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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.

ILR Refusal due to Deception

March 2016 – The statement of changes of the Immigration Rules, which are due to come into effect on 6 April 2016, could bear bad news for those planning to extend their leave or apply for settlement under the family route.

Up to now, when considering the suitability of a FLR (M) / SET (M) applicant, the Home Office would have had to disregard previous ‘deception’ in line with S-LTR.2.2 / S-ILR.2.2.

With so many Tier 1 General ILR applications being refused on the grounds of deception due to discrepancies between earnings declared to the UKVI and earnings declared to the HMRC, we see many applicants choosing to vary their leave under the family route rather than taking the chance of getting their settlement application rejected.

Unfortunately under the amended rules this option may no longer be ‘bullet proof’.

Indeed S-LTR.4.1 and S-ILR.4.1 provide that an application may be refused on the ground of suitability if ‘the applicant has made false representation or failed to disclose any material fact for the purpose of obtaining a previous variation of leave, or in order to obtain a document from the Secretary of State or a third party, required in support of a previous variation of leave’ or ‘the applicant has made false representation or failed to disclose any material fact for the purpose of obtaining a document from the Secretary of State that indicates that he or se has right to reside in the UK …’

With the noose tightening, applicants who may have committed deception unknowingly- which will be the case for most Tier 1 General applicants whose tax declaration would have been made following the recommendations of their accountants without realising the potential repercussions, will find their immigration options limited even further.

 

 

April 2015 – NHS surcharge for applicants both inside and outside the UK

The government is set to recoup up to £1.7 billion over the next ten years to help pay for the cost of NHS treatment given to temporary migrants.

The Legislation that came into effect on 6 April means that going forward nationals from outside the European Economic Area (EEA) coming to the UK for longer than six months will be required to pay a ‘health surcharge’ when they make their immigration application.  This surcharge must also be paid by non-EEA nationals already in the UK, who are applying to extend their stay. The surcharge does not apply to Tier 2 Intra-company transferees, Nationals of Australian and New Zealand – below is a detailed list of all exemptions .

The health surcharge is £150 per year for students and £200 per year for all other migrants to whom the surcharge applies. It is payable upfront and for the total period of time for which migrants are given permission to stay in the UK.

So who is to pay the NHS surcharge?

Considering that a migrant worker coming to the UK for 5 years with 2 dependants, is liable for a charge of £3000, which comes on top of the actual visa fees of £3384, the surcharge will act as a very strong deterrent on most migrants. Sponsors are very likely to have to have to pick up the bill which in most occasions will double their HR immigration budget. As the NHS surcharge is non refundable, sponsors may consider including a claw back clause in the migrant’s contract.

Many of our clients have already commented that Tier 2 migrants contribute to the UK economy through taxation. Bearing in mind that they are subject to NI contributions, with this surcharge they will end up paying for the service twice. The Home Office’s response to this is: ‘the intended effect of the surcharge is that a person’s access to healthcare should be in line with their immigration status in the UK. Temporary migrants have not built up the long term contribution to the UK that a British Citizen will have built up and will build up over the course of their lifetime.’

Who is exempt from paying the surcharge?

A summary of exemptions is listed below.

Visitors, and where the grant of entry clearance (permission to stay in the UK) is for 6 months or less.

Intra company transfers (Tier 2 skilled workers).

Children under 18 years taken into care or in the care of a local authority.

Migrants making an application for asylum, humanitarian protection, or a claim that their removal from the United Kingdom would be contrary to article 3 of the European Convention on Human Rights.

Victims of human trafficking.

A migrant who applies under the Home Office concession known as the ‘destitute domestic violence concession’.

Dependents of a member of Her Majesty’s Forces.

As a dependant of a member of another country’s Forces who is exempt from Immigration Control.

Those making an immigration application related to an EU obligation, such as an application under the Turkish European Communities Association Agreement, are exempt.

Nationals of Australia or New Zealand.

A British Overseas Territory citizen who is the resident of the Falkland Islands.

What about the tourists, do they have to pay the health surcharge too?

No, Tourists travelling on a visitor visa [or EEA nationals] are not be liable for the surcharge. In fact from April 2015 those entering the UK on a visitor visa will be charged 150% of the cost of any medical treatment they receive from the NHS.

Please do not hesitate to contact us if you have any questions on any of the above.