Genuine Entrepreneur Activity for extention

[Expatinlaw]

Hi all

I`m running my consultancy business through my company as a Tier 1(E) visa holder which I want to extend in 2016. I`m slightly confused with the genuine business test that I have to pass to extend my visa.

Under A41 of the Guidence I may not, be considered to be working for my own business if the work I undertake amounts to no more than employment by another business (for example, where I work amounts to no more than the filling of a position or vacancy with, or the hire of your labour to, that business, including where it is undertaken through engagement with a recruitment or employment agency). In this capacity you would have a contact of service. This applies even if it is claimed that such work is undertaken on a self-employed basis.

Applying this to my case I have many small private clients within the last year, but I contracted with a big company that is my "anchor client" through which I`ve generated 80% of my profit this year. It is an open completion date contract of service with another business. We contracted through recruitment agency who hiring outsourcing stuff for big companies (and my profit goes though recruiters in my invoices), but they hired me as a company, they paying me through invoices, charging VAT etc. Usually, I`m working within their office due to confidentiality restrictions and using their PC and databases.

To clarify this concept HMRC set the list of following criteria (http://www.hmrc.gov.uk/employment-status/index.htm#1)

SEE my answers in the (brackets)

As a general guide as to whether a worker is an employee or self-employed; if the answer is 'Yes' to all of the following questions, then the worker is probably an employee:
• Do they have to do the work themselves? (no, my case worker can do it for me)
• Can someone tell them at any time what to do, where to carry out the work or when and how to do it? (yes, the client usually what I should provide under the contract)
• Can they work a set amount of hours? (no)
• Can someone move them from task to task? (yes, it`s up for the client to decide)
• Are they paid by the hour, week, or month? (yes, weekly)
• Can they get overtime pay or bonus payment? (yes)

If the answer is 'Yes' to all of the following questions, it will usually mean that the worker is self-employed:
• Can they hire someone to do the work or engage helpers at their own expense? (yes, I have a case worker to help me)
• Do they risk their own money? (yes, and that is why I have a professional insurance)
• Do they provide the main items of equipment they need to do their job, not just the small tools that many employees provide for themselves? (no always, sometimes I use my own PC)
• Do they agree to do a job for a fixed price regardless of how long the job may take? (sometimes, but usually there is only a hourly rate in the contract)
• Can they decide what work to do, how and when to do the work and where to provide the services? (depends)
• Do they regularly work for a number of different people? (yes, I work for number of clients)
• Do they have to correct unsatisfactory work in their own time and at their own expense? (sometimes)

So, even after this test it is unclear for me how I should prove my genuine business for a case worker. Could you please share your experience or thought regarding the matter?

[Olasunkanmi]

@ Expatinlaw, your analysis seem more like a contractor working at the clients premises and paid daily/weekly rate. If yes then my opinion is for you to consult an experienced lawyer who will be able to help with your case.

From the recent changes by HO, it seem that contracting is not acceptable under the Tier 1 Entrepreneur visa, but it is still a very complicated issue as no one is sure of the real interpretation for now until the extension of the concern applicants commences.