London,
05
May
2017

International mobility – moving employees from overseas to the UK

Moving employees from overseas to the UK is fraught with complications. Employers need to consider both UK immigration and employment law, and the complicated tax position of international employees.

This guide provides an overview of key aspects of international mobility in the UK. Some aspects of this are likely to change due to Brexit, but it is not yet clear what requirements will apply to European Economic Area (EEA) workers looking to work in the UK. This guide will be updated once there is greater clarity.

Does your employee need a work permit?

The UK operates a points-based system for migrants from outside the EEA and Switzerland, with different requirements for different visa categories (called "Tiers"). Migrant workers from outside the EEA and Switzerland who wish to work in the UK need to be sponsored by an employer unless they secure a Tier 1 visa. An employer looking to sponsor a migrant worker must have a sponsor licence and issue a Certificate of Sponsorship confirming that the individual meets the relevant criteria before the individual applies for their visa. The employer is also required to conduct "right to work" checks before the UK employment begins. This entails obtaining and retaining copies of specified documents evidencing the employee's right to work in the UK.

  • Tier 1: high-value migrants
    This applies to certain entrepreneurs, investors and leading figures in science, humanities, engineering, medicine, digital technology or the arts.
     
  • Tier 2: highly skilled migrants
    General
    This applies to migrant workers who have been offered a skilled role by a UK employer. The UK employer must show that they have been unable to fill the role with a UK resident or an EEA worker (the "resident labour market" test).
    The role must be sufficiently skilled (according to detailed Government guidance) and offer a minimum role-specific salary.
    The Government grants a maximum of 20,700 Tier 2 (General) visas each year for employees whose annual salary will be beneath a specified threshold (from April 2017 this is £150,600 but is usually reviewed annually).
    Inter-company transfer (ICT)
    This route permits multinational group companies who are looking to transfer employees from one group company outside the UK to another group company within the UK, either on a short or long-term basis. Short-term ICT visas will be for a maximum of 12 months. The employee must receive an annual salary of at least £41,500 (subject to periodic review) to qualify for a long-term ICT visa.

Recommendations

Employers who will need to transfer non-EEA/Swiss workers to the UK should obtain a sponsorship licence to enable them to do so.

Sponsorship licence-holders have strict obligations to maintain records and notify the Home Office of changes in migrant workers' circumstance.Compliance with these requirements is essential to avoid fines and/or suspension or revocation of the sponsorship licence.The employee's cooperation may be required; the secondment or employment agreement should therefore specify that the employee must provide information requested by the UK entity for immigration compliance purposes.

Ensure that the employer carries out "right to work" checks correctly.

Which social security system is applicable?

In general, employees working in the UK must pay UK social security contributions (called National Insurance contributions or NICs). The employer must deduct these from their pay and also pay employer's NICs in addition. Even if the employee is seconded to the UK and remains employed by their home employer, the UK entity is regarded as their "employer" for NIC purposes.

When an employee comes to the UK, special arrangements can apply for the employee to continue paying social security contributions in their home country for a period after coming to the UK (generally between one and two years, depending on the country). The UK also has special arrangements with all EEA countries and many countries outside the EEA that may mean that the employee can continue paying social security contributions in the other country for a longer period – especially if the employee is working in more than one country.

The main exemptions are where the employee comes from:

  • an EEA country or Switzerland and holds a valid Portable Document A1 (or E101) issued by that country's tax authorities covering the period in question
  • a country with which the UK has a Reciprocal Agreement (RA) or Double Contribution Convention (DCC) and holds a certificate issued by that country's authorities covering the period in question
  • a country not included above - even without a certificate, transitional arrangements may mean that the employee is exempt from paying UK NICs for the first 52 weeks of their UK employment if certain conditions are met.

Recommendations

Where possible, ensure that an A1/E101 document or the appropriate certificate (as applicable) is obtained by the employee prior to their employment commencing, and that it covers the period of the assignment.

Make a diary note to reassess the position in advance of when any A1/E101 document or certificate expires, or transitional arrangements will expire.

Is the employee liable for taxes in the UK?

The first question to consider is whether the employee will be UK resident. The UK has a statutory residence test ("SRT") that depends on the number of days spent in the UK in any tax year (which runs from 6 April to 5 April of the following calendar year). This is of particular concern to employees who split their duties between the UK and another country or countries.

If the employee becomes UK resident they will generally be liable for UK tax on their worldwide income (including the earnings from their employer). A non-UK resident employee working in the UK will generally only be subject to UK tax on any income earned from duties carried out in the UK.

However, the position will be more complicated for employees who have income that risks being taxed in more than one country, especially where they carry out duties both inside and outside the UK or are only in the UK on a short secondment. In these cases, it may be necessary to consider any tax treaty between the UK and the other country. Where the employee has some earnings that are subject to UK tax and some that are not, the amount of UK tax due may depend on the number of days spent working in the UK compared to those working outside the UK.

If any of the employee's earnings are subject to UK tax, the employer will almost always have to deduct tax under the "Pay As You Earn" ("PAYE") system, and pay the tax over to HM Revenue & Customs (the UK tax authority , also referred to as HMRC) . Even if only some of the earnings are subject to UK tax, there is a risk that the employer will be required to deduct PAYE against all of the employee's earnings. It will then be for the employee to claim back the excess tax in their UK tax return. However, in these cases, it should be possible for the employer to request consent from HMRC to deduct only against the UK taxable income. Without consent, the employer risks interest and penalty charges if it does not fully deduct.

With a few exceptions, employees will also be required to pay tax on any benefits they receive from their employer. However, where the employee does not intend to spend more than two years in the UK, it may be possible to provide some benefits in relation to accommodation and subsistence without them being subject to UK tax.

Recommendations

Ensure that the UK entity operates the PAYE system correctly for any employee coming to work in the UK, even if their employment contract will remain with the non-UK employer.

If an employee will only be subject to UK tax on part of their earnings, obtain early agreement from HMRC as to whether PAYE can be operated on an amount less than the employee's full earnings.

Where an employee will not be spending all of their time in the UK, keep accurate records of time the employee spends (and works) inside, and outside, the UK.These may be needed for the SRT and also to determine how much of the employee's earnings are subject to UK tax.It is much easier to keep these records throughout the year than to try to recreate the employee's movements after the end of the year in response to a tax enquiry.

If the employee is intending to work in the UK for less than two years, consider what benefits can be provided in a tax efficient manner.

Which specific mandatory employment conditions apply?

In general, employees ordinarily working in or based in the UK benefit from UK statutory employment rights. These include:

  • the National Minimum Wage (from 1 April 2017 this is £7.50 per hour for workers aged 25 and over, but rates are usually reviewed at least annually)
  • 5.6 weeks paid annual holiday (including eight UK public holidays)
  • statutory sick pay
  • protection against discrimination in employment
  • protection for whistleblowers
  • family-related rights, including maternity and paternity leave and pay, and shared parental leave
  • protection against unfair dismissal (in general the employee must have 2 years' service to bring a claim, but there are important exceptions such as dismissals connected with pregnancy or being a whistleblower)
  • protections related to TUPE transfers and collective redundancies
  • the fact that the contract of employment may not be governed by UK law would not prevent these statutory protections applying.

Recommendations:

Ensure that managers are aware of key statutory employment rights and their potential application to employees seconded or assigned to the UK.

What happens in case of termination of the assignment?

Whether the employee is seconded to work for a UK entity or is employed on a temporary basis by a UK entity, the secondment agreement or employment contract should deal with what happens on termination of the assignment. Employers should consider at the outset whether the employee's role in their home country will be kept open, whether the employee will be replaced on a temporary or permanent basis and what will happen if the employee's home role is no longer required.

The secondment agreement should also give the employer the right to terminate the assignment with immediate effect in certain circumstances and require the employee to return to their home employment (for example, if the employee ceases to be entitled to work in the UK).

UK employment or secondment agreements should contain business protection terms applying to the employee on termination of employment, including confidentiality obligations, a duty to return company property and, if appropriate, time-limited post-termination restrictions on the employee's ability to undertake employment with a competitor, solicit or deal with the employer's clients or poach the employer's staff. Such restrictions must be carefully drafted to improve the chances of their being enforceable.

The UK statutory protection against unfair dismissal will apply where the employee is ordinarily working in the UK at the time of their dismissal. If termination of the employment is contemplated, the employer should therefore consider whether this should take place in the UK or whether the employee should be required to return to their home country first. If it will take place in the UK, it is prudent to follow the requirements for dismissing an employee fairly, which includes procedural requirements. Employers should also remember to notify the Home Office of the termination if the employee is being sponsored under the Tier 2 regime.

Recommendations

Ensure that the secondment agreement or employment contract contains appropriate terms relating to termination and business protection.

Consider carefully how the mechanics of termination of employment should be effected.
 

For more information or advice on moving employees from overseas to the UK please contact Susie Al-Qassab (employment), Antonia Torr (immigration) or Leigh Sayliss (tax).

Author
photo:Susie  Al-Qassab
Susie Al-Qassab
Senior Associate
photo:Antonia  Torr
Antonia Torr
Associate
photo:Leigh Sayliss
Leigh Sayliss
Partner
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