Guns for hire - can a sponsored worker be contracted out to a third party?

A company that holds a Home Office sponsor licence to employ migrant workers would usually only be permitted to sponsor workers who will be working for the company directly. A sponsor is not permitted to ‘hire out’ workers to a third party to fill a temporary or full-time position with that third party. A sponsored migrant worker is also not permitted to undertake contracted work for an ongoing routine position or to provide routine services to a third party.

If the Home Office were to have reasonable grounds to believe sponsored workers were being hired out to third parties that are not the sponsoring company, they may take action against the company which could include revocation of the sponsor licence. If a company has its sponsor licence revoked, this may lead to the curtailment of permission for any migrant workers’ leave to remain and work in the UK. Without a valid licence, all migrant workers will no longer be lawfully employed by the company.

There are limited exceptions to this rule. A prime example is IT consultants who provide services to third-party clients. Crucially, the Home Office would expect to see evidence that the sponsoring company has full responsibility for the duties, functions and outcomes or outputs of the job role the migrant worker will be undertaking to fulfil a contractual obligation. The role with the third party must be provided on a contractual basis and the migrant worker may only provide their services or complete a project for a third party within a certain timescale. The Home Office will also want to confirm that the migrant worker is not being supplied to the third party to undertake a routine role with them. The contract must state an end date by which the service or project must be completed, and must also confirm that the service or project will no longer be managed or continued by the company or any other third party after the contractual end date.  Such a fixed-term contract may be extended.

The Home Office will also assess the genuineness of the vacancy, to confirm the sponsored worker is not being contracted out to a third-party client site solely on the basis the third party does not hold a sponsor licence. This is regardless of the genuineness of the contract between the sponsor and the third party. Where the Home Office considers this to be the case, they may contact the third party to confirm whether the sponsoring company will continue to have responsibility for the duties, functions and outcomes of the sponsored migrant’s role while he is seconded to the third-party client site.

Broadly, employment agencies are not permitted to take advantage of these sponsorship rules, on the basis that they hire out staff without retaining control over the outcomes of the job the worker will undertake. It is possible to see a situation in which this outcome might be avoided; say a supplier of labour provides a chef to a client business, and that chef works to a contract agreed between the parties, it is arguable that this mirrors the situation of the IT professional mentioned above.

Ways to ensure compliance with company’s duties as a sponsor licence holder 

The sponsoring company can take steps to negate the possibility of the Home Office taking action against them if they intend to second migrant workers to a third-party client site.

Initially, when applying for and assigning a Certificate of Sponsorship to a migrant worker the sponsor will need to confirm the work location at the third-party client site. The sponsor will also need to update the migrant worker’s place of work once the contract has ended and the migrant worker returns to the sponsor’s main location and/or branch site confirmed within the Sponsor Management System (SMS). A change of work location must be reported on the SMS within 10 working days of the change.

The sponsoring company must provide a signed copy of the client contract for services and keep the document on file. This will provide evidence in the event of a compliance visit to demonstrate that they are monitoring and reporting on the migrant’s duties, functions, and outcomes of their sponsored role.

This contract for services must confirm the start and end date of the project in question as well as the details of the job the worker has been contracted to do and the fees which will be paid by the third party directly to the company for the work undertaken by the worker.

The sponsor may also consider drafting a letter to the third-party client confirming the main details of the contract for services agreement in place between the two entities. This can help the Home Office in determining the genuineness of the vacancy and why it is required as part of the business aims and objectives to continue developing client relationships.

Latitude Law’s specialist team helps many international businesses & organisations with the sponsorship of workers in the UK. Speak to one of our experts concerning your sponsorship duties, call us now on 0300 131 6767 or complete our enquiry form below and we will get straight back to you.