Can I apply for self-employed on Tier 2 (ICT)

Does anyone really know Can I apply for self-employed on tier - 2 (ICT) ???

sushdmehta, even though you can't be self employed, I think you can still run a limited company and do contracting. You'll need to pay yourself in dividends. Is my understanding correct?

Thanks..you seem to be quite knowledgeable in this field. Are you a lawyer or immigration consultant?

sushdmehta wrote:No.

I don't think it's as simple as that, paragraphs 533-536 of the Tier 2 & 5 guidance seems to suggest that self-employment is permitted - although only in limited circumstances.

MIGRANTS WORKING ON A CONTRACT BASIS
533. Where a migrant is working on a contract basis and has been supplied to you by another organisation, you must be the organisation which has full responsibility for determining the duties, functions and outcomes, or outputs of the job the migrant is doing.

534. An example of this would be where Company A has a contract with Company Z to deliver a piece of work. A migrant who is sponsored by Company A, may be sent to work for the duration of the contract with Company Z, but they remain employed by Company A throughout the period of the contract and Company A is fully responsible for deciding the migrant’s duties, functions, outputs or outcomes. In this example, Company A remains as the migrant’s sponsor.

535. You are only allowed to assign a CoS if it is clear that you have full responsibility for deciding the duties, functions and outcomes or outputs of the job. Where the sponsored migrant is carrying out work for a third party on your behalf, they must be contracted by you to provide a time-bound service or deliver a time-bound project on your behalf. They must not be contracted as agency workers, or to undertake a routine role for the third party, which
is not related to the delivery of a time-bound service by you.

536. If the migrant is working on a self employed basis, there must be a contract for employment/services between you and the migrant. This contract must clearly show;
a) the names and signatures of all parties involved (normally, this will only be you and the migrant); and
b) the start and end dates of the contract; and
c) details of the job, or piece of work that the migrant has been contracted to do; and
d) an indication of how much the migrant will be paid.

http://www.ukba.homeoffice.gov.uk/sitec ... sguidance/

So you still can't go off contracting yourself all over the place without getting sponsored each and every time - including getting a new visa each time.

Say I'm currently under Tier 2 and working 40 years per week. I can open a limited company and do after-hours contract work and get paid through dividends in my company.

Or for that matter, generate revenue by selling by services online. That seems to be within the rules? I guess if I wanted to play it safe, I should keep it under the 20 hours allocated for supplementary work? Again in this situation, I'm not an "employee" by any definition.

There are several issues here

a) The basis on which a sponsored worker can be engaged by their sponsoring company. Most are PAYE employees but in some circumstances sponsored staff can be self employed; this is most usual for partner-level staff in solicitors or accountants practices. Members of a partnership are technically self employed. Running your own Limited company is not self employment, and sponsors are not allowed to pay sponsored staff via personal service companies. Very few companies will pay people on an unincorporated self-employed basis as if the individual fails to pay tax, HMRC can usually charge the tax to the 'client' company; this is unrelated to visas/sponsorship, it applies equally to UK nationals, which is one ogf the reasons why UK freelancers usually operate via a Limited company or umbrella company.

b) A sponsored worker's ability to do up to 20 hrs/wk supplimentary work for companies other than their sponsor. This is governed by
i) Sponsor guidance paras 570-573 of ther 13.12.2012 guidance. and
ii) The worker's contract of employemnt with their sponsor

It is very important to realise that Sponsor guidance paras 570-573 does not grant anyone the right to ignore their contract of employment. Most employers require staff in professional jobs to get permission to take up supplimentary work, and will not allow work taht competes with the employer. Thus anyone working for a consulting company will usually be prohibited from undertaking consulting/contract work outside the company

The heading above Sponsor guidance paras 570-573 is 'SUPPLEMENTARY EMPLOYMENT', and the paragraphs talk in several places of 'employment'. In the light of paragraph 566, it would be reasonable to assume that Supplimentary 'employment' may occur on a self-employed basis, but this is not a right to set up a business.