Tag Archives: uk

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.

EEA Permanent Residence

Fast and reliable EEA Permanent Residence Service

EEA Blue Card UK Residence Documentation for a National of an EEA State

EEA PR applications from EEA nationals are currently taking between 4 to 6 weeks from the day of filing.

We offer an express and reliable service which includes:

– checking you qualify under the EEA rules;
– checking that you have completed the form correctly;
– checking you have included the necessary supporting documents;
– drafting your personal statement as well as a covering letter highlighting when you are deemed to have obtain permanent residence in the UK;  and
– ensuring your application is valid.

As part of our service, we will address issues such as criminal records, prolonged and / or unpaid absences, maintenance, self-employment, missing documents, any discrepancies, etc.

Our fees for this service varies between £550 and £750.

This service is available by formal instruction only.

For further information 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.

EEA PR: Nationality applications ‘rejected’ by the Nationality Checking Service

September 2016 – Naturalisation applications from EEA nationals ‘rejected’ by the Nationality Checking Service.

We have recently come across a large number of EEA applicants who have found their applications for nationality turned down by the NCS on the grounds that they have held their Permanent Residence card for less then 12 months.

This is usually the case even when the applicant is in a position to show that they were granted permanent residence by the operation of law more than 12 months from attempting to file for naturalisation.

Following one of our client’s recent experience at the NCS where they were told that ‘the records showed that permanent residence had been held for less than 12 months’, we decided to contact the UKVI to seek clarification as to whether the Local Authority NCS did indeed have access to applicants’ details.

Their response reads as follows: ‘The Local Authority Nationality Checking Service (NCS) are not allowed to give any unsolicited advice on nationality or immigration matters.  As it is an unwaivable requirement that applicants have settled status they are expected to demonstrate this at the appointment.  However, if an EEA national has only held their Permanent Residence card for less than 12 months, the LA (with the applicant’s permission) can call us to see how early they were considered to be settled to enable them to apply under section 6(1) of the British Nationality Act 1981.’

 To avoid delays and additional costs, applicants should make use of the Subject Access Request to confirm the date they are deemed to have gained permanent residence 12 months or more from filing for naturalisation.

When filing for permanent residence, it is highly advisable to enclose a letter highlighting the 5 years the UKVI should take into account when assessing the application. This especially when submitting supporting documentation that runs all the way to the date of submission of the permanent residence applications.

Should the UKVI have entered an incorrect date, applicants should seek to get the said date corrected before proceeding with their naturalisation application.

For further information, please contact us.

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.

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.

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.