What is work? Complying with your visa conditions
Under the Immigration Rules, many people have restrictions on their right to work in the UK. This article will look at some of the main definitions of work used in the Immigration rules in the main work and study based categories and discuss how this will impact people in different situations.
Types of leave and their restrictions:
Tier 1
Tier 1 (Exceptional Talent): no employment as a Doctor or Dentist in Training, and no employment as a professional sportsperson (including as a sports coach).
Tier 1 (Entrepreneur): no employment other than working for the business(es) the applicant 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, and no employment as a professional sportsperson (including as a sports coach).
Tier 1 (Graduate Entrepreneur): no employment as a Doctor or Dentist in Training and no employment as a professional sportsperson (including as a sports coach)
Tier 1 (Investor): no Employment as a Doctor or Dentist in Training, unless the applicant has obtained a primary degree in medicine or dentistry at bachelor’s level or above from a UK institution that is a UK recognised or listed body, or which holds a sponsor licence under Tier 4 of the Points Based System, and no employment as a professional sportsperson (including as a sports coach).
Tier 2
Tier 2 (General): no employment except:
(1) working for the sponsor in the employment that the Certificate of Sponsorship Checking Service records that the migrant is being sponsored to do, subject to any notification of a change to the details of that employment, other than prohibited changes as defined in paragraph 323AA,
(2) supplementary employment,
(3) voluntary work, and
(4) if the applicant is applying as a Tier 2 (Sportsperson) Migrant, employment as a sportsperson for his national team while his national team is in the UK, playing in British University and College Sport (BUCS) competitions and Temporary Engagement as a Sports Broadcaster
Students
Tier 4 (General): no employment except:
(1) employment during term time of no more than 20 (or 10 hours, subject to type of institution, and level of study) hours per week and employment (of any duration) during vacations,
(4) employment as part of a course-related work placement which forms an assessed part of the applicant’s full-time course (subject to restrictions on the length of time of the employment)
(5) employment as a Student Union Sabbatical Officer,
(6) employment as a Postgraduate Doctor or Dentist on a recognised Foundation Programme
(7) employment while waiting for a Tier 2 application to be processed (subject to Tier 4 and Tier 2 Sponsors)
no employment as a Doctor or Dentist in Training unless the course is a recognised Foundation Programme or an application for such a course or a Tier 2 application has been made
No employment as an Entertainer
No employment as a professional sportsperson (including a sports coach)
Tier 5
no employment as a professional sportsperson (including as a sports coach), and no employment as a Doctor or Dentist in Training, unless the applicant has obtained a degree in medicine or dentistry at bachelor’s level or above from a UK institution
no self employment, except where the following conditions are met:
(i) the migrant has no premises which he owns, other than his home, from which he carries out his business,
(ii) the total value of any equipment used in the business does not exceed £5,000, and
(iii) the migrant has no employees.
Sole Representative
Sole Representative of an Overseas business: no employment other than working for the business which the applicant has been admitted to represent.
So what do all these rules actually mean…?
“employment” unless the contrary intention appears, includes paid and unpaid employment, paid and unpaid work placements undertaken as part of a course or period of study, self employment and engaging in business or any professional activity.
So anyone with a restriction or prohibition on their employment has the same restriction on self employment and voluntary work and any business. Meanwhile those who have a restriction on self-employment (e.g. Tier 4 (General) and Tier 5 (Youth Mobility) have less restrictions:
“Self-Employed” means an applicant is registered as self-employed with HM Revenue & Customs, or is employed by a company of which the applicant is a controlling shareholder.
So employment includes self-employment, and self-employment includes both self-employment and being a controlling shareholder in a business.
Basically, no one is permitted to be a professional sportsperson or coach or a doctor or dentist in training, except for those who have been specifically granted leave in the category to do so (this includes investors too).
Other important distinctions to note is that Tier 2 (General) Migrants are specifically permitted to undertake voluntary work, while any one else with a restriction on employment must apply that same restriction to unpaid work as they do to paid work. The Rules do not define voluntary work and there is no clear guidance on expenses etc incurred in voluntary work.
The Rules also do not define what is an ‘entertainer’ and do not explain why a Tier 4 Student cannot be one. This causes some distress for any students studying performing arts subjects at universities and drama schools in the UK. Having asked the Educator’s helpdesk how this will be interpreted, we received the following response:
‘We do not provide definitions of what is meant by this term, but we interpret it as any employment (whether paid or unpaid) involving entertainment activities such as singing, dancing, acting, comedy performances etc, undertaken in a capacity other than as an amateur.’
An “Amateur” is a person who engages in a sport or creative activity solely for personal enjoyment and who is not seeking to derive a living from the activity. This also includes a person playing or coaching in a charity game.
Both Tier 2 (General) migrants and Sole Representatives are limited to working for their sponsoring employer, though the rule is marginally less restrictive for Tier 2 migrants who are able to undertake Supplementary Employment.
Supplementary employment means:
other employment in a job which appears on the Shortage Occupation List in Appendix K, or in the same profession and at the same professional level as that which the migrant is being sponsored to do provided that:
(a) the migrant remains working for the Sponsor in the employment that the Certificate of Sponsorship Checking Service records that the migrant is being sponsored to do,
(b) the other employment does not exceed 20 hours per week and takes place outside of the hours when the migrant is contracted to work for the Sponsor in the employment the migrant is being sponsored to do.
Sole Representatives are not afforded this supplementary employment option.
Similarly Tier 1 (Entrepreneur) migrants can work for any business in the UK as a director or on a self-employed basis (as long as they are not working under anything that would amount to a contract of service) and are not restricted to only the business which they first intended to establish. A Sole Representative is not permitted to change their business/employer once in the UK.
Those interested in the Tier 1 (Graduate Entrepreneur) route may also be interested to know that unlike the ‘full entrepreneur’ counterpart, and despite the name ‘entrepreneur’ in the title, people in this category are permitted to be employed or self employed or both. Someone in this category who later intends to switch into the Entrepreneur category will need to cease employment before switching category.
Do I need to work?
As well as categories that permit work differently, there are also some categories where work (of some description) will be required in order to extend stay or possibly to stop leave being curtailed.
This includes:
- Tier 2 migrants who must work for their sponsor
- Tier 1 (Entrepreneur) migrants who must be genuine entrepreneurs
- Tier 1 (Exceptional Promise/Talent) who must earn some money in their field in order to extend/settle
- Sole Representatives who’s branch/subsidiary must trade
Those who are not required to to any work include:
- Tier 1 (Investor)
- Tier 4 (General) Student
- Tier 1 (Graduate Entrepreneur) (unless you intend to extend for a further year)
- Tier 5 (Youth Mobility)
Contact our immigration barristers
If you would like further advice or information about your right to work or switching into a category with a different right to work, then contact our immigration barristers on 0203 617 9173 or via our enquiry form.
