URGENT HELP - UK Working Holiday Visa (WHV) Problem

[mbla062]

I am wanting to get some advice regarding a dilemma I am currently in. I am on the Working Holiday Visa but I have set up a Limited Company.

I applied for a National Insurance number and I got contacted today by the Department of Work and Pensions saying that I have breached my visa conditions by setting up a limited company.

They did not give me a chance to explain and only got told to expect a letter from them in the next week. I do not know what will be contained in this letter.

Could anyone give me some urgent advice please on what happens in situations like these??? Are there any penalties etc?? Is it best that I get rid of my limited company etc....

Your help on this would be greatly appreciated. I do not want to find myself in a position where I am sent home.

HELP HELP HELP!!!!!!

[transpondia]

The theory goes that WHM's are not here permanently and therefore setting up a company is not appropriate.

If they think you contemplated setting up a company when you obtained your WHM, then you can be done as an illegal entrant. That's a finite possibility by the way, not necessarily a definite outcome. It is the worst that can happen, and the odds of this are low.

Otherwise, if they can show you set up a company on a WHM, that puts you in breach. The worst that can happen in that case is curtailment and an AR. The odds of this are medium.

If you haven't been served yet, the immediate option to consider is to leave. To your other question, yes, eventually you'll have a chance to explain. If you have a compellingly good explanation, then your best option is to attempt to exceptionally switch into an economic status.

Now to the real issue.

To your question about abandoning your company, if it was created illegally, and if you have already traded under it, there may be additional jeopardy on the fraud or money laundering side which is quite apart from immigration. That's a rather large concern, and you're best bet is to get professional counsel hastily.

[Dawie]

There's no theory here, just rules. And the working holiday rules state the following:

How do I qualify as a working holidaymaker?
You must be able to show that you:

* are a citizen of a country listed in Appendix 3 of the Immigration Rules, a British Overseas Territories citizen, a British Overseas citizen or a British National (Overseas)
* are aged between 17 and 30
* want to come to the UK for an extended holiday, and intend to take employment as part of your holiday for no more than 12 months during your stay
* do not intend to set yourself up in or run a business, or work as a professional sportsperson during your stay
* are single, or that you are married to, or the civil partner of someone who also qualifies as a working holidaymaker and you plan to take the working holiday together
* do not have any dependent children aged five or over, or who will be five before your holiday ends
* can support yourself in the UK without needing any help from public funds
* have not spent time in the UK on a previous working holidaymaker visa, and
* intend to leave the UK at the end of your holiday.

It is your responsibility when applying for a visa to make sure you are aware of what conditions are attached to that visa. At the end of the day you have no one to blame but yourself for the situation you are now in.

Unfortunately the Home Office is fully entitled to ask you to leave the country for being in breach of your visa conditions. In the current political climate you could probably expect them to fully enforce these rules.

The only thing to do at the moment is to wait for the next letter and inform us on this board what exactly the content of that letter is and we can advise you accordingly.

[SYH]

I am wanting to get some advice regarding a dilemma I am currently in. I am on the Working Holiday Visa but I have set up a Limited Company.

I applied for a National Insurance number and I got contacted today by the Department of Work and Pensions saying that I have breached my visa conditions by setting up a limited company.

They did not give me a chance to explain and only got told to expect a letter from them in the next week. I do not know what will be contained in this letter.

Could anyone give me some urgent advice please on what happens in situations like these??? Are there any penalties etc?? Is it best that I get rid of my limited company etc....

Your help on this would be greatly appreciated. I do not want to find myself in a position where I am sent home.

HELP HELP HELP!!!!!!

Like transpodia said, if you haven't traded, then I'd dismantle the company straight away and try to contact someone at DWP and see if you get someone to give some insight that if you do so might you get a break.
Tough break there, I heard you can be self employed so it isn't a far feteched stretch to think you can setup a limited company but I can understand that this is considered more permanent and not withinbounds of the visa.

[Dawie]

....I heard you can be self employed...

You cannot be self-employed on working holiday visa.

[Administrator]

.

We have a reasonably good guidance here:

Working Holidaymakers
http://www.workpermit.com/uk/working_holidaymaker.htm


Setting up an Ltd. is pretty clearly a violation of the letter & intent of the conditions of the visa.

Working as a self-employed person is possible, but under very unusual and complicated circumstances. The point of the WHM is to take temporary & part-time employment with companies established in the UK as part of a vacation.

Immigration will probably take the view that you have attempted to bypass the restrictions on your WHM and turn your visa into permanent settlement. You are likely in the position of now proving you did not do this.

Please update us on your case, as it is unusual. It would be very helpful to all members to see what Immigration will try with you, and what options are available.

We will be happy to try and offer advice, but I think you might see by now that options might be very limited.

the Admin

[thismighthelp]

Hi all, I had the same query so emailed the home office. Below is the email conversation (in reverse chronological order). I hope this helps someone, though remember as you read this on the internet it's probably not going to stand up in court, so email the homeoffice with the same enquiry and get a response in writing. Hopefully the flood of emails will force them to post something definitive on their website.

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RE: Working Holiday Maker - creation of Limited Company

IND Public Enquiries <INDpublicenquiries@ind.homeoffice.gsi.gov.uk> Fri, Feb 1, 2008 at 5:50 PM
To: [me]

Dear [me],

Thank you for your enquiry.
The restriction on engaging in business does not rule out all self-employed activity where the latter is clearly temporary in nature, but any activity which involves commitments such as investment in premises, expensive equipment or the employment of staff is to be regarded as activity for which a person would be required to qualify under the Rules relating to business.

After completing 12 months as a Working Holidaymaker, you maybe eligible to apply for a Work Permit if the occupation is listed on the occupation shortage list available on the website.

You will have to find an employer willing to sponsor an application on your behalf and the employment must meet the requirements of Work Permits UK.

For further information, please visit the Border & Immigration Agency website at www.bia.homeoffice.gov.uk or call Work Permits on 0114 207 4074.
Yours sincerely,

Antony Fernandes
Managed Migration
Border & Immigration Agency

If you intend to reply to this e-mail please ensure that you re-send all the information from your original enquiry.

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From: [me]
Sent: 30 January 2008 15:41
To: WPCustomers
Subject: Working Holiday Maker - creation of Limited Company

Dear Sir/Madam,
I have arrived in the UK on my working holidaymaker visa and am interested in commencing contract work in the oil and gas sector. I'm interested in short term contract positions however every potential employer or agency requires that I be paid as a "limited company" in order for this to happen.

I would like clarification on the condition of my visa: "do not intend to set yourself up in or run a business, or work as a professional sportsperson during your stay", which I understand the intent of (discourages working in the UK longer than 12 months), however in my case it achieves the opposite as my only recourse is to work as staff, which implies a sense of permanency.

Can I set up a limited company as long as I demonstrate that the sole intent of doing so is to work as a contractor (by way of a letter from the employer)?
Thank you in anticipation,
[me]

I have found some related (but not definitive) information here: http://www2.martinwardanderson.com/jobs ... -uk/visas/

As a Working holiday visa maker you are not entitled to operate as a business. Many contractors favour being paid through a limited company set up and at the moment the legality of this is considered to be a grey area.

Current advice that we have received is that Working Holiday Makers can trade through a Directorship company; there is no legislation against this. As long as they are not employing workers or are intending to run a small business.

There are many case examples of working holiday makers who have operated through a limited company set up successfully having HSMP applications granted which indicates through case law that using a limited company whilst on a Working holiday visa category is legal.

Further there is provision for self employed contractors to be able to submit earnings within the Border and Immigration Case Work – Earnings noteshttp://www.ind.homeoffice.gov.uk/documents/cas ... iew=Binary

Be aware that you may only submit dividends from a Limited Co set up if you are working for the company on a full time basis, or the payment is directly related to your employment.

Also please be aware that your limited company must be completely IR35 compliant and that any dividends presented as earnings will have the appropriate tax applied before they are considered.


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http://johnshield.blogspot.com/

[Dawie]

This does not make the Home Office's position any clearer I'm afraid. In true Home Office tradition this email does not actually answer the question at hand: "Can a working holiday maker be a director of a limited company". There are only two possible answers, yes or no.

[thismighthelp]

This is clear:

The restriction on engaging in business does not rule out all self-employed activity where the latter is clearly temporary in nature, but any activity which involves commitments such as investment in premises, expensive equipment or the employment of staff is to be regarded as activity for which a person would be required to qualify under the Rules relating to business.

In other words, you can be director of a company provided you don't buy property or employ people - fine if you just want to work as a contractor.

[Dawie]

Being self-employed is NOT the same as being a director of a limited company. While most limited company directors are self-employed, not all self-employed people are directors of limited companies.

So I do not agree that it is clear at all. The Home Office person who responded to you has not mentioned the term "limited company" or "director" once in their response to you.