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Right to work check for employed directors?

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Hi.

For the past few weeks I'm looking for an information on the web if an employed director needs to complete right to work check? I've got few clients who are employed, working and getting salary but they are living outhside the UK and did not applied for the settled status. Should they complete right to work check on themselves? They are classified as office holders, rather than workers, but they are on payroll. Any suggestions? 

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By David Ex
01st Dec 2021 10:19

I’ve never read the rules but this is the detail:

https://www.gov.uk/government/publications/right-to-work-checks-employer...

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By paul.benny
01st Dec 2021 10:28

Although directors are indeed office holders, they can also be employees. As broad brush differentiation, if director has executive duties (ie work in the business day to day), they're likely to be employees.

Your directors may well not have the right to work in the UK. But if they are resident in another country and visit the UK infrequently for their business, they're not working in the UK. (bearing in mind that immigration rules are almost certainly different from tax rules).

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Replying to paul.benny:
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By maureenme
01st Dec 2021 12:11

I understand your point of view.
Few times a year they have fly to the UK to make some job from there, directly. In this situation, despite their residence status, they make some job from the UK. So I think they should have right to work to be able to do the job and should have pass right to work check. But as I wrote before, they do not have settled status (or any other document confirming right to work) so they will not pass the check. Am I right? So are they able to work from outside the UK and get UK salary, but if they comes to the UK, they cannot get salary from PAYE? That's all things with right to work is so confusing...

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Replying to maureenme:
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By paul.benny
01st Dec 2021 13:46

Your director may need a visa that allows him/her to work in the UK. The requirements depend on the precise facts - country of citizenship, length and frequency of visits and nature of work being undertaken. If Director is complying with the relevant visa requirements, that's likely to satisfy any employer obligations concerning right to work

https://www.gov.uk/apply-to-come-to-the-uk

That's more or less all my knowledge about immigration. If the gov.uk link doesn't enable you to answer, you need an immigration specialist.

PAYE rules are different but again depend on the precise facts. As a big simplification, if Director doesn't need a working visa, employer probably doesn't need to apply PAYE.

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By philrob
01st Dec 2021 12:27

This might be better phrased if you need to write to HMRC to get a definitive answer as:

"Is a UK company required to deduct PAYE and NI from remuneration paid to a foreign Director who does NOT have the right to work in the UK or should that foreign Director simply invoice the company for their services?"

Then do whatever HMRC have told you to do (make sure there is a written record of the advice).

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