employees to provide services to third parties on a contract basis. Whether it is a healthcare worker partnering with third party clinics for the provision of services, or a consultancy firm offering packages to third party companies, it is important to understand the sponsor duties and responsibilities of a sponsor when its migrant workers are entering into such work arrangements.
2. Is Working for Third Parties by a Sponsored Worker Prohibited?
Sponsored workers are not prohibited from working for third parties as such. The Sponsor will nevertheless need to be careful that the sponsored worker is being employed by the Sponsor to fulfil a contractual obligation to a third party on the Sponsor’s behalf. Any arrangement where the sponsored worker is effectively working for the third party is not permitted, since the Sponsor would no longer have control over the migrant’s work and this this would be a breach of the sponsor duties.
3. How Sponsors Can Retain Control Over Sponsored Workers in Third-Party Contracts
The sponsor duties require that the sponsor remains responsible for the worker’s role at all times. The Sponsor Guidance Part 2 offers some guidance on how to retain control over the duties, functions, outcomes and outputs of one’s migrant workers:
- The third-party contract should outline a defined service / project to be delivered by the migrant worker;
- This service / project should be provided within a certain period of time (i.e. have a specific end date);
- After this service / project has been completed, the migrant worker will stop providing its services to the third party.
As an example, Company A (the Sponsor) is sponsoring Elizabeth as a Software Testing Consultant. Company A enters into a contractual agreement with a third party, Company B, to conduct tests on the software across their company. As part of this contract, they ask Elizabeth to provide consultancy services for Company B. This contract:
- Will commence on 01 March 2025;
- Includes the running of tests on all of Company B’s technology devices, detecting faults and offering solutions;
- Will require Elizabeth to report to Company B’s offices in person two days a week;
- Will conclude on 31 March 2025.
Elizabeth will remain employed by Company A for the duration of this contract. It will remain fully responsible for her duties, functions, outputs and responsibilities, ensuring compliance with their sponsor duties. Company A may therefore sponsor Elizabeth and assign her a Certificate of Sponsorship.
4. Prohibited Third-Party Work: When Sponsorship Is Not Permitted
Migrants may not be sponsored when the Sponsor does not retain full responsibility for all the duties, functions and outcomes or outputs of the job they will be doing, or if either:
- The contractual arrangement effectively amounts to hiring the sponsored migrant out to a third-party organisation who is not sponsoring them to fulfil this role, regardless of whether the role is temporary/permanent, or of any genuine contract between the Sponsor and third party;
- The contractual arrangement requires the sponsored migrant to perform an ongoing routine service or perform an ongoing routine role to a third party organisation which they are not being sponsored by, regardless of the length or nature of this agreement;
As such, it is evident that having a contract which merely states that the Sponsor will retain control over the migrant’s work will not suffice, if they are in effect being hired as an employee to a third party which does not sponsor them.
The Home Office will look beyond the wording of a third party contractual arrangement to determine the true nature of a contract. They are entitled to undertake checks with third parties to assess whether the Sponsor has relinquished full control over all the duties, functions, outputs or outcomes of a migrant worker, or whether they are supplying a sponsored worker to a third party to perform a routine role. If they discover this to be the case, this is a reason for which they will revoke a sponsor licence (Guidance for Sponsors Part 3, Annex C1(x) and (y)).
For example, if the above contractual arrangement between Company A and Company B involved Elizabeth offering software testing consultancy services whenever software issues arise for Company B, this would amount to providing an ongoing routine service or performing an ongoing routine role. As she would effectively be an employee of Company B, and Company B would have control over her duties, functions and outcomes or outputs, Company A would not be permitted to sponsor Elizabeth in this scenario. If Company A already holds a licence, this would lead to it being revoked.
Equally, if the Home Office detects a risk that a company is applying for a sponsor simply to hire out their employees to a third party, they will question the ‘genuineness’ of the business and the vacancy. A Sponsor’s sponsor duties and responsibilities in relation to third-party arrangements are therefore crucial to keep in mind when preparing a sponsor licence application.
5. Supplementary Work for Skilled Workers
Supplementary work is permitted under certain circumstances, and would not be regarded as working for a third party on a contract basis if these requirements are met. Following a rule change on 04 April 2024, the Home Office amended the requirements to make it easier for Skilled Workers to undertake supplementary work. In addition to the job specified on the certificate of sponsorship (CoS), workers can do extra work if it is:
- In a skilled occupation capable of sponsorship;
- No more than 20 hours a week;
- Outside the working hours covered by the CoS.
If you meet the above requirements, you do not need to inform the Home Office before taking on extra work.
6. Contact Our Immigration Barristers
For expert advice and assistance in relation to Sponsor Licence applications and compliance, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
