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Changes to Tier 2 and ILR rules Dec 2017

Tier 2 (General)

The following changes are being made to the Tier 2 scheme:

• Flexibility is being introduced to enable students to apply to switch to Tier 2 after their studies as soon as they have completed their courses. Currently non PhD students cannot apply to switch within the UK until they have received their final results.

• Exemptions from the Resident Labour Market Test are being added for posts to be held by researcher applicants who are recipients of supernumerary research Awards and Fellowships, and for established research team members sponsored by either a Higher Education Institution or a Research Council.

• Pay rates for health sector workers are being brought into line with pay scales in England and each of the devolved administrations, and consolidated in a new table.

• Provision is being made to allow nurses to be sponsored under Tier 2 if they are undertaking an approved programme with a view to returning to practice.

• A provision that is currently set out in the Sponsor Guidance is being incorporated, which restricts how far a migrant’s start date may be put back before it becomes a prohibited change (ie 4 weeks). The restriction now applies only to Tier 2 (General) Migrants, and only to any changes to start date which occur after leave has been granted.

Changes to indefinite leave to remain in work categories

The requirement to have had absences from the UK of no more than 180 days per year in order to qualify for settlement, which currently applies to main applicants, is being extended to partners of Points-Based System Migrants. To ensure that this requirement does not have retrospective effect, only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days.

If you need Immigration legal assistance with your Tier 2 sponsorship licence application or your permanent residency application, please contact us.

April 2015 – UK Visa Vignette and Biometric Residence Permit / BRP – The 16 most frequently asked questions

1) When will I get my biometric residence permit (BRP)? Before or after I travel to the United Kingdom?

You will be able to collect your BRP when you get to the United Kingdom.

2) How do I enter the United Kingdom without my biometric residence permit (BRP)?

If your visa application is approved, your passport will be endorsed with a vignette valid for 30 days from the date of travel you stated as your anticipated date of travel on your visa application form.

The vignette is evidence that you are permitted to enter the United Kingdom.  If you do not travel to the United Kingdom within the validity of your visa (i.e. 30 days), you will need to apply for another visa. There will be a fee payable for this service.

Together with the vignette you should also be issued with a decision letter, which will tell you where you should go to collect your BRP.

The details of your leave (i.e. authorisation to work) will be stated on your BRP.

3) How to I obtain my biometric residence permit (BRP)?

You must pick up your BRP within 10 days of entering the United Kingdom from the Post Office branch stated on your decision letter. If you do not collect your BRP within the given time frame you could be subject to a financial penalty or your leave may be cancelled.

The Home Office / UKVI will allocate a specific Post Office branch relying on the address entered on your visa application.

You should not book any travel arrangement before you have collected your BRP.

4) What do I need to collect my biometric residence permit from the Post Office?

The decision letter which you will get with your visa vignette will tell you the date from which your BRP will be ready for collection as well as the address of the branch holding your BRP. The date and the address are both based on the information you entered on your visa application form.

There is no need to make an appointment to collect your BRP.

When you visit the Post Office to collect your BRP, you must bring with you the passport in which your visa vignette has been endorsed along with your decision letter. The letter will help the Post Office staff locating your BRP. If you forget to bring your passport, you will not be able to collect your BRP.

5) I have lost my decision letter and I am not sure which Post Office branch I should collect my biometric residence permit from, what do I do?

You must send an email to BRPCollection@homeoffice.gsi.gov.uk stating: – your full name, date of birth, nationality, passport number, contact telephone number and case reference number (if known).

6) Could I collect my biometric residence permit from a different Post Office branch to the one stated in my decision letter?

Yes you could. You will have to visit the Post Office branch from which you wish to collect, and ask their staff for your BRP to be re-directed. There will be a fee payable for every permit, which are re-directed. Please note that not all Post Office branches offer the re-direction service.

7) I have lost my passport after arriving in the United Kingdom but before collecting my biometric residence permit. What should I do?

You must send an email to BRPCollection@homeoffice.gsi.gov.uk stating: – your full name; date of birth; nationality; your United Kingdom residential address; passport number; details on how your passport was lost; the date the loss was reported to the Police; a contact telephone number and your case reference number.

The Home Office / UKVI should contact you within 5 working days from receipt of your email.

You should not try to collect your BRP until you have been told to do so by the Home Office / UKVI.

8) Could I send someone else to collect my biometric residence permit on my behalf?

This is only possible if:

–       you have a serious illness or disability that stops you from picking up your BRP; or

–       you are under 18 and cannot collect your permit at the same time as your parent or legal guardian collect theirs.

The person collecting on your behalf will need to provide your passport and evidence of their own ID such as their passport, United Kingdom issued driving licence, European national identity card, United Kingdom issued biometric residence permit.

To be able to send a third party to collect your BRP you will have to send an email to:

3PartyCollection@homeoffice.gsi.gov.uk stating the following: your full name; your date of birth; your nationality; your passport number; the reason as to why you need someone to collect on your behalf; a contact telephone number; your case reference number; and your vignette reference number, which is to be found on the top right hand corner of your visa.

You will also have to provide the person collecting’s details: their full name; date of birth; nationality; the type of document they will present to confirm their ID; the ID document’s reference number; the ID document’s expiry date and the person’s email address.

If the Home Office / UKVI agree to a third party collecting on your behalf, the person you have nominated to collect your BRP will get an authorisation email. They will need to present the said email to the Post Office staff when collecting your BRP.

9) My spouse is the main applicant.  He has already started work and cannot take the time off to collect his BRP.  Could I collect all my accompanying family’s BRPs on my family members” behalves?

Yes ,as long as you have travelled to the United Kingdom together as a family group and you are an adult, you should be able to collect the BRPs on behalf of all your family members.

You need to make sure that the link to the main applicant is shown on all the vignette, for example:  ‘dependant of Jim Smith’.

The adult collecting the cards will have to provide the family group’s passports (endorsed with valid UK temporary vignette).

10) Can I start my employment before collecting my BRP?

If you are allowed to work in the United Kingdom, the Home Office / UKVI strongly advise you to collect your BRP before you start work. Having said that if you need to start work before collecting your BRP, you should be able to demonstrate your ‘right to work’ by presenting your temporary vignette visa in your passport to your employer as long as the visa has not expired. Once your vignette visa has expired you will not be able to carry on working until you are able to present your original BRP to your employer/sponsor.

11) Should I carry my BRP with me when I travel outside the UK?

Yes you must carry you BRP with you as you will need to present it at the Immigration desk at the port of entry. The Immigration Office will expect to see your BRP along with your valid passport each time you re-enter the United Kingdom during the validity of your full leave.

Although your BRP is in itself evidence that you are allowed to re-enter the United Kingdom, it does not replace your passport or travel document when traveling to the United Kingdom or any other European countries.

12) I have lost my biometric residence permit, what should I do?

If your biometric residence permit is lost or stolen, you must report the loss or theft to Home Office / UKVI as soon as possible by sending an email to BRPLost@homeoffice.gsi.gov.uk

You will be required to provide the following details: – full name; – date of birth; – nationality; – passport number; – contact details;- BRP reference number;- case reference number; and – when, where and how the loss or theft occurred.

You must also report the loss or theft to the police. You will need to obtain a police report and a crime reference number.

If your BRP is lost or stolen while you are in the United Kingdom, you will have to apply for another permit within 3 months of reporting the loss or theft of your initial biometric permit, using the form BRP (RC).

If your permit is lost or stolen while you are outside the United Kingdom, you will have to apply for a Replacement BRP visa before returning to the United Kingdom. After that you will have to apply for a new biometric residence permit within a month of re-entering the United Kingdom. If you fail to apply for a replacement permit, you may have to pay a financial penalty of up to £1,000, or the Home Office / UKVI may shorten your permission to stay.

13) Can I change my personal details on my biometric residence permit?

BRP holders must inform the UKVI as soon as possible when there a change of name, gender, nationality, significant facial appearance.

So if any of your personal details listed above or shown on your biometric residence permit have changed, you must apply for a new permit within three months of the change, using application form for no time limit (NTL) for those with indefinite leave to remain/permanent residency or an application for transfer of condition (TOC) for those with limited leave to remain.  If you fail to do this, you could have to pay a financial penalty of up to £1,000 or the Home Office / UKVI may shorten your permission to stay.

14) I am in the UK as a Tier 2 sponsored worker and I have now lost my job/ I am in the UK as a Tier 4 student and I have just changed my course.  Should I inform the Home Office / UKVI?

If your circumstances change you must inform the UKVI immediately.

This applies if you no longer qualify to remain in the United Kingdom under the Immigration Rules that were in place when the Home Office / UKVI gave you permission to stay in the United Kingdom (for example you are no longer working for your Tier 2 sponsor or if you are a Tier 4 student you have changed your course and/or education provider /sponsor or you are no longer studying).

You must tell the UKVI of any changes to your circumstances, by completing a Migrant Change of Circumstances (MCC) form.

15) The information on my biometric residence permit is not correct / Someone else might be been using my permit / My permit is damaged / My permit is faulty. What should I do?

You must inform the Home Office / UKVI immediately by sending them an email at: BRPError@homeoffice.gsi.gov.uk

You will have to provide them with: your full name; date of birth; nationality; passport number; a contact telephone number; BRP reference number; case reference number; and details of what has happened to your BRP (for example the Immigration Officer was unable to scan your BRP when you last entered the United Kingdom – your BRP is probably faulty)

16) I am an employer/sponsor, how does the introduction of biometric residence permits will affect what I do in terms of the right to work checks?

The introduction of the BRP for both in and out of country applicants, has led the UKVI to produce very detailed guidance, highlighting the level of inspection expected from employers/sponsors when checking the BRP’s validity.

The guidance state that when you are presented with a BRP you should: – look at the permit carefully and ask yourself if you think it has been tampered with; – check the permit number (it should start with two letters followed by seven numbers); – check the holder’s image to ensure that it matches the migrant; – check the ‘tactile feature’ to make sure that you can feel the raised design at the back; – feel the permit (it should not be bent or folded and should feel thicker than a photocard driving licence); – check the biographical details to ensure that they match that of the migrant; – check the migrant’s immigration conditions on both the front and the back of the permit.

If having carried out these checks you are still concern that the card may not be genuine, you should check whether the BRP presented to you is valid by visiting the Home Office / UKVI’s online ‘right to work’ checking service. This is can be accessed  at: https://www.gov.uk/check-biometric-residence-permit

To file a request for the ‘right to work’ check you will need to provide the UKVI with the following information:

– the name of the person making the check,

– the name of the organisation or business making the check,

– the email address of the organisation or business making the ‘right to work’ check to which the Home Office / UKVI’s response will be sent. If the organisation or business does not have a dedicated email account, you should give the Home Office / UKVI the most appropriate email address,

– the contact telephone number of the organisation or business making the check. If the organisation or business does not have a dedicated telephone number, you should give the Home Office / UKVI the most appropriate personal telephone number,

– the biometric residence permit card number,

– the name as it appears on the card (if there is only one name, put it in the top box),

– the date of birth as it appears on the rear of the card.

The Home Office / UKVI should return all checks within 6 working hours (08:00- 17:00, Monday to Friday, except bank holidays).

Once the check has been completed, the Home Office / UKVI should send you a certificate to the email address you gave them. This certificate will confirm if the biometric residence permit is valid and give you the ‘right to work’ status of the person. You should keep this confirmation as part of your compliance documents.

A sponsored migrant can start work before collecting their BRP as long as they are able to prove their right to work in the United Kingdom by presenting you with their short validity vignette visa duly endorsed in their passport. A right to work check can be carried out on the basis of the vignette. You must, however, ensure that you conduct another right to work check on the basis of the migrant’s BRP, once the vignette in the passport has expired (at the latest).

For further information on any of the above, please do not hesitate to email us your queries.

January 2015: ILR missing records of absences..counting the days

Migrants who travel extensively may have trouble compiling an accurate schedule of absences to support their application for ILR, especially those who used IRIS in the past or those who are using the ePassport gates under the Registered Traveller Scheme. This is due to the fact that their passports will not have been stamped on entry.

Migrants who have no or very few records of their travels because they have lost their previous passports or have a large number of their trips that were not recorded by the Immigration Officer at the port, can always approach the Home Office by filing a subject access request (SAR) to get a copy of their immigration files.

However it would appear that this strategy may not always pay up if we are to rely on a recent Home Office’s letter responding to a (SAR) which stated: ‘You should be aware that not all Landing Cards are retained by the Home Office – for example, those cards for foreign nationals who are simply re-entering on their existing long-term permission to remain are not retained. This will explain why we do not hold card copies or records for every time you have traveled. Furthermore, nor do we hold all data electronically for entries/exits to/from the United Kingdom. Although you may have seen reference to the Home Office’s e-Borders system, you should be aware that this, so far, only covers 55% of all passenger movements in and out of the United Kingdom and some routes are not yet covered. You may therefore have undertaken a journey not currently covered by e-Borders.’,

Whilst the Home Office may have kept records of some migrants’ comings and goings, they will not have any evidence of re-entries via IRIS. It is understood that these data were destroyed when the IRIS scheme was closed.

It would appear that in most cases, when considering an ILR application, the Home Office has to rely on the migrant’s passport and schedule of absences to decide whether the continuous residence requirement has been met.

To avoid any undue complications when applying for ILR, migrants should keep a record of all their travels and ensure that their passport and BRP are kept safe at all times.

For further information on how to calculate your absences and find out whether you have broken your continuous residence click here.