Entrepreneur visa refused (contract via recruitment agency)

http://www.hmrc.gov.uk/ir35/
please click on the link as this piece of information should clarify all the queries. the reason why contracts via recruitment agencies will not be accepted.

hope this helps.
NB

The Problem is not that we don't understand the reason that the new requirements have been put in place. The issue is that big companies only use Recruitment agency to contract with limited companies, due to various valid reasons. Big companies have their own policies for running their business. Providing services to big company via recruitment agency is the safest way to start a business.

I'm not allowed to read private messages! Lola have you sent me any private messages?

Yes I did, I need full information till date.

Your timeline, services your company render e.t.c

I'm sorry, we are not here to give away any confidential information, and why do you want me to provide you with those information?

That was why I sent you a PM earlier. Accept this as an apology.

Wanted to see how if I can help.

I would appreciate your support, however I would prefer to do it through my solicitor. The only reason I've decided to post here was to get more understanding regarding the new requirements for Ent Tier 1 Visa. Thanks.

Thank you.

I didn't say that you should change your solicitor and I have not even thought about that.

I hope you' ve got more understanding about the Tier 1 "E" Visa now.
Please, let's know of any update if you can.


Good luck.

hello Bright_Thought

We have also submitted docs to HO for reconsideration.

we mentioned that however the contract is via agency the contract clearly state that it is 'contract for services'.
we also mentioned that on contract I have opted out of conduct regulation in respect of the supply of the services under the agreement. according to my contract it basically means that the supplier (myself) is a self employed consultant supplying his services as a PSC (independent) contractor and as such the supply of services falls outside the scope of the conduct regulation.

we also added extra bits that I have discussed in this post.

Above points were clarified against the lousy decision from HO and also to defend the points available in A41 paragraph of the guidance.

reconsideration is free and it does not affect your right of appeal and can be processed while your appeal is pending.

As stated earlier appeal can take upto 6-7 months and if you withdraw the appeal you will not have chance to appeal again should your fresh application in any category gets refused.

hope this helps

So finally what was the outcome? Was the decision in your favor?

KR
N

Hi

My appeal hearing is next week. I will post the decision as soon as I have it.

good luck mate. We shall await your update.

p2s7721 wrote:Hi

My appeal hearing is next week. I will post the decision as soon as I have it.

thanks nbhatt

I don't know what points your soli have for arguments but surely he will have a good argument against the decision. I thought I will also share a few strong points which you might want to consider in your hearing.

1. There are many UK ltd companies operating on the same basis meaning engaging recruitment agencies to secure a contract, so why it is biased for the immigrant companies? The UK nationals who are settled here in the UK has a ltd company so they can secure a contract through recruitment agency but why cant an immigrant ltd company do the same. It is a clear discrimination in terms of law.

2.If we secure a contract through recruitment agency or secure a contract directly; clauses ,terms and conditions remain the same as in of a self employed contractor and not of an employment or filling in the vacancy. The policy guidance contradicts in itself.Lets say if we dont engage a recruitment agency and secure a contract directly from a company who then passes on the task of a 3rd company to you then wouldn't it be same like a recruitment agency?

3.Initially the role of a recruitment agency was only restricted to fill in the vacancy for an employer. The agency would contact the candidate and if skills match then the candidate is placed in that firm and work as an employee. There is a great demand of such agencies and with the evolution and the rising demand these agencies have expanded their horizon and are progressing towards contract placements which is totally different from the normal employment process. Here, the agency normally gets a percentage (known as the agency’s rate) of the money that the employer’s firm pays for your services. This is normally done by the firm paying the agency, and by you sending invoices to the agency; i.e. you don’t bill the firm directly. The invoice is billed for the services provided by your ltd company and not as employee of any agency or a firm.

I hope this helps.
KR
N

p2s7721 wrote:thanks nbhatt

Hi

How do you know these points? are you a consultant or immigration lawyer? we have used the same points but focused more on how my work and the contract did not fall under IR35 and intermediary legislation. Your points seems clear and thanks for sharing it.

hello all....
I am going to apply for extension within couple of months and got entrepenour visa in 2012.....!!!
is the agency contarct applied on me as well or I will be considered on the old rules?
as the moment I am being offered contarct for services (Agency Worker Contract) in a factory, should i accept it

Is new rules apply on me for extension or I will be accessed on old rules??

raja1985 wrote:hello all....
I am going to apply for extension within couple of months and got entrepenour visa in 2012.....!!!
is the agency contarct applied on me as well or I will be considered on the old rules?
as the moment I am being offered contarct for services (Agency Worker Contract) in a factory, should i accept it

Hi Raja

If you are offered a contract for service then it cannot be an agency worker contract. please read the guidance on IR35 and intermediary legislation. The following link will also help you understand your potential situation.

https://www.gov.uk/government/uploads/s ... 0/BETs.pdf

https://www.gov.uk/employment-status-indicator

As far as I know your contract will be key evidence that can prove that the work you undertake was under genuine self employed capacity.

I am not sure whether your extension will be considered on the old rules.

Hi p2s7721

so finally what was the outcome? did you win?

N

p2s7721 wrote:

raja1985 wrote:hello all....
I am going to apply for extension within couple of months and got entrepenour visa in 2012.....!!!
is the agency contarct applied on me as well or I will be considered on the old rules?
as the moment I am being offered contarct for services (Agency Worker Contract) in a factory, should i accept it

Hi Raja

If you are offered a contract for service then it cannot be an agency worker contract. please read the guidance on IR35 and intermediary legislation. The following link will also help you understand your potential situation.

https://www.gov.uk/government/uploads/s ... 0/BETs.pdf

https://www.gov.uk/employment-status-indicator

As far as I know your contract will be key evidence that can prove that the work you undertake was under genuine self employed capacity.

I am not sure whether your extension will be considered on the old rules.

thanks to all my visa has been approved after appeal was allowed.

total waiting time 12 weeks after appeal was allowed

Sp thanks to legalkhan, hham1224 and nbhatt

Hi p2s7721,

Congrats,

so, all the hard work paid off and you won the appeal, time for celebration.

Can you please guide, how the appeal process went through and what points were taken into consideration on deciding the
final outcome.

It will be very helpful for lot of other members who are in the same situation.

Thanks

thanks

indeed time for a celebration

My solicitor had focused on the bundle. We came up with a strategy to introduce all the evidence and facts before the hearing. we demonstrated that the case worker mis understood my working arrangement (backed with my contract, HMRC and employment law). I also hired a local barrister who knew the local tribunal and he introduced his skeleton argument just before the hearing on that day. Judge was impressed with our work and thanked us for submitting all the supporting documents. no questions from HOPO

Appeal allowed in two days and fee refunded after 8 working days.

Regards

Hi p2s7721,

Well, i must say , that was in fact it was "a case well prepared , well fought".

My question is what is your understanding of the primary question of working in a contract of services through a recruitment company after going through this long and painful process. Reason being, again at the time of your ILR / Extension you have to go back to home office with the same working arrangement.

So,

1. Are you convinced now that working through an intermediary recruitment company as a contractor and providing your services
through your limited company is fine, and you will continue that until your next extension/ ILR application.

2.The judges who heard this case must have pointed out something to the home office lawyer if they were wrong.

3.What did your solicitor / Barrister suggested about this arrangement and going forward.

4. do you recognize any change in business structure can help safe this HO trouble.

your response is and will be very much appreciated. It will also be a great help for those who are stuck in similar situation.

Thanks

thanks


1. Are you convinced now that working through an intermediary recruitment company as a contractor and providing your services
through your limited company is fine, and you will continue that until your next extension/ ILR application.

I understand your question and i know home office guidance does not clearly states the applicant working as a contractor is allowed. however home office reply on HMRC employment status index and if you think your working for your own limited company and the contract or working arrangement between you or your company do not fall within the scope of IR35 thn you are fine i guess. I also believe that it is down to us to provide evidence that we are actually working for our company and It is advisable to check your working arrangement, employment status and contractor with experts. I rely icontractor tool and osborne clarke for their advice. You can also approach HMRC.

I am not sure weather I will continue working as a contractor as my focus is to expand my business first but I will definitely take any suitable opportunity if I get one.

2.The judges who heard this case must have pointed out something to the home office lawyer if they were wrong.

The case handler simply mis understood my working arrangement and did not assess my contract thoroughly (no exclusivity clause, no employee benefits, right to substitute etc).

Please keep in mind the ideal contract should be always between your company and client's (or intermediary) company and should not have been between yourselves personally.

3.What did your solicitor / Barrister suggested about this arrangement and going forward.

they have not made any specific comments but I guess I will stick to my business plan.

4. do you recognize any change in business structure can help safe this HO trouble.

HO employees need more training with tier 1 visas and i am sure HO is working on it. but if you know what your doing and if you qualify for the points for extension of visa thn i do not think you will face any trouble.

your response is and will be very much appreciated. It will also be a great help for those who are stuck in similar situation.