Status override

Status override

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Our Construction Industry client engages a Romanian Carpenter and accordingly conducts the usual status tests. Client decides that the relationship is a contract of services and the individual would be an employee. However, the individuals Home Office residence documentation states that the individual can only undertake activities in the UK on a self employed basis.

Does our client :

Tell the potential recruit that he cannot employ him as he doesnt have the necessary permit or take the view that the Home Office instruction would override the status rules and engage the individual under CIS?

CIS helpline could not help nor the Home Office. If the 2nd option is taken, could a Status review in the future be problem or would a copy of the Home Office residence documentation provide sufficent information to protect the engager.

Surely this is now quite a common problem.
David D

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By User deleted
11th Mar 2009 09:07

No employment
My understanding of these cases it that the person has been given leave to remain in the UK on the basis that they are operating their own business here. Hence self employment rather than employment.

If he fails the status test for self employment he may not take up the work on an employed basis.

I can understand that the CIS people have not got a clue on this one. The Home Office should understand it if you get the correct person. I have found that the general HO people have a poor understanding of the destinction between employment, self employment and being a director of your own company which is employment but from their point of view is far more like self employment.

We had a self employed client who incorporated and the HO accepted this as self employment under his leave to remain conditions.

Without wanting to be political, self employment is seen as supporting yourself and adding to the ecomomic activity of the country where as employment is taking a job someone else might be able to do. So to be here for employment the leave to remain criteria are different. More based around specific skill shortages.

There have been some changes in this area recently so I may be a little out of date.

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