UK immigration law typically operates in a cliff-edge fashion, at least in corporate immigration matters - it’s usually either yes or no, there is less often areas of grey and debate. Still, there is one area of immigration law for sponsored workers that is cumbersome and unclear, and this is potentially being stretched by law firms: the secondment of sponsored workers.
Law firms are often keen to second lawyers to key clients to maintain and develop client relationships and enable their lawyers to gain insights. The situation becomes more complicated when the lawyer has a sponsored visa. Most work visa holders are sponsored workers, with 'skilled worker' being far and away the most common UK immigration category for lawyers (although employees transferred from an overseas office might be 'senior/specialist workers' – previously the ICT category).
UK Visas & Immigration (UKVI), the department of the Home Office that deals with immigration, maintains lengthy guidance which sets out the obligations and duties that sponsors (i.e. law firms) must comply with to be able to have the 'privilege' (as stated in the guidance) of sponsoring foreign nationals.
At hundreds of pages it is not an easy read, but buried in the guidance are a few paragraphs relating to the secondment of sponsored workers.
UKVI has always been keen to combat companies being provided with sponsored workers and thereby potentially circumventing the requirements of sponsorship. As such there are narrow provisions in the guidance on when a sponsored worker can potentially be 'contracted-out' to another organisation for a provision of services.
The relevant paragraphs start at S1.27 in guidance for sponsors part 2: sponsor a worker – general information. The requirements for a sponsored worker to be contracted out to a third party can be distilled down to the following:
- the arrangement must be 'time-bound';
- for 'a non-routine service or project' which once provided 'will no longer be operated by you or anyone else'; and
- 'full responsibility for the duties, functions and outcomes, or outputs of the job' must remain with the sponsor.
Due to the nature of their work, it might sometimes be difficult for lawyers to fall within the terms of the secondment/contracting-out provisions contained in UKVI’s guidance. Sitting in your client’s office on standby to be dragged into meetings and review contracts at the client’s whim is certainly an excellent service and client-relationship-building arrangement, but it is debatable how well that might fit within UKVI’s guidance. Simply describing such an arrangement as compliant and sticking an end date on it might not fly. Indeed, for other sectors which are scrutinised more heavily by UKVI, similar arrangements are often torn to pieces, with rolling contracts for the provision of services being cited as a reason for enforcement action.
The guidance is stark on the consequences of breaching this point and says: If we find you are supplying the worker, or workers, as labour to another organisation to undertake a routine role or you do not have full responsibility for their duties, functions and outcomes or outputs, we will revoke your licence.
UKVI has snapped towards enforcement and this is borne out by the numbers around enforcement action published by the government. Between January to October 2024 the number of organisations that were subject to compliance visits rose by 22% on the same period the year before. In 2023 there were only 337 sponsor licence revocations, whereas in 2024 there were 1,924 revocations – a huge 471% increase.
Law firms, unsurprisingly, do not figure prominently on UKVI’s hitlist for potential enforcement action, with UKVI preferring instead hospitality and care sectors. Despite the relatively low risk, potentially breaking immigration laws is generally not very appetising for most law firms and if the compliance of secondment arrangements for sponsored workers is not clear-cut, this might be what is happening. Furthermore, if there was a regulatory shift in the UK, politically motivated (like guess where) or otherwise, it is possible that UKVI might be more emboldened to apply pressure and measures against law firms and other parts of the economy.
If a sponsor licence is revoked, it is very difficult to challenge this – there is no right of appeal and the only legal recourse would be judicial review with its costly, time-consuming process and potentially underwhelming public law remedies.
Given the harsh consequences, if seconding a lawyer is a must, the law firm must be careful to structure the arrangement as diligently as possible to ensure it is credible that it falls within the terms of the guidance. The safest option might be to assess and determine if there is anyone else in the team on a different type of visa (or indeed someone who does not need any visa) who can do this placement instead.
Our firm is taking up the issue with UKVI to try and get some reassurance that law firm secondment arrangements might be considered acceptable, or better still to ask that the guidance be updated to lessen the risk to law firms. In the meantime, it is fair to say that the guidance on seconding sponsored lawyers does not always fit well and this is compounded by further issues in relation to potential conflicts of interest or potential breaches of client confidentiality. At the very least, firms that are seconding their sponsored workers would be wise to keep such arrangements under review.
Robert Houchill is a senior associate at Kingsley Napley LLP
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