Tag Archives: work

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.

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.

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.

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.

Employing a foreign migrant

SPONSORSHIP UNDER THE POINTS BASED SYSTEM

Applying for a license:
The application is made by completing a form on line. Employers are required to send the relevant supporting documentation to the BIA within 14 days of filing their application on line.

Validity of the license:
The license is valid for 4 years.

Type of license:
Employers will be rated A or B depending on how compliant they have been found over the years.

Filing the license application:

Step 1: if the company has several branches, it should be decided whether to register as a group or individually;

Step 2: choose the member of staff who will the company Authorising Officer (AO) and Key contact (KC) in line with the BIA requirements;

Step 3: collate the relevant supporting documentation – Limited companies will have to include at least 4 items to demonstrate their trading presence in the UK – Plc will need provide their London Stock Exchange number and evidence that they are present in the UK (i.e. have premises).

Step 4: decide on the number of certificates which are likely to be needed;

Step 5: choose the member of staff who will the company Authorising Officer (AO); Key contact (KC) and users;

Step 6: prepare for an eventual pre approval compliance visit from the BIA.
The AO will be responsible the sponsor licensing application and all the duties attached to the license. The AO will have the entire responsibility for all users of the sponsor management system (anyone entitled to issue certificates of sponsorship) and ensuring that record keeping and reporting duties are observed.

The sponsor (i.e. employer) will be responsible for all the actions of its AO.

The KC will be the point of contact between the BIA and the sponsor.

We would be delighted to assist you with the preparation and the filing of your application and the issuance of certificate of sponsorship.

Maintaining the license:
To maintain your license you will need to be compliant. This can be achieved by taking the following steps:

keep record of all sponsored employees as per the BIA’s requirements;
report specific information in line with the BIA’s requirements (i.e. an employee who does not turn up for work on their first day, termination of employment, changes of circumstances for the employer or / and the employee..etc.)
check the status of overseas nationals with limited leave to remain every 12 months;
co-operate with the BIA in allowing access to your premises whether the visit is prearranged or unannounced.

For further information please do not hesitate to 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.

 

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.

.