Are sponsor licences required for migrant workers operating remotely?
Remote (and hybrid) working is now commonplace in the UK and abroad.
And the usual position is that businesses in the UK need a sponsor licence to employ migrant workers (workers from outside the UK who do not otherwise have a right to work here).
But will businesses need to sponsor migrant workers who are not actually working from the office?
The UK government provides extensive guidance for sponsors of migrant workers.
However, other than a COVID-19 concession permitting remote working for sponsored workers, there has been little formal guidance released relating to remote working.
For instance, the Home Office caseworker guidance on sponsor compliance visits (Version 15.0, at the time of writing), was last updated on 19 February 2018.
Unlike many other countries, the UK does not have a digital nomad visa. And given the nature of the immigration debate in the UK, it seems unlikely one will be introduced.
What is remote or hybrid working?
Remote working will usually mean the employee works in the UK, but from their home, or it might mean that they work from their home outside the UK.
Hybrid Working involves the employee sometimes working in the UK office, with the rest of the time being outside the office, such as at the employee’s home (whether that’s in or outside the UK).
When do you not need a sponsor licence?
You will not need to sponsor a worker under a sponsor licence if an employee is a British or Irish national, or has settled status/Indefinite Leave to Remain in the UK.
Nor will you need a sponsor licence is the person you wish to sponsor has an alternative basis of stay in the UK which gives them a right to work (for example, they have a family or student visa which gives does not prevent them from taking employment).
In order to employ any other foreign national, the general rule is that you will need a sponsor licence.
Fully remote workers – outside the UK
But what if the foreign national employee works entirely outside the UK and never comes to the UK for work?
In this scenario, on the basis that the migrant worker never comes to the UK for work, there is no need for the company to have a sponsor licence.
However, bear in mind that, if the individual did come to the UK and undertook work activities during the visit, there would be restrictions on what those activities could be (probably restricted to the activities permitted under a business visit visa).
UK companies should also bear in mind that employing individuals in other jurisdictions may raise consideration regarding tax, data protection, and immigration status in the other country, and on which advice should be sought.
Fully remote workers – inside the UK
If the migrant worker is based in the UK but never comes to the office, the company will still need a sponsor licence because they a migrant worker within the UK.
You should bear in mind that the Home Office may ask why an individual needs to be sponsored if they do not physically need to be in the office, and may query whether the vacancy within the business is "genuine".
This question could be raised either during the initial sponsor licence application process, and/or during the visa application for the individual concerned.
Common responses to this include, for example, that an individual could work remotely from their home country, but the time zone differences mean that there are significant logistical difficulties coordinating team working.
Another basis employers have explained to us is that, although working remotely, a team might meet once a month or sproadically when issues arise or to progress a project.
Having to arrange international travel in such situations - especially for visa nationals, and/or with possible restrictions on the scope of that work when in the UK - makes sponsorship the only realistic alternative.
Hybrid workers – with some UK office attendance
If a sponsored employee works from within the UK in a hybrid working pattern (for example, 3 days in the office, and 2 days working remotely), a sponsor licence will still be needed.
Although the Home Office is less likely to raise questions about the need for an employee to be in the UK, caseworkers are likely to raise questions about how sponsored workers will be monitored.
This is because, whatever the working pattern, sponsors must comply with their obligations as a sponsor, such as monitoring migrants’ attendance, performance and keeping the Sponsor Management System up to date (for example, with the employee’s main work address).
Sponsors will need to have processes and procedures in place to ensure - and demonstrate - compliance with the relevant guidance where employees are not based in the office.