November 2016 – Tier 2 Sponsors: How to deal with delays with Biometric Residence Permit issuance.
Under the current process, a sponsor worker coming to the UK for more than 6 months will normally be granted a temporary vignette of 30 days during which they are expected to enter the UK. Upon entering the country, they will have 10 days to collect their Biometric Residence Permit (BRP).
Over the last few months we have seen an increasing number of cases when sponsored workers have been unable to collect their BRP before the expiry of the temporary vignette.
This has been particularly problematic for sponsors as they find themselves unable to carry out the right to work checks and as a result run the risk of being found non-compliant with the risks that this entails.
The other issue that has stemmed from the delays is the difficulty, if not altogether the inability, a sponsored migrant faces when travelling out of the UK once their temporary vignette has expired.
The lack of published guidance on this particular issues has led us to approach the Home Office to seek clarification. Below you will find verbatim extracts from their answers to our questions.
Right to Work Checks
With regard to the Right to Work Checks, we asked the Home Office what their position was when the temporary vignette had expired and the BRP card had yet to be manufactured. Their answers read as follows:
‘If a migrant has entered the UK with a 30 day vignette but this has expired before their BRP has been manufactured, an employer will be able to establish the migrant’s continuing entitlement to work by contacting the Home Office employer checking service. An employer who holds a certificate of sponsorship in respect of a migrant who has been admitted to the UK with a 30 day vignette will know that production of a BRP is in train’.
When we enquired whether a sponsor should consider suspending an employee until the card is manufactured / ready for collection / delivered, the Home Office re-iterated:
‘ The sponsor has a responsibility to ensure the migrants they employ have the right to work in the UK. In a case in which the manufacture of a BRP has been delayed beyond the expiration of the 30 day vignette, the employer will be able to confirm that the migrant has a continuing right to work in the UK by contacting the employer checking service. An employer who has sponsored a Tier 2 migrant worker to enter the UK will have issued a certificate of sponsorship, will know that production of a BRP is underway and may not therefore need to contact the employer checking service’
We also asked what would happen during a PBS audit if a sponsor was unable to produce a copy of the BRP as the result of the manufacturing delays. The Home Office referred to the caseworkers guidance, which states:
‘ Employers must keep copies of passports and biometric residence permits for all sponsored migrants to comply with their record keeping duties as a sponsor’.
Unfortunately, the guidance does not deal specifically with occasions where production and delivery of a BRP is delayed. The Home Office have however indicated that they encourage pragmatism in their officers when conducting visits and collating and gathering evidence of compliance. They further commented:
‘ where there has been a legitimate delay we would seek to seeking to obtain evidence of that delay, for example by the way of correspondence and to ensure that the sponsor has a recordable audit trail of the issue. This would then be followed up by the visiting officer post visit. Verification of leave status is fundamental and standard part of all of our visiting activity’.
In terms of the Immigration status of a migrant once the temporary vignette has expired, the Home Office confirmed that:
‘if production of a BRP has been delayed beyond the expiry of the vignette, the migrant still has the benefit of the full period of leave granted to them’.
For further information, please do not hesitate to contact us.