Tag Archives: delays

Protecting EEA nationals’ rights of residence post Brexit

What should EEA nationals in the UK do now to protect their rights?

Whilst it was initially assumed that the rights of EEA citizens living lawfully in the UK would be automatically protected, their long term status is now far from guaranteed.

Those who have already acquired permanent residence and those who have an EU right of residence but have yet to acquire permanent residence are more likely to be protected. Although strictly speaking EEA nationals are not required to document their rights, in the light of the recent developments, it would be highly advisable to obtain documents proving the exercise of EU law rights in their status in the UK.

Documents proving the exercise of EU Law rights include:

For EEA national workers and their EEA national family members

– A UK Document Certifying Permanent Residence for those who have already acquired permanent residence automatically by the operation of Law having exercised treaty rights for a continuous period of 5 years; and

– A UK Registration Certificate for those currently exercising treaty rights in the UK who have yet to acquire permanent residence

For non- EEA family members of a qualified person or an EEA national with right of permanent residence

– A UK Residence card

For non-EEA family members of EEA nationals who have acquired right of permanent residence

– A UK permanent residence card

Which form?

The EEA (PR) is for permanent residence of EEA nationals and their family member;

The EEA (QP) is for residence certificate for EEA nationals – the Home Office offers an express service at some of his premium service centers;

The EEA (FM) is for residence card for non-EEA family members and those with retained rights

The EEA (EFM) is for residence card for extended family members defined as dependant relatives

The DRF1 is for applications by family members on the basis of derived rights of residence.

What is the cost?

There is currently a mandatory fee of £65.

Non EEA family members are required to enroll their biometric information when applying for their residence card. This process costs an additional £19.20.

How long does it take?

The Home Office has an obligation to issue residence documents within six months of application.  Whilst most applications from EEA nationals are dealt with within weeks, applications from non-EEA nationals usually take months.

If you need Immigration legal assistance, please do not hesitate to contact us.

 

Further changes to the Tier 2 Intra Company Transfer and Tier 2 General routes

February 2017 –

The new Tier 2 & 5 Guidance has now been published following the changes introduced in November 2016.

Change of circumstance requests normally take up to 16 weeks to be processed. The Home Office has now launched a new fee paying service to expedite certain types of requests, which include requests for an increase of an unrestricted CoS allocation, requests to replace the Authorising Officer, requests to add a new Level 1 user etc… The service offers a 5 working day turn around at a cost of £200 per request.

The start date on the CoS can no longer be delayed by more than 4 weeks. If the sponsored worker is unpaid for more than 4 weeks from the original start date, the sponsorship must be withdrawn. It is therefore pivotal that the start date be chosen carefully bearing in mind possible delays with the entry clearance process resulting from, for example: – delays with IETLS score / police clearance; – no priority service availability; – prolonged notice periods etc..

The new guidance states that for compliance purposes all documents listed in Appendix D must now be kept for one year from the date the sponsor ends the sponsorship or until a compliance officer has approved them, whichever is the shorter period.

Keeping a detailed job description is no longer required as long as the copy of the advert includes the job title, main duties and responsibilities, skills, qualifications and experience needed together with an indication of salary package or salary range and the closing date for applications. A job description must still be held on file where no Resident Labour Market test has been undertaken.

Whilst there is still a requirement for sponsors to keep all applications shortlisted for final interview, the ‘interview notes’ are now only required for rejected settled worker applicants. It follows that if no settled workers have been interviewed, the sponsor is not required to retain reasons as to why other applicants were not offered the role. Settled workers are EEA nationals, British nationals and applicants with Indefinite Leave to Remain in the United Kingdom.

Tier 2 (General)

The minimum salary threshold has increased from £20,800 to £25,000 per annum.

The following professions are exempt from meeting the new salary threshold until July 2019: Nurses, medical radiographer, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science and mandarin.

Roles aimed at UK graduates overseas will be granted additional points in the restricted CoS allocation assessment table.

Graduate trainees will be permitted to change their occupation within the graduate programme without having to undergo the Tier 2 process again.

Tier 2 (Intra Company Transfer)

The minimum salary threshold for Tier 2 (ICT) Short Term Staff has increased from £24,800 to £30,000 per annum.

The Tier 2 (ICT) Skills Transfer category is now closed to new applicants.

The minimum salary threshold for Tier 2 (ICT) Graduate Trainee category has decreased from £24,800 to £23,000 per annum. The cap has also increased from 5 to 20 graduate trainees per annum for each licenced sponsor.

Further changes to come in 2017

It is anticipated that by April 2017 further changes will be implemented. These changes will include:

– further increases to the minimum salary thresholds;
– closure the Tier 2 (ICT) short term category;
– introduction of a mandatory Immigration Skills Charge (‘ISC’) for all Tier 2 migrants, set at £1000 per annum at present.

If you need Immigration legal assistance, please do not hesitate to contact us.

Travelling without BRP

November 2016 –  The lack of clear published guidance on this particular problem has recently led us to approach the Home Office to seek clarification.

Below you will find verbatim extracts from their answers to our questions.

When asked about re-entering the UK without a BRP after the expiry of the temporary vignette, the Home Office stated: ‘The Border Force Officer (BFO) will undertake various mandatory checks including confirming the passenger’s nationality and identity as stated in a valid passport. The BFO, in absence of a BRP, can verify the immigration status of the passenger using the government database. It the officer is satisfied the passenger can be granted entry and the passport endorsed with an open date stamp and a manual annotation of the BRP’s unique number above the endorsement’…’the passenger will normally be encouraged to collect their BRP before travelling again’.

 Although this seems to indicate that travelling without BRP in these circumstances might be possible, in our experience most BFOs will strongly advise against it.

As airlines are not supposed to carry visa nationals without a valid visa, the guidance states that: ‘ visa nationals are likely to experience significant barriers to returning to the UK as carriers will be reluctant to provide carriage to an individual for whom they may be liable to a penalty. In the case of a isa national who arrives without their card or any other evidence of their continuing leve, unless there has been prior agreement by the port Border Force Higher officer or the Immigration Liaison Managers (ILM) for them to travel, carriers liability action must be considered.

If you need Immigration legal assistance, please do not hesitate to contact us.

 

Delays with issuance of BRP cards

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.

Right to Work Checks – Workers and Employers Beware

July 2016 –The Home Office has tightened the noose on illegal working even further. This could have a considerable impact on foreign workers and employers alike if ignored.

LEGAL BACKGROUND

Sections 34 and 35 of the Immigration Act 2016 came into force on 12 July 2016.
Section 34 amends the Immigration Act 1971 by introducing a new offence of illegal working (section 24B).
Section 35 amends section 21 of the 2006 Act, which sets out the criminal office of employing an illegal worker.

ILLEGAL WORKING:

With effect from 12 July 2016, under section 24 B of the 1971 Act (as inserted by section 34 of 2016 Act) a person commits the offence of illegal working if he is:
• subject to immigration control and works when disqualified from doing so by reason of his immigration status; and
• at the time, he knows or has reasonable cause to believe that he is disqualified from working by reason of his immigration status.

A person has been disqualified by reason of his immigration status if:
• he has not been granted leave to enter in the UK; or
• his leave to enter or remain in the UK: – is invalid; or – has ceased to have effect (due to curtailment, or revocation, or cancellation, or passage of time); or
• is subject to a condition preventing the person from doing work of that kind.

In other words, a person commits this offence if they are subject to immigration control and work when they know full well, or have reasonable cause to believe, that they have not permission to do so.

The offence of illegal working is not limited to working under a contract of employment and is intended to cover all types of work, including apprenticeships and self-employment.

Under the new offence, wages from illegal working can be seized as the proceeds of crime. In England and Wales carries a maximum penalty of six months’ imprisonment and/or an unlimited fine. The fine is limited by status in Scotland and Northern Ireland.

EMPLOYING AN ILLEGAL WORKER

Section 21 of the 2006 Act (as amended by section 35 of the 2016 Act) an employer commits an offence if he employs an illegal worker and knows or has reasonable cause to believe that the person has no right to do the work in question. This means that an employer can no longer evade prosecution by claiming that they did not know that the employee in question had no permission to work.

The amended offence allows the investigating agency to prosecute employers when it is found that ‘the employer have reasonable cause to believe that the employee could not undertake the employment, even where they perhaps deliberately ignored the information or circumstances that would have caused the employer to know that the employee lacked permission to work.’

The offence of employing an illegal worker is not limited to staff under a contract of employment, it also applies to contracts of service or apprenticeship, whether expressed or implied, whether oral or in writing.

The maximum sentence on indictment for this offence has been increased from 2 to 5 years.
The civil penalty of up to £20,000 per illegal worker will continue to be applied as sanction in most routine cases – however the Home Office has warned that in serious cases, prosecution may be considered where it is an appropriate response to non compliance.

The UKVI have published a new guide, which can be found at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf

The guide applies to checks required on or after 16 May 2014.