Tag Archives: passport

WRS and Naturalisation

Aug 2017
Impact of failing to register under the Worker Registration Scheme on the naturalisation process.

Many of EU A8 nationals who came to the UK between 2004 to 2011 and failed to register under the Worker Registration Scheme, are now hesitant to apply for a document confirming their permanent residence and / or British nationality.

Whilst it is now clear that the lack of registration does not disqualify a worker from obtaining a document confirming their permanent residence, the impact of on the naturalisation process remains unclear.

A response to a FOI request in Jan 2017 appeared to indicate that if a document confirming permanent residence had been granted, the lack of registration would be unlikely to be considered as an element of good character consideration. The FOI read: ‘ Just not registering and not realizing you had to is unlikely to be a character issue’.

Since the Home Office have confirmed that they not in fact hold any policies, guidance or other related information, which relate to registering under the Worker Registration Scheme as part of the consideration of an application for British citizenship, we questioned the basis on which the response to the FOI in Jan 2017 was given.

Part of the Home Office response read as follows:

‘ it is unlikely, presumably on the basis that our good character guidance is quite extensive and, given that is it not mentioned there is an indication that it is not a significant factor. To clarify, in order to acquire permanent residence an EEA applicant has to show that they were lawfully residence and exercising Treaty rights for a continuous period of 5 years’

The assumption is that if you qualified for permanent residence, the absence of registering under the WRS would not be a factor considered under the good character requirement for obtaining British citizenship.

As the proposed new Brexit EU settlement process may require EU nationals who have already been granted an EEA PR document to have their rights to remain in the UK re-assessed, filing for naturalisation at the earliest remains the safest option at the point in time.

If you need Immigration legal assistance with your EEA PR or naturalisation application, please 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.

British Citizenship for EEA applicants. Date of issuance of PR card not always relevant.

January 2016 – Under the British Nationality Act 1981 to qualify for British citizenship an applicant must show, amongst other things, that he or she is settled in the UK (i.e. he or she is free from any immigration restriction on the period for which he or she might remain in the UK).

Under normal circumstances, citizens of EU and EEA countries and their family members automatically gain permanent residence after exercising their treaty rights in the UK for 5 years.

Until November 2015, citizens of EU and EEA countries, who had automatically gained permanent residence in the UK, could apply for naturalisation providing that they could show that they had been free from immigration restriction for at least 12 months prior to filing for British citizenship.

Pursuant of British Nationality (General) (Amendment No. 3) Regulations 2015, citizens of EU and EEA countries are now required to apply for a permanent residence card before they can apply for British citizenship.  To do so, they are expected to complete the 85 page long EEA (PR) form and pay a processing fee of £65 per applicant.

Bearing in mind that the EEA Caseworking is taking on average 6 months, this additional requirement is going to extend the naturalisation process, which is by nature already a very protracted exercise, considerably.

Over the last few months, many of our clients were advised by the UKVI’s helpline and some of the Nationality Checking Centres that they would have to wait 12 months from obtaining their PR card before being able to file for naturalisation. The rational being that the PR card would in essence recognise their permanent residence only from the date of the card’s issuance rather than from the date they became permanent resident automatically by operation of EU law.

For instance, a Spanish national working in the UK since 2000 but issued with a PR card in 2015 would have to wait until 2016 to qualify for British Citizenship.

This interpretation of the regulations seemed to be at odds with EU Free movement law and needed to be clarified.

Following a recent FOI request the nationality policy team have now confirmed that permanent residence is acquired following 5 years of residence in accordance with the EEA Regulations and not on the date the residence card is issued. The date an applicant is deemed to have acquired permanent residence is recorded on the UKVI’s database and will be noted by the caseworker processing the naturalisation application.  It would appear that this information has yet to filter down to the army of staff dealing with ad-hoc enquiries.

 

For further information, please do not hesitate to contact us.

Risks of travelling to the UK without your BRP card

 August 21015 – BRP Holders beware! 

 

With the in-country BRPs taking between 3-10 working days to be issued and overseas applicants having 10 days from arrival in the UK to collect their BRPs, many of you may be tempted to travel prior to receiving your card. This may also be the case when your card has been lost, stolen and as a result of work commitments you simply have not had the time to request a replacement card before travelling. For those in this situation, your main concern will be whether or not you will be allowed to re-enter the UK and if so, will it be in your given immigration category rather than as a tourist. This is, of course, very pertinent, since should you be allowed back in the country as a tourist, your previous leave would be superseded and the permission (to work for instance) attached to it would lapse.

 

According to the current Border Force Manual, passengers arriving without BRPsshould be issued with form IS81 and be required to provide their fingerprints…… Upon verification of the individual’s identity and status their passport can be endorsed with an open date stamp…If the passenger has had their BRP stolen or lost, they do not hold any evidence of the leave they have been granted or the conditions of their leave and under the UK Borders Act 2007 are required to obtain a replacement BRP, within three months of notification. Those individuals who do not apply for a replacement BRP may be subject to a civil penalty of up to the maximum of £1000 if they do not comply. ‘

 

Based on the Manual’s instructions, as long as your ID and status can be verified you should be allowed back into the UK without jeopardising your immigration status. That is, of course, not guaranteed as ultimately the decision will be at the discretion of the IO at the port considering the particulars of your circumstances. In any case those who reported their card as lost or stolen over 3 months ago, will still run the risk of being fined up to £1000.

 

Visa nationals, however, are very 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.

 

Indeed, the Border Force Manual provides that: ‘In the case of a visa national who arrives without their card or any other evidence of their continuing leave, unless there has been prior agreement by the port HO or the ILM for them to travel, Carriers Liability action must be considered.’

 

BRP holders are recommended to keep their passports and BRP cards secured at all times. It would also be highly advisable to carry a copy of their documents when travelling abroad as well.

 

Disclaimer: The information contained in this article is for general guidance on matters of interest only. The application and impact of laws can vary widely based on the specific facts involved. Accordingly, the information on this site and in this article is provided with the understanding that the authors and publishers are not herein engaged in rendering legal or other professional advice and services. As such, it should not be used as a substitute for consultation with professional legal or other competent advisers. Before making any decision or taking any action, you should consult Entry Clearance Services Ltd.

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.

Naturalisation

Naturalisation is the process by which British citizenship is acquired by someone who held  foreign citizenship.

Although there are several routes to naturalisation, most applicants qualify for British citizenship through: – five years of residence in the UK; – or through marriage to a British citizen with three years’ residence in the UK as a spouse or civil partner.

In addition to the residency requirement, most naturalising citizens must hold indefinite leave to remain and meet requirements of ‘good character’, ability to communicate in English (or Welsh or Scottish Gaelic), and ‘knowledge of life in the UK’ (as assessed by a Life in the UK test, also required for those applying for settlement). Children may qualify for either automatic or discretionary “registration” as British citizens depending on the country of their birth and nationalities of their parents.

The Home Offices offers a checking service for nationality applicants. Applicants using the service can keep their original valuable documents such as passports and marriage certificates rather than submitting them with their applications.

Naturalisation Checking Service

Filing your naturalisation application without relinquishing your passport. The UKVI provides a checking service whereby an applicant can file their application for naturalisation without having to submit their original passport.  The checking service is usually offered by the applicant’s local authorities. Appointments are often required. For more information please contact us.

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