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Senior Partner
Senior Partner, Solicitor
Category: UK Immigration Law
Satisfied Customers: 13245
Experience:  Solicitor
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Dear Gentlemen, Im challenging you to get a correct answer

Resolved Question:

Dear Gentlemen,
I'm challenging you to get a correct answer for my situation.
I am a doctor from Romania. I'm not at a consultant level, neither a registered GP. A have a full GMC registration with license to practice.
Before coming to UK, in October 2010, I made some inquiries about all the necessary documents I need to bring with me before coming to work in the UK. Since I wasn't keen to wait more than 6 months to wait for a AWC, I've decided to come here and work as self-employed. I was advised to open a limited company and work with the NHS hospitals through locum agencies. Ok, so I've settled my limited company in November 2010 and started to work. I didn't have permanent jobs, as those were short term and I use to move from one city to another for a new job.
This October I have started a new 6 months job, which was offered through a locum agency as well. I'd like to mention that over the last 12 months I have worked with this agency about 4 months in total.
Now the agency have told me that there is a problem with my immigration status, because they think I'm not a genuine self-employed if we take into account the HMRC definition. So, if I'm not self-employed than I need a work permit.
They have also told me that even if I would have been a genuine self-employed, I'm still not eligible to work (a Specialty Registrar position) as this is not a consultant or GP job.
The problem is that there are hundreds or maybe thousands of doctors working with these locum agencies using their limited company, but not being consultants or GP, as the most demanded locum jobs are Senior House Officer or Specialty Registrar positions (junior level).

The money circuit in my case works as follows. The hospital pays the locum agency, the agency pays my limited company, and I have a salary as a Company Director (which is usually the minimal allowance) and the rest of the profits I get form my dividends.

I've asked different people with some expertise in UK legislation and I had different opinions.

One person explained me that if me as an individual is being paid with a salary from my company than I am considered an employee by HMRC, so if I'm an employee than I'm no longer considered a self-employed in front of the UK Border Agency and I will need then a work permit... In this situation the things look a bit funny... It means basically that I as a company owner may need to apply with UKBA for me (an individual) to obtain a work permit...? Is it possible to be true?

An other person also suggested that for me to fit into self-employed definition, even if I own my company, I need to provide services to more than one client, or not more than 3 months with the same client. It means that I may need to work in different hospitals at the same time, but not more than 3 months, otherwise the HMRC will consider me employed and not self-employed. I don't understand this regulation, because , for instance, if I own a cleaning company and I found another company ( a building with offices) and provide cleaning services for that company for more than 3 months, than I'm not self-employed anymore. Why if I don't have time to deal with other clients or don't have logistical capacity to work with other clients? I think, this definition of self employed is very vague and I don't know what I am... Because if they say I cannot be considered a self employed, this means that I have worked illegally...and this would be really sad, as the agencies have never asked me for any work permits when I use to show them than I have a Romanian passport and limited company....

Please help me to clarify this situation, as I think there are quite a few doctors in my situation.

Kindest Regards,

M
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Senior Partner replied 1 year ago.
Thank you for your question. If you are a director of a company and are paid a salary then you re employed not self employed. The matter is not debatable I am afraid. To be self employed you have to be providing a service or selling goods and charging for it directly to the recipient of the goods or service. You cannot be employed by a company without an AWC . It is also correct that most self employed people have more than one customer. Although it is possible to have one customer at a time. So I am sorry to say that I am sure the agency is correct. Locum roles are still employee roles even if only temporary - you are still working under the authority and direction of the hospital.
Customer: replied 1 year ago.

Thank you your answer.


 


But what about this rule that only Consultants or GPs are allowed to work as self employed? Is it true?


 


For example, if I would have had a full right to work in the UK, as other EEA citizens, would I then be allowed to work as a junior doctor through my limited company to do locum jobs?

Expert:  Senior Partner replied 1 year ago.

I have no idea if from an NHS perspective there is a rule that only ~G
P's and Consultants can be self employed but what is employment and self employed form a tax and legal point of view is a matter of construction.

The difference is broadly whether you have a contract of service under which you do what you are told and are under the control and direction of the person you are contracted to - that is the typical employment relationship. You are told what hours to work, where to work etc. Self employed people have a contract to provide services. They determine for themselves when and how they do that subject to the contract they have entered into. A GP would normally be self employed just like a lawyer or an architect because they run a business or practice providing services although any professional could be employed in someone else's practice. I would have expected a consultant doctor to be employed in their NHS role but self employed in their private practice.

The fact is if you work under a company that contracts out your services then you are employed. That is the case with most people who use contracting companies. If you contracted direct it might be argued you were self employed but I doubt it if you are doing temporary NHS roles through an agency. Sorry that is not the answer you wanted but it is I am afraid the legal position.
Senior Partner, Solicitor
Satisfied Customers: 13245
Experience: Solicitor
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