A Curly One For The Brains Trust on the Board!

[madkiwi]

Background: I am employed by company a. Company A sponsored me 5 years ago to get a work permit and I am now eligible for Indefinite leave to remain(ITLR). I have an employment contract with the firm dated when I first joined in 2004.

Possible Problem: For the seven years I have been with company A I have invoiced them for my services as this is the preferred method of paying employees at this firm. I have a letter stating my full time employment is still happening, and will be ongoing.

My question is this, based on the melting pot of wishy washy opinions I have been told that by been a contractor to the firm I will have problems applying for ILTR because I am not on the payroll. With all the changes over the 5 years, and the constant changes in the rules at the Home Office I am very confused whether I have a hope because they issued the visa on the grounds of my payments been as mentioned as above. Or whether I am in a real pickle because the lawyer who did my application originally may not have been totally transparent with the home office.

Advice as always is greatly appreciated, and the fact it is free in these harsh economic times is a blessing,

Thanks in Advance Donna

[geriatrix]

Basic principles:
1. Employees do not invoice their employers to get paid for services rendered. Employees are paid wages / salary.
2. A vendor / service provider / contractor "invoices" a client for services rendered and receives monies from the client.

As a WP holder, you cannot be self-employed - unless you had explicit permission from UKBA to be allowed to do so. In other words, you cannot have a "vendor - client" relationship with an organisation who sponsored your work permit (on the pretext that you would be an employee).

I am afraid you may have been in breach of immigration rules ever since you have been following the "payment method" you mention.

The work permit holder is not allowed to enter self-employment, set up a business or join another business as a director or partner without obtaining further permission from us.

[slugmeister]

Sush, can you explain why this is a problem as long as it shows she has money going into her account from the company?

If she can provide the bank statements and P60's does it really matter?

To me this seems more like a technicality rather that a violation.

I don't have a dog in this race, but am just curious, really.

[winber]

Maybe it is time to get a solicitor involved?

Employment law is a complicated area, and it may be that you are really an employee due to the manner in which you worked - i.e. showed up at the same place of work for 7 years in good faith.

At any rate, if anybody does get in big trouble, I'd imagine it is your employer (i.e. the entity that issued your Work Permit). It is ultimately in their interest to help you sort all of this out.

[slugmeister]

At some point this arrangement must have been OK with UKBA as her work permit was renewed.

[geriatrix]

Were WP holders required to provide evidence(s) of previous earnings when making a leave to enter / remain application or how payments are made to the employee (applicant)? The FLR(IED) form doesn't ask for any such information.

Likewsie, the WP authorisation form(e.g.- WP1) asks for the "salary" the employer guarantees to pay the employee.

So how would UKBA know that the employer may have "deceived" the employee in believing that he /she could operate as "self-employed" in the UK despite being a WP holder?

[slugmeister]

Thanks for the explanation, Sush. I was confusing WP with Tier 1.

I wonder what the original poster's tax situation is? Did the company deduct tax from the invoices? Or was she responsible for paying tax on her own?

Did she receive any other benefits?

I'm just thinking aloud here. If tax was deducted from the invoices and she received other benefits i.e. private medical insurance, then a reasonable person would deduct that she is an employee and not self-employed.

What was her IR35 declaration?