The starting point is that the advisor must work under the terms of a formal service contract — a consulting contract of any kind. While the existence of such a document is not conclusive proof of the status of the parties, such an agreement is concluded in a manner that tends to show the relationship as that of the client advisor and not of the worker and the employer. The agreement is only important on the basis of the conditions it contains. Conditions only play a role, firstly when they tend to show a service contract and, secondly, if the parties comply with them. Is the advisor «threatened» during the execution of the contract? The provisions of the agreement on liability, compensation and insurance should make this clear. This is another strong indicator. Employees usually can`t be sued for an accidental disaster, but consultants can. It is natural to be concerned about any new business model. When the Work Permits Scheme was introduced in 1999 to meet the UK`s staffing needs, most businesses across the UK were also worried, but the first pioneers to hire foreign workers with work permits immediately gained an edge over their competitors. Until 2002, almost all major UK companies employed migrants under the work permit scheme, and when the UKBA made it much more expensive and complex by introducing the points-based system, most of them became shareholders in the new system due to the high standards and work ethic demonstrated by the majority of its migrant staff, and this trend continued, until the government introduced the immigration cap. One of the biggest differences between the points system and the Ankara agreement is that of certainty. In recent years, the government has so often postponed target positions to recruit migrants that the system seems almost arbitrary. The Ankara agreement does not allow the government to make changes due to the standstill clause that froze immigration rules for Turkish nationals.
As a result, the Turkish contractor and the British contractor can continue to act, knowing that only the immigration rules that existed in 1973 (i.e. HC509) can apply to the Ankara Agreement. The only way the government could ever apply the immigration cap to Turkish nationals would be to renegotiate the treaty directly by the Turkish government. If you have a vacancy in your organization that requires a highly specialized capacity, difficult to acquire, or if the position temporarily requires a person, contact us to discuss the option of outsourcing the vacancy to a Turkish contractor. Developing this business model would require no bureaucracy, no binding employment contract, or the requirement to grant a sponsorship license to PBS. Therefore, the risk is minimal if it does not work. However, if it works, the benefits would be phenomenal and give your business a competitive advantage. HMRC decides whether ir35 applies or not. What matters is not the written agreement or what the parties have agreed, but rather the relevant facts about the contract. If you plan to become a consultant under a corporate structure, you need documents for the new entity.
You also need an advisory contract that specifies as clearly as possible your relationship with your client. When a consultant works through an agency, it is particularly important that the agreement is in the right form, as temporary agency work tends to fall short of the rules. Tilbury Consulting Limited won the case on the basis of an examination of three relevant areas: the written agreement; the actual practice of work and the situation «in the cycle». . . .