Tag Archives: permit

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.

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.

Impact of Criminal Record Certificate requirement on Tier 2 applications

August 2015 – The new criminal record certificate (CRC) requirement which will become applicable in September to all Tier 1 (investors and entrepreneurs) migrants, is now likely to be rolled out to Tier 2 out of country applicants in early 2016.

Pursuant to this new requirement, all applicants will be asked to provide a CRC from any country in which they have lived for 12 months or more in the 10 years preceding the filing of their visa applications. Any dependants aged 18 or above will also have to comply.

The impact of the CRC requirement on Tier 2 applicants and their sponsors will be felt immediately in terms of time and cost.

TIMING

The processing time for obtaining a CRC varies from country to country and can take much longer when the applicant is no longer a resident of the country in question. For instance, it takes a non resident approximately 4 weeks to 7 months to obtain a certificate from Pakistan, 5 to 8 weeks from Poland, 6 to 9 weeks from Japan, 2 to 5 weeks from Taiwan, 4 to 5 weeks from Russia and approximately 12 weeks from the US.

In most cases it will therefore be imperative that the CRC be requested from the outset of the visa process to avoid long delays.

COSTING

The initial cost is not in itself prohibitive (from as little as £1 up to approximately £80). However we need to bear in mind that all certificates not issued in English must be officially translated. In some occasions they may also need to be legalised and authenticated. This is very likely to add hundreds of pounds to what is already a very costly administrative process.

POTENTIAL ISSUES:

– There are countries where there are no functioning criminal record regimes or where certificates are only issued to citizens. Fortunately the Home Office has made a concession for applicants where there are no available checks from a particular country. However in these circumstances applicants will be required to provide evidence that the checks were not available, which is not always going to be feasible. Relying on this concession is likely to make the outcome of the visa application even less predictable.

– Certificates must be submitted in support of a visa application within 6 months of being issued. This restriction may lead to a new certificate having to be requested. This will be the case when, for instance, the applicant is dealing with multiple certificates and a certificate is no longer valid by the time the rest of the certificates have been issued.

In preparation for this new requirement sponsors would be well advised to prepare a list of the countries they or their employees are likely to have to obtain certificates from so that to check the information provided by the Home Office and make sure that the entire process is mapped out in advance. Employers/sponsors will also need to consider who will bear the costs associated to getting the certificate(s).

For further information please contact us.

From 1st Sep 2015 – Overseas criminal record required for Tier 1.

In April 2015, the Home Office introduced a new rule, which requires applicants to provide an overseas criminal record certificate from any country they have lived in continuously for 12 months or more over the past 10 years.

This change is very likely to slow down the visa/ entry clearance process considerably as in some countries it can take months to obtain a criminal record. In addition the certificates issued in a foreign language will also have to be officially translated.

Those who have lived in various countries before applying for a UK visa, could be facing a very costly and protracted process.

As the certificates will only be valid for 6 months from issuance, some candidates who have lived in various countries where the process is very lengthy, may find themselves in a position whereby one of their certificate has expired by the time the other certificate has been issued. To add to an already painful administrative process, some countries do not accept postal applications and demand that requests be filed in person (or via a friend or family or someone with power of attorney), even if the applicant is no longer resident there.

This new requirement will be introduced in phases, which will start with Tier 1 (Investor and Entrepreneur) applicants, and their adult dependants.

The requirement does not currently apply to extensions or in-country switching applications.

Further information can be found in the updated policy guidance on Tier 1 (Investor) and Tier 1 (Entrepreneur) which have been published today by the UKVI.

For further information please contact us.

Non-EEA national posted workers in the UK

WORKING IN THE UK WITHOUT A WORK PERMIT

The Van der Elst case established that, as long as certain requirements were met, non-EEA nationals working for an EU employer in the EU should be allowed to provide services in another EU Member State without the need to obtain a work authorisation.  Accordingly an established non-EEA employee of an EU company in the EU can come to the UK to provide a service on behalf of the company without a UK work permit.

Entry clearance (i.e. a visa) is compulsory for both visa and non-visa nationals.

The requirements to be met by the non-EEA employee are that they:

• are lawfully resident in the EU Member State in which the employer is established;

• are lawfully and habitually employed by an employer who is temporarily providing a service in the UK;

• do not intend to take any other employment;

• intend to leave the UK at the end of the period during which his employer is providing the service. Successful UK Van der Elst visa applicants will be issued with a code 4 endorsement: D: FOR EMPLOYMENT WITH [add NAME OF COMPANY].

Visas should be issued for the length of the contract with their EU employer. Although applications from family members are treated in the same way as EEA family permit, family members are issued with code 1 dependant visas endorsed with D: TO JOIN/ACC [NAME OF VAN DER ELST EMPLOYEE].

For more information contact us.

Employment Permission Tier 1, 2 and 5

Tier 2 GENERAL

Tier 2 restricted certificates of sponsorship:

Skilled non-EEA worker numbers have been capped since the 6 April 2011.

The Annual Limit is currently 20,700.

The pool of available Certificates of Sponsorship (CoS) is divided into 12 monthly allocations 4,700 CoSs were made available for the first month and 1,500 have been available for each month thereafter.

The cap applies to most Tier 2 (General) migrants.

Those who are coming to the UK to undertake an occupation for which they will be paid £152 100 or more are not subject to the quota.

An employer wishing to recruit a non EEA skilled worker will need to undertake the following steps:
– register with the UKBA and obtain a sponsorship licence as an A-rated Tier 2 (General) sponsor;
– file a request for a restricted certificates of sponsorship (CoS);
– assuming that the request is granted, issue the restricted CoS and invite the foreign national to apply for entry clearance.

Restricted certificates are only granted for graduate-level jobs as per the codes of practice. When filing for a restricted certificate an employer must demonstrate that they have conducted a resident labour market test (in other words that they have advertised the role), or be able to confirm that the job is exempt from the resident labour market test. The annual salary offered must meet the minimum requirements set in the codes of practice (with a minimum of £20,300).

Requests for restricted certificates must be filed by the 5th of each month.

Although no supporting documents are required as part of the application process, the UKBA may request additional information. The Level 1 user is required to give full details of the job, including:

job title;
start date;
SOC code (from the relevant code of practice or shortage occupation list);
gross annual salary;
the organisation’s sponsor licence number and name; and
personal details – full name, contact phone number and email address.

Applications are assessed against ranking criteria. Where the monthly limit is oversubscribed, applicants with the highest number of points are issued a CoS. Priority is given to shortage occupations and to applicants with the highest prospective salaries.

Tier 2 unrestricted certificates of sponsorship

Unrestricted CoSs are not subject to the annual cap and can be issued for:

Tier 2 (Intra Company Transfers);
Tier 2 (Sportsperson) and Tier 2 (Minsters of Religion);
Any Tier 2 (General) CoS with a salary of £152,100 or more; and
Any in-country Tier 2 (General) application including extensions, changes of employment and those switching immigration category into Tier 2 (General) as well as for those covered by any transitional arrangements.

An employers wishing to recruit a non EEA skilled worker qualifying under any of the categories listed above will have to:
– be registered with the UKBA and hold a sponsorship licence;
– have been granted a number of unrestricted certificates of sponsorship (CoS) available for them to issue at all times.

Tier 2 INTRA COMPANY TRANSFEREES

Employers wishing to take advantage of the Tier 2 (ICT) route must be aware that although CoSs are not subject to a limit, it is subject to a number of restrictions in terms of minimum salary and length of stay in the UK.

Other routes: Tier 1

Tier 1 (General) is now closed and skilled non-EEA workers who do not fall within the remaining Tier 1 categories Investor, Entrepreneur, Prospective Entrepreneur, Exceptional Talent wishing to come to the UK to work  must apply through Tier 2.

Further changes to settlement criteria have been introduced. Applicants other than spouses, civil partners, unmarried or same sex partners of British citizens now need to be free from unspent convictions to be given indefinite leave to remain (ILR) in the United Kingdom. The Life in the UK test has been replaced by the English language requirement for some migrants. Some Tier 1 (Investor) and Tier 1 (Entrepreneur) migrants are now able to take advantage of an accelerated route to settlement.

 

Biometric Residence Permit

Biometric Residence Permits (BRPs) regulations

From 29 February 2012 more foreign nationals will be issued with biometric residence permits (BRPs).

From this date, all applications for leave of more than six months made in the UK by foreign nationals from outside the non-European Economic Area (EEA) will require the applicant to enroll their biometrics (fingerprints and digital facial image). If successful in their application, the UK Border Agency (UKBA) will issue a BRP as evidence of immigration status and entitlements in the UK. This includes refugees and those granted settlement.

BRPs are an important step in fighting immigration abuse and illegal working and make it easier for employers to verify a foreign national’s right to work in the UK.

Employers can download guidance on checking biometric residence permits and their security features from the UKBA’s website and call their helpline to check validity.

The phased rollout of BRPs means increasing numbers of people from outside the EEA will be required to enroll biometrics.

The UKBA has contracted with Post Office Ltd to provide customers with 100 locations around the UK.

From spring 2012 the UKBA plans to launch a new online checking service to provide quick and easy real time checks on the permit and the holder’s identity and right to work.

Settlement (SET O)

Once you have completed a continuous period of five years in the United Kingdom in an immigration category(ies) leading to settlement you may be eligible to apply for Indefinite Leave to Remain.

Only time actually spent in the UK will be counted towards the qualifying period. Time spent travelling to and from the UK will be regarded as time spent in the UK.

You are allowed a limited number of absences outside the UK. In general terms the rules provide that you should not have been absent from the UK for more 180 days in every 12 months of the 5 year qualifying period. Long, repeated and unjustified absences may seriously jeopardise the outcome of your application.

When assessing whether or not you have fulfilled the residence requirement the Immigration Officials will normally disregard short absences abroad, for example for holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the United Kingdom), as long as you can demonstrate that you are based in the UK.

To ensure the successful outcome of your application, you must meet all the requirements of the Immigration Rules that are in place at the time that you file for settlement.

For more information, please contact us.

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