This is an interesting solution, and one which many businesses are considering due to the current difficulties in obtaining restricted Certificates of Sponsorship to bring people to the UK. A few days ago I spoke with a company which, when struggling to bring an employee to the UK simply hired her as an independent consultant and was able to benefit from her work. Unfortunately, the company found this was only a short term solution in their case as their consultant didn't feel that she was part of the company but they wanted to bring her to the UK to share her expertise with their existing employees. Despite this, remote working can be a solution to skill shortages in some circumstances but removing the issue of sponsoring work visas can create another, very different, immigration issue.
When you hire someone from outside the EEA as a consultant or freelance developer there may come a time when you want them to come to the UK to meet with you. This is not always straightforward and once someone enters the UK as a visitor there are strict restrictions on what they can do whilst they are here. Businesses that employ workers remotely need to be aware of these as the consequences of breaching the conditions of a visa can be severe.
Getting a visa
I recently wrote about how to obtain a visit visa in the context of visiting Scotland and the same principles apply to business visits: everyone from outside the EEA requires a visa but whether they apply for this in advance of travelling or when they first arrive depends on their nationality.
When someone is entering the UK for business purposes their application is likely to be subject to strict scrutiny as business visitors cannot work in the UK. There is a wide definition of "work" and great care needs to be taken to ensure that the purpose of the visit is adequately explained to the Home Office.
In the past I have seen cases where people entering the UK, when asked why they are here, have said they've "come for work". This has resulted in, at best, a lengthy delay whilst the Immigration Officer considers their case and, at worst, on the person being put on the next plane back to their home country. The Immigration Officers and Entry Clearance Officers, who decide whether someone should be allowed to visit the UK for business purposes have a great deal of discretion and therefore this route always involves a degree of uncertainty.
Businesses that are making use of this route will need to be aware of the risks involved and should take steps to maximise the chances of their consultant being allowed into the country.
What can a visitor do?
The danger of using this route doesn't end when the person enters Scotland, England or Wales. Great care needs to be taken to make sure that they do not breach the consequences of their visit visa whilst they are here.
Business visitors can:
Attend meetings, seminars and interviews;
carry out site visits and inspections;
be briefed on the requirements of a UK customer; and
give a short series of talks, provided these are not a commercial event and will not make a profit.
There are additional permitted activities for employees of connected companies abroad but a freelance consultant is unlikely to fall into this definition and therefore will be subject to quite severe restrictions.
If, whilst they are in the United Kingdom, the person carries out any work for the company no matter how little the Home Office may consider that they have been working illegally. This could result in the company being fined up to £15,000 for the first offence and £20,000 for any subsequent offences. It will also act as a black mark against the individual's immigration history thus making it impossible to obtain a visa in the 12 months after they leave Great Britain and difficult to obtain a visa in the future.
How can businesses minimise risk?
We have advised a number of businesses who operate this model on how to minimise the risk of inadvertently breaching the Immigration Rules. Planning trips carefully, and detailing these in written format, can help individuals obtain their visa and ensure that everyone understands the restrictions imposed on the consultant.
If you would like advice on how to make the most of visitor visas, without breaching the Immigration Rules, or how to deal with skill shortages in your business please get in touch.