NIM33259 - Special Cases: India - Mariners
Social security agreement between the UK and India: Mariners
Articles 9(1) and (2) of the India Agreement
Article 9(1) of this agreement, which is subject to the provisions of Article 9(2), provides that where a person is carrying out an activity as an employed person on board a vessel at sea flying the flag of either the UK or India, that activity is to be treated as being carried out in the country whose flag the vessel is flying.
This means that where a person in scope of this agreement (in accordance with Article 4 and 6) is employed on a vessel flying the flag of country A, they will be treated as if they are pursuing their employment in country A. The legislation of country A will apply in accordance with Article 7(2), and when applying the legislation of country A, Article 7(3) requires that the person is treated as if they are resident and ordinarily resident in country A.
Article 9(2) of this agreement provides for a person who is in scope of this Agreement and who:
· is employed on a vessel flagged in one country (country A);
· is paid for this employment by an undertaking or a person whose registered office or place of business is in the other country (country B); and
· is habitually resident in country B
to be treated as carrying out that activity in country B and they will therefore be subject to the legislation of country B in accordance with Article 7(2). The person or undertaking paying the employee’s wages shall be treated as the employer for the purposes of the applicable social security legislation.
This means that where a person, in scope of this Agreement, who is habitually resident in the UK and is employed on an Indian flagged vessel but is paid by a person or undertaking in the UK, they will be subject to UK legislation.
Example
Leslie habitually resides in the UK and has previously been employed in the UK, paying UK NICs. Leslie takes up employment on board an Indian flagged vessel. In accordance with Article 9(1), Leslie will be treated as carrying out this employment in India and will be subject to Indian social security legislation under Article 7(2).
Example
Jay habitually resides in the UK and has previously paid UK NICs. Jay is employed on board an Indian flagged vessel, but he is paid by an undertaking with its registered office in the UK. In accordance with Article 9(2), Jay will be treated as carrying out this employment in the UK and will be subject to UK social security legislation under Article 7(2). When applying UK social security legislation, Jay will be treated as resident and ordinarily resident in the UK, in accordance with Article 7(3). The undertaking paying Jay’s wages will be considered as the employer when applying UK social security legislation to Jay’s employment.