Tier 1 Entrepreneur: Working and Contracts for Services
Successful Tier 1 (Entrepreneur) applicants will have their leave granted subject to a number of conditions. One of these conditions is that you cannot work for a business other than your own. The condition states:
‘no employment, other than working for the business or businesses which he has established, joined or taken over, but working for such business(es) does not include anything undertaken by the applicant pursuant to a contract of service or apprenticeship, whether express or implied and whether oral or written, with another business’
In this article we will look at what this condition means for those who are contracting, and what entrepreneurs will need to do to avoid their leave being curtailed or their extension applications being refused.
The Tier 1 (Entrepreneur) policy guidance explains that you can work as a director of your own business or under a contract of service in genuinely self-employed capacity. What is prohibited, however, is work on a self-employed basis which effectively amounts to employment by another business. This will apply whether or not you call yourself self-employed; the Home Office will look at the actual factual basis of the work that you are doing.
In order to establish your employment situation, UKVI will consider the same factors that HMRC use to determine whether you are employed or self-employed. These are set out in full guidance on the HMRC website, but will include matters such as:
- personal service;
- holiday pay, sick pay and pension rights;
- length of engagement;
- intention of the parties.
Therefore, while it is possible to be a self-employed contractor, you must be very careful to ensure that you are genuinely self-employed and your work doesn’t amount to employment by another company.
If you are found to have fallen foul of these rules you will have been in breach of your conditions. This provides a discretionary ground for refusal or curtailment of your leave. This means that normally leave will be curtailed or an extension application will be refused, however, it is not mandatory. You should therefore avoid circumstances where you may be found to have breached your conditions. It will be helpful when it comes to make your extension application to have paperwork for all the work that you have completed, including any contracts for service.
For advice about extending your stay in the UK as a Tier 1 (Entrepreneur) or for ongoing advice and support throughout your period of leave as a Tier 1 (Entrepreneur) please contact our specialist immigration barristers on 0203 617 9173 or firstname.lastname@example.org