British passport renewals

UK immigration

British passport holders may renew their passport well before the end date of the passport. The time remaining on the existing passport, of up to 9 months, was merely added to the new passport.

Fair enough – the time left on the existing passport has been paid for after all.

But now, the Home Office and HM Passport Office has now admitted a  change to this policy, so that new passports will be issued without the remaining time being added. Thank you Callum Mason, reporter, and Martin Lewis, founder, of Moneysavingexpert.com for putting this before the mainstream media!

It is no coincidence that the announcement comes at a time of much Home Office Brexit contingency planning and Home Office announcements in the case of a ‘no deal’ departure from the European Union.

Here’s the concern – British passport holders may start holding onto their passports as close to the end date as possible, before submitting an application for a new passport.

Yet, for immigration purposes, many countries will not allow a person to enter or cross the border unless they have 6 months’ validity to run on their passport. Indeed, the United Kingdom, requires non-EEA visitors to present a passport with 6 months’ validity.

Alternatively, British passport holders may wait until the passport has 6 months to run and then submit new passport application, so that in effect, as Martin Lewis put it, ‘passports will now only last nine and a half years’.

Watch this space.

 

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families.

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Latest Position on Brexit

Latest position on Brexit

Here, is the latest position on Brexit, as it applies to EEA nationals and their family members, following the Home Office’s latest statement.

Settled Status
On 26 June 2017, Prime Minister Theresa May, announced plans to grant nationals from the European Economic Area (EEA), a new ‘settled status’ following the United Kingdom’s (UK) formal departure from the European Union in March 2019.

The new settled status will replace the current ‘permanent residence’ status and allow EEA nationals and their family members, the right to live, work and study in the UK.

On 22 June 2018, almost one year later, the new Secretary of State for the Home Department, Sajid Javid, has released the Home Office’s latest position on Brexit, as it relates to the rights of EEA nationals, as follows:

——————————————————————————————————————————————————————

As Home Secretary, I take immense pride that so many EU citizens like you have made your home here.

Safeguarding the rights of EU citizens in the UK has always been our first priority and the agreement we reached with the EU earlier this year did just that. The rights that you and your family currently have been protected which include access to healthcare, benefits and pensions.

Away from the negotiations, my team in the Home Office have been working hard to develop the service that you’ll use to get your settled status. This work will continue as we make sure that the system and processes are rigorously tested and meet every requirement ahead of the launch.

Today I am able to announce in more detail what this system will look like.

Most importantly, the application process is designed to be simple. Most people will only need to complete three sections to prove their identity, show that they live here and declare that they have no serious criminal convictions. We will also check employment and benefits records we already hold in government which for many people will mean that their proof of living here is automatic.  We hope therefore most people will not need to do anything beyond typing in personal details.

What’s more, settled status will cost less than the fee for a British passport – £65 and £32.50 for children under 16. For those who already have valid permanent residence or indefinite leave to remain documentation, they will be able to exchange it for free.

There will be support for the vulnerable and those without access to a computer, and we’re working with EU citizens’ representatives and embassies to ensure the system works for everyone.

I should stress that you do not need to do anything just yet. The scheme will open later this year and we are on track to open the scheme fully by 30 March 2019. The deadline for applications to the scheme will be 30 June 2021 so there will be plenty of time for you to apply and there are absolutely no quotas for applications.

I hope you will agree with me that this is an important step towards the commitment we made to you and your families so that you can continue your lives here.

Yours sincerely,

Sajid Javid
Home Secretary

——————————————————————————————————————————————————————

What next?

If you are an EEA national residing in the UK, it must be stressed again, that nothing has changed. The latest position on Brexit refers to the UK governments plans post-Brexit and in any case, the UK is still a Member State of the EU.

Thinking ahead, it may prove beneficial to wait until the introduction of the new settled status and submit, what promises to be, a streamlined application to register and recognise your UK status. EEA nationals will have the option of doing from March 2019 until 30 June 2021.

However, for many EEA nationals, and their family members, who have already resided in the UK for a significant amount of time, it may be advantageous to apply to certify your permanent residence, so as to facilitate an application for British citizenship. Of course, time will be a major factor as applications will need to be submitted before the end of March 2019.

The key is to plan ahead, and seek advice if you are unclear or wish to discuss your, and your family members’, immediate and longer term options.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families.

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You might also like:

https://www.thomaschaseimmigration.com/eea-pr-applications/

https://www.thomaschaseimmigration.com/brexit-update/

https://www.thomaschaseimmigration.com/eea-family-permit/

 

Refusal of British citizenship

Immigration

Tips to Avoid the 3 Main Reasons for a Refusal of British citizenship

When Jodi contacted us, the Home Office had refused her application to naturalise as a British citizen. She was understandably upset because she had indefinite leave to remain and, based on her understanding of the law, she appeared to be a good candidate for British citizenship. No criminal behaviour, no court action, continuous employment since her arrival to the United Kingdom (UK) as a Tier 2 (General) highly skilled worker, involvement in community activities and yet, three months later and at great financial cost, Jodi’s application was refused. We reviewed Jodi’s application and found that she had made one of 3 common errors. Below we set out our 3 tips to avoid a refusal of British citizenship applications.

 

The basics

A person may naturalise as a British citizen, under:

  • Section 6(1) of the British Nationality Act 1981 (BNA 1981), as a person applying in their own right who is not married to or in a civil partnership with a British citizen
  • Section 6(2) BNA 1981, as a person married to or in a civil partnership with a British citizen.

The requirements to be met depend on whether you are applying to naturalise under section 6(1) BNA 1981 or section 6(2).

The requirements

Section 6(1) BNA 1981

The key requirements to be met:

  • Be over 18 years of age
  • Meet the 5-year residence requirements
  • Have indefinite leave to remain (settlement) or permanent residence status for at least 12 months
  • Have passed the ‘Life in the UK’ test
  • Meet the English language requirements
  • Meet the ‘good character’ requirements
  • Intend to make the UK your home

 

Section 6(2) BNA 1981

The key requirements include:

  • Be over 18 years of age
  • Be married to or in a civil partnership with a British citizen
  • Meet the 3-year residence requirements
  • Have passed the ‘Life in the UK’ test
  • Meet the English language requirements
  • Meet the ‘good character’ requirements
  • Intend to make the UK your home

 

Children and those under the age of 18 years cannot apply to naturalise as British citizens. Instead, they may apply to register as British citizens.

 

When preparing applications to naturalise, some applicants often fail to submit documents to demonstrate how they meet the requirements, which can lead to a refusal of the applications.

In fact, from experience, regardless of whether the application falls under section 6(1) or section 6(2) BNA 1981, there are 3 common errors which stand out. They are:

  • Not meeting the residence requirements
  • Not meeting the ‘good character’ requirements
  • Not meeting the English Language requirements

 

Let’s look at each one in turn, so that you too, can avoid a refusal of a British citizenship application:

  1. Not meeting the residence requirements

As highlighted above, the residence requirements differ depending on whether you are applying to naturalise on the basis of a marriage or civil partnership with a British citizen or not.

If you are applying on the basis of your marriage or civil partnership, you must meet the 3-years residence requirement. Apply in your own right and you must instead meet the 5-years residence requirements.

 

How does this work in practice?

Under section 6(1) BNA 1981, you must show that you have been resident in the UK for 5 years preceding the date of the application. This is also known as the Qualifying Period.

During that time, you must not have been absent from the UK for:

  • 450 days in total: and
  • 90 days in the 12 months’ period immediately preceding the date of the application

 

Conversely, under section 6(2) BNA 1981, you must evidence that you have been resident in the UK for 3 years preceding the date of the application.

 

During that 3 year’ qualifying period, you must not have been absent from the UK for:

  • 270 days in total: and
  • 90 days in the 12 months’ period immediately preceding the date of the application

 

Not only that, but in both instances, you must have been physically present in the UK at the start of the qualifying period, whether it is 3 years or 5 years ago. There are exceptions for those who may have been in the armed forces at the start of the qualifying period.

 

Some applicants fall foul of the absence requirements. Yet, it is important to note that if all the other requirements are met, the Home Office can exercise its discretion in favour of the applicant.

 

Our client, Jodi, found herself in exactly that position. Even though Jodi’s total absences were recalculated when we prepared the application, she still had absences of 502 days during the 5 years qualifying period.

 

To overcome this, we made representations to the Home Office, to request that it exercises its discretion in Jodi’s favour. We also submitted documentary evidence to demonstrate that much of Jodi’s travel was due to her employment commitments because of the seniority and nature of her role.

 

In another past case, where the client had exceeded his permitted absences by 35 days, we submitted medical documentary evidence to illustrate that his travel was necessary. We also provided the Home Office with evidence of his strong ties to the UK by way of mortgage statements for his residential home and family ties.

 

It is of course up to the Home Office to exercise its discretion and each case will be assessed and decided on their individual merits.

 

Nonetheless, the above examples highlight that it is possible to avoid a refusal of British citizenship applications where the absences requirements are exceeded, provided strong evidence is submitted to persuade the Home Office to exercise its discretion favourably.

 

  1. Not meeting the ‘good character’ requirements

The Home Office will assess if you are of sufficient ‘good character’ to be granted British citizenship or whether your previous conduct should adversely affect your application.

 

To be considered as having good character you must have “shown respect for the rights and freedoms of the United Kingdom, observed its laws and fulfilled your duties and obligations as a resident of the UK.”

 

This is quite a broad test, but essentially the Home Office will carry out criminal and civil record checks in every application. As the Home Office is not bound to the Rehabilitation of Offenders Act 1974, this means that every criminal offence will be considered as part of your application to naturalise, no matter how minor or when the act was committed.

 

Any criminal offence committed, both in the UK and abroad, such as theft, drink driving, use of a mobile phone while driving and driving while disqualified may prevent you from naturalising until a certain period of time has lapsed from the date of conviction.

You may also be prevented from applying successfully if you have any financial issues such as bankruptcy or not having failed to pay your council tax.

It should also be noted that failure to declare any of the above, could also be viewed negatively.

 

Examples

A previous client, who successfully applied to naturalise as a British citizen, had 5 fixed penalty notices for speeding and 2 others for parking related offences. In light of the number of penalty notices, we were wary that such behaviour could show a pattern of non-compliance with UK laws.

 

We therefore took the precaution of highlighting broader aspects of that client’s good character. We also submitted information from DVLA to prove that the client’s overall driving record was positive and that all penalty notices had been resolved.

 

In another instance, Jimmy had recently been declared bankrupt and sought a telephone consultation to discuss his chances of securing British citizenship.

 

Jimmy was advised against making an application to naturalise, at this time, as it was highly likely, in our opinion, and based on his wider financial dealings and lack of strong UK ties, that the application would fail.

 

Jimmy appeared to have sought assistance elsewhere and submitted an application to the Home Office. He contacted us by email to say that he had been invited by the Home Office to provide his biometric data. We informed Jimmy that the receipt of a biometric letter did not equate to approval of his application. Hopefully a decision will go in his favour!

 

Not meeting the good character requirements could lead to a refusal of British citizenship applications and it may be sensible to allow time to lapse before making an application. Nevertheless, there are times when a refusal can be avoided, provided strong evidence is submitted to persuade the Home Office of your good character.

 

  1. Not meeting the English Language requirements

Nationals of majority English speaking countries are not required to demonstrate English language proficiency. Majority English speaking nationals are those from:

  • Antigua and Barbuda
  • Australia
  • The Bahamas
  • Barbados
  • Belize
  • Canada
  • Dominica
  • Grenada
  • Guyana
  • Jamaica
  • New Zealand
  • St Kitts and Nevis
  • St Lucia
  • St Vincent and the Grenadines
  • Trinidad and Tobago
  • United States of America

If you are from a country not listed above, you must pass an English language test (SELT), at B1 CEFR or higher.

 

It is not uncommon for applicants to provide an English language test certificate below the required level, leading to a possible refusal of the application.

 

Alternatively, if you hold an equivalent level qualification, such as a degree taught in English, such evidence may be submitted with the application instead.

 

The issue often occurs where the applicant received a degree qualification taught to them in English, from an approved university or educational establishment from outside of the UK.

 

Where this occurs, extra steps are required to illustrate how the applicant meets the requirements. For instance, Jodi, had previously submitted evidence of meeting the English language requirements, during her initial application for a Tier 2 (General) visa application and again in her application for indefinite leave to remain. At that time, Jodi had submitted a print out of the  Points Based Calculator detailing how her degree certificate met the requirements.

 

To Jodi’s surprise, the fact that she had met the requirements previously, did not preclude her providing such evidence again. And unfortunately, since 6 April 2016, the Home Office no longer accepts the Points Based Calculator as evidence of meeting the English language requirements.

 

Therefore, we approached UK NARIC for an Academic Qualification Level Statement from UK NARIC confirming that Jodi’s degree qualification was comparable to a UK degree. We submitted this statement, together with on official letter from Jodi’s overseas university stating that the degree was taught in English and also submitted her original degree certificate as part of the application.

 

As a result, we were clearly able to verify that Jodi met the English language requirements.

 

Conclusion

We hope that the 3 tips to avoid a refusal of a British citizenship application have been helpful.

 

As for Jodi, her application for British citizenship was approved and she had since attended the Citizenship Ceremony. As for Jimmy, if you are reading this, not your real name but you know who you are, please feel free to update us on your application and share your experience.

 

Over to you. Have you been refused an application to naturalise as a British citizen? Was it for any of the reasons outlined above or for another reason? And what did you do next?

 

Would you like help you with your application to become a British citizen?

 

Contact us at [email protected] for a quick reply.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families secure visas to travel to and remain in the UK.

 

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Right to Rent Checks

Right to rent

Landlords form part of the Government’s plans for maintaining effective immigration controls.  As a result, landlords, or their agents, must carry out immigration checks to ensure that a tenant or lodger can legally rent the residential property in England. Here, we provide guidance to landlords on the right to rent checks to be carried out, and the follow-up checks required, in order to stay compliant with immigration laws.

Background

You’re a landlord in England with residential property for rent.  You find a suitable tenant, you meet them, verify their references, perform a background check, and once assured take a deposit. With move-in dates sorted and direct debits in place, you can sit back and relax.

Well not quite!

Now you have to meet the immigration obligations by carrying out right to rent checks.

Why? The Government is keen to frustrate individuals, who may not be entitled to reside in the United Kingdom (UK) from accessing services and rental property.

Of course, this all places a large onus on you, the landlord. If you are found renting your residential property to a tenant, who does not or no longer has a right to be in the UK, you could be issued with a civil penalty of up to £3,000 per tenant.

So how do you ensure that you stay on the right side of immigration laws?

Here’s how…

Tenants to be checked

The right to rent requirement, under section 32(6)(a) of the Immigration Act 2014, only apply to residential tenancies that started on or after 1st February 2016 in England. There is an earlier date of 1st December 2014 and after, for residential properties in Birmingham, Dudley, Sandwell, Walsall or Wolverhampton.

As a landlord of a residential property, you must ensure that the tenant, or a lodger, can legally rent the property.

To do so, you must carry out checks on the tenant, or if there is more than one person occupying the property, checks must be made on each tenant aged 18 years of age and over.

For the purposes of the Home Office, tenants can include individuals who are not named on the tenancy agreement

In fact, as long as there are tenants at the residential property, right to rent checks need to be carried out regardless of whether:

  • There is no tenancy agreement in place; or
  • The tenancy agreement is no in writing.

How to carry out right to work checks

There are 3 key steps to conducting right to rent checks. They are:

Obtain

After you have confirmed how many adults intend to use your property, you must request their original documents to prove their right to reside in the UK

The Home Office accepts it can be difficult for non-immigration specialists to know which documents to collect and once, collected, what they mean. So the Home Office has split the documents into List A, Group 1 and Group 2, and List B.

List A, Group 1

Documents in List A, Group 1 documents clearly evidence that the individual has a permanent right to rent in England and the UK.

List A, Group 1, documents include:

  • A passport (current or expired) showing that the holder is a British citizen, or a citizen of the UK and Colonies having the ‘right of abode’ in the UK

 

  • A passport or national identity card (current or expired) showing that the holder is a national of the European Economic Area (EEA) or Switzerland. A registration certificate or document (current or expired) certifying or indicating permanent residence issued by the Home Office, to a national of the European Economic Area country or Switzerland

 

  • A ‘permanent’ residence, ‘indefinite leave to remain’, ‘indefinite leave to enter’ or ‘no time limit’ card issued by the Home Office (current or expired), to a non-EEA national who is a family member of an EEA or Swiss national

 

  • A biometric ‘residence permit’ card (current or expired) issued by the Home Office to the holder indicating that the person named has ‘indefinite’ leave in the UK, or has ‘no time limit’ on their stay in the UK

 

  • A passport or other ‘travel document’ (current or expired) endorsed to show that the holder is either ‘exempt from immigration control’, has ‘indefinite’ leave in the UK, has the ‘right of abode’ in the UK, or has ‘no time limit’ on their stay in the UK

 

  • A current immigration status document issued by the Home Office to the holder with a valid endorsement indicating that the holder is either ‘exempt from immigration control’, has ‘indefinite’ leave in the UK, has the ‘right of abode’ in the UK, or has ‘no time limit’ on their stay in the UK

 

  • A certificate of registration or naturalisation as a British citizen

 

Group 2, List A

Where a tenant presents a document from Group 2, List A, you must ensure that you request another document from this list also.

Documents in Group 2, List A include:

 

  • A full birth or adoption certificate issued in the UK, Channel Islands, the Isle of Man or Ireland, which includes the name(s) of at least one of the holder’s parents or adoptive parents

 

  • A current full or provisional photo card UK driving licence

 

  • A letter from HM Prison Service, the Scottish Prison Service or the Northern Ireland Prison Service confirming the holder’s name, date of birth and that they have been released from custody of that service in the 6 months prior to the check

 

  • A letter issued within the 3 months prior to the check by a UK government department or Local Authority and signed by a named official (giving their name and professional address), confirming the holder’s name and that they have previously been known to the department or local authority

 

  • A letter issued within the 3 months prior to the check from an officer of the National Offender Management Service in England and Wales confirming that the holder is the subject of an order requiring supervision by that officer; from an officer of a local authority in Scotland confirming that the holder is the subject of a probation order requiring supervision by that officer; or, from an officer of the Probation Board for Northern Ireland confirming that the holder is the subject of an order requiring supervision by that officer

 

  • Evidence (identity card, document of confirmation issued by one of HM forces, confirmation letter issued by the Secretary of State) of the holder’s previous or current service in any of HM’s UK armed forces

 

  • A letter from a UK police force confirming that the holder is a victim of crime and has reported a passport or Home Office biometric immigration document stolen, stating the crime reference number, issued within the 3 months prior to the check

 

  • A letter issued within the 3 months prior to the check signed by a representative of a public authority, voluntary organisation or charity which operates a scheme to assist individuals to secure accommodation in the private rented sector in order to prevent or resolve homelessness

 

  • A letter issued within the 3 months prior to the check confirming the holder’s name signed by the person who employs the holder (giving their name and business address) confirming the holder’s status as employee and employee reference number or their National Insurance number

 

  • A letter issued within the 3 months prior to the check from a UK further or higher education institution confirming the holder’s acceptance on a current course of studies. This letter should include the name of the educational establishment, as well as the name and duration of the course

 

  • A letter issued within the 3 months prior to the check from a British passport holder who works in (or is retired from) an acceptable profession as specified in the list of acceptable professional persons. The letter should confirm the holder’s name, and confirm that the acceptable professional person has known the holder for longer than three months

 

  • Benefits paperwork issued by HMRC, a UK Local Authority or Job Centre Plus, on behalf of the Department for Work and Pensions or the Northern Ireland Department for Social Development, issued within the 3 months prior to the check

 

  • Disclosure and Barring Service Certificate (criminal record check) issued within the 3 months prior to the check

 

List B

If a tenant presents a documents from List B, the document permits the individual a time-limited right to rent the residential property.

Such documents include:

  • A current passport or other ‘travel document’ endorsed to show that the holder is allowed to stay in the UK for a time-limited period

 

  • A current biometric ‘residence permit’ card issued by the Home Office to the holder, which indicates that the named person is permitted to stay in the UK for a time-limited period

 

  • A current ‘residence card’ (including an accession residence card or a derivative residence card) issued by the Home Office to a non-EEA national who is either a ‘family member’ of an EEA or Swiss national or has a ‘derivative’ right of residence

 

  • A current immigration status document issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK for a time-limited period.

You can also use the Home Office online service Home Office online service to check whether a person is entitled to rent your property.

Check

Once you have obtained the document from the relevant list, you must check the tenant’s document in their presence.

Again, the Home Office is not expecting you to be an expert in immigration documents or inappropriately issued documents. Landlords are merely expected to make reasonable checks to see if the document is genuine and relates to the person in front of you.

So for instance, ask yourself:

  • Does the document look as if it has been obviously tampered with?
  • Does it contain spelling mistakes?
  • It the photograph, on the document, a true likeness of the tenant?

Copy

Copies of the tenant’s List A Group 1 document or List A Group 2 documents or List B document must be kept on file, with a brief record of the date that you checked the originals.

It is crucial to follow the above steps so as to ensure compliance with UK immigration laws. If the tenant is found to have no legal right to reside in the UK, you will have a statutory excuse against a civil penalty if you can evidence that you have obtained, checked and copied the appropriate documents.

Further information can found on the Home Office website.

Timing of checks

It is possible to obtain copies of the identity documents in advance. However, the right to rent checks must be carried out at the start of the tenancy.

There are instances where the right to rent checks must be made well in advance of the start of the tenancy. For instance, if the tenant has limited leave to stay in the UK, or their visa contains an expiry date, you will need to carry out checks 28 days prior to the start of the tenancy.

Follow-up checks

A landlord’s immigration obligation is a continuing one. For that reason, as a landlord, you must ask the adult tenants for proof of their continued right to rent the property.

Where the tenant provides a document from List B, you must obtain and make a copy of the document and follow the same steps again in 12 months’ time, or when the tenant’s leave is due to expire, or when the document evidencing the tenant’s limited leave is due to expire. Doing so, will provide you with a statutory excuse against a civil penalty, should the tenant be found to no longer have a right to reside in the UK.

However, if the tenant provides a document from List A and you have obtained and kept a copy of the document on file, no further checks will be necessary and you are deemed to have a continuing statutory excuse.

When are right to rent checks not required

As the landlord, you are not required to conduct right to rent checks for certain types of accommodation. They include:

  • Social housing;
  • Care homes, hospices or hospitals;
  • Hostels or refuges;
  • Mobile homes; and
  • Student accommodation.

Checks are also not needed if the tenants in accommodation is:

  • Provided by the local authority or Council
  • ‘Tied accommodation’, provided as part of their job
  • Leased to the tenant for a period of 7 years or longer

You will however, require evidence of the above.

The tenant has limited leave but no documents

It is not unusual for a tenant with limited leave to lack documents because they submitted to the Home Office as part of an application to extend their stay in the UK.

This does not mean that the individual is not entitled to rent the property. Instead, you should check their immigration status by completing a short Home Office online form.

Results are normally relayed within 48 hours.

Important

It cannot be stressed enough, that a, you are required to conduct right to rent checks on all new tenants. This is regardless of whether you believe the tenant to be a British citizen. You still need to gather documentary evidence for all tenants and cannot discriminate.

And another thing…

It was somewhat disconcerting to read according to a Residential Landlords Association (RLA) survey, as many as 20% of landlords admitted they were less likely to rent their residential properties to EU nationals.

Apparently, some landlords felt that the right to rent checks for EU nationals were too onerous. For many, renting their properties to British citizens was much easier.

It must be stressed that following, Brexit, the rights of EU nationals remain the same, at least for the time being. But more importantly, and as highlighted above, right to rent checks must be carried out on all adult tenants. Failure to do so could lead to allegations of discrimination and a breach of immigration laws.

The Home Office Code provides more information for landlords.

Conclusion

Right to rent checks are now part of a landlords continuing immigration obligations. To avoid a civil penalty, landlords must carry obtain documents, as appropriate, depending on the status of the tenant. By following the detailed steps above, landlords can protect themselves against a civil penalty and avoid falling foul of anti-discrimination laws.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families.

Call to action

Need straightforward immigration advice or guidance on the right to rent checks? Contact us at [email protected] to arrange a consultation. Or learn more about from our blogs

Liked this blog? You might like to read:

https://www.thomaschaseimmigration.com/brexit-latest-settled-status-eu-nationals/

 

Minimum Income Requirement

Minimum Income Requirement

The Home Office has updated the minimum income requirement, within the Immigration Rules, following the recent findings of the Supreme Court. We highlight the key takeaways from the Court’s findings and updated Immigration Rules.

Background

British citizens and settled nationals in the United Kingdom (UK) who wish to sponsor their non-European Economic Area (EEA) spouse must meet strict minimum income requirements (MIR), as set out in Appendix FM Family Members Section E-ECP Eligibility. Under the MIR, a sponsor must evidence a minimum annual income of £18,600 from employment, or hold the equivalent in cash savings. That is, savings of £62,500 in total.

The MIR also applies to those wishing to sponsor a non-EEA unmarried partner or fiancé/ fiancée. And the amount of income required increases depending on the number of overseas children to be included in the application. For instance, the sponsor must earn an additional £3,800 for the first child and an additional £2,400 for each subsequent child added to the application.

The Supreme Court, the final court of appeal for civil cases in the United Kingdom (UK), recently considered the scope of the MIR in the case MM (Lebanon) and others v the Secretary of State for the Home Department [2017] UKSC 10 (MM (Lebanon)).

The Supreme Court’s findings

In MM (Lebanon), the Supreme Court unanimously (and unfortunately) supported the minimum income requirement in principle, agreeing with the Home Office, that it was not only necessary for the UK’s aim of maintaining an effective immigration control, but that the requirement was compatible with the right to family life enshrined under Article 8 of the European Convention on Human Rights (ECHR), much to the disappointment of many families and campaigners.

However, the Supreme Court acknowledged that the minimum income requirement was ‘particularly harsh’. In paragraph 80 of the judgement, the Justices stated:

There can be no doubt that the MIR has caused, and will continue to cause, significant hardship to many thousands of couples who have good reasons for wanting to make their lives together in this country, and to their children.

They ruled that the Immigration Rules, and the Immigration Directorate Instruction issued to caseworkers were defective and unlawful due to their narrow application and little weight given to the interests of children.

The Home Office has since incorporated the findings of the Supreme Court in the Statement of Changes in Immigration Rules HC290, which came into effect on 10 August 2017 and Appendix FM to HC 395.

Key Takeaways

The key takeaways from the judgement of MM (Lebanon) and the Home Office Statement of Changes are as follows:

  1. Children’s rights must be safeguarded

Under section 55 of the Borders, Citizenship and Immigration Act 2009, the Secretary of State has a duty to safeguard and promote the welfare of children when making decisions which affect them. The Justices felt that the Immigration Rules and the guidance issued to caseworkers and entry clearance officers failed to do so, making them unlawful.

The Home Office has since revised the Immigration Rules and guidance to ensure that decision makers treat the best interests of the child as a primary consideration.

  1. Alternative funding

The Supreme Court assessed whether the overseas partner’s prospective income should be taken into account when determining whether the MIR had been met. They ruled in favour of the Secretary of State on this point, stating that to do so would prove cumbersome to verify for decision makers.

Nevertheless, the Court expressed concern that the sources of funding, taken into account by decision makers when assessing whether the MIR had been met, were so restrictive as to be harmful. This was particularly significant where the refusal of the application could breach Article 8 ECHR.

The Home Office has now amended the Immigration Rules and guidance so as to place a less restrictive approach to alternative funding.

Conclusion

The Supreme Court, in their judgement of MM (Lebanon) recognised that the minimum income requirement (MIR) was harsh and somewhat unfair to a number of individuals, couples and families. They stopped short of ruling that the MIR was unlawful overall but found that elements of the Immigration Rules and guidance were.

The Supreme Court ruled that the Home Office must give more consideration to the interests of the child in such cases and gave findings on the alternative sources of funding.

The Home Office has duly complied. However, time will tell whether the Home Office has truly heeded the concerns expressed, and findings of, the Supreme Court.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families.

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Brexit, Settled Status & EU Nationals

Thomas Chase Immigration - Brexit, Settled Status

The UK government has set out its negotiation position with the European Union (EU), on the future status of approximately 3 million EU nationals currently exercising Treaty rights in the UK. The published information provides an outline of the government’s position on a ‘new settled status’, but is very short on detail. Here, we review the latest government proposals and their possible impact for EU nationals and their families.

Settled Status
A new ‘special settled status’ was announced by Prime Minister, Theresa May on 26 June 2017, aimed at granting EU nationals “the right to live in Britain, to undertake any lawful activity, to access public funds and to apply for British citizenship.”

The proposals will allow EU nationals to acquire or transfer their permanent status into a special settled status, thereby bringing them within the restrictive UK immigration laws that currently apply to nationals outside of the European Economic Area (EEA).

Let’s look at the proposals in more detail. As part of the UK government’s wish to ‘safeguard’ the rights of EU nationals in the UK, the government said it will:

  • Comply in full with its legal obligations, including in respect of administrative procedures for providing documentation for those exercising Treaty rights until such time as the UK leaves the UK;

 

  • Create new rights in UK law for qualifying EU citizens, resident here before the UK’s exit from the EU. Those rights will be enforceable in the UK legal system and will provide legal guarantees for those EU. In addition, the Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK;

 

  • These rights will apply to all EU citizens equally and the UK government will not treat citizens of one member state differently to those of another qualifying EU citizens will have to apply for their residence status. The administrative procedures which they will need to comply with in order to obtain these new rights will be modernised and kept as smooth and simple as possible;

 

  • Bring the application process under a separate legal scheme, in UK law, rather than the current one for certifying the exercise of rights under EU. The UK government intends to tailor the eligibility criteria so that, for example, it will no longer require evidence that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ in order to be considered continuously resident;

 

  • Provide all qualifying EU citizens adequate time to apply for their new residence status after the UK leaves the UK. There will be no ‘cliff-edge’ at the point of the UK’s withdrawal from the EU;

 

  • Guarantee that qualifying individuals will be granted settled status in UK law (indefinite leave to remain pursuant to the Immigration Act 1971). This means they will be free to reside in any capacity and undertake any lawful activity, to access public funds and services and to apply for British citizenship;

 

  • Allow EU nationals to qualify for the new settled status as long as they were resident in the UK before a specified date and must have completed a period of 5 years’ continuous residence in the UK before they apply for settled status. They must also still be resident in the UK at that point to qualify;

 

  • Allow EU citizens who arrived and became resident before the specified date, but who have not accrued five years’ continuous residence at the time of the UK’s exit from the EU, to apply for temporary status in order to remain resident in the UK. Once those EU nationals have resided in the UK for 5 years, they will be eligible to apply for settled status;

 

  • Allow EU citizens who arrived after the specified date, to remain in the UK for at least a temporary period. They may become eligible to settle permanently, depending on their circumstances. However, this group should ‘have no expectation of guaranteed settled status’;

 

  • Allow family dependants, who join a qualifying EU citizen in the UK before the UK’s exit from the EU, to apply for settled status after 5 years. The 5 years’ period includes time accrued after Brexit. Those joining after the UK’s exit will be subject to the same rules as those joining British citizens or alternatively to the post-exit immigration arrangements for EU citizens who arrive after the specified date;

 

  • Define the ‘specified date’ as no earlier than the 29 March 2017, the date the formal Article 50 process for exiting the EU was triggered, and no later than the date of the UK’s withdrawal from the EU. The specified date will be agreed with the EU as part of delivering a reciprocal deal; and

 

  • Apply rules to exclude those who are serious or persistent criminals and those whom we consider a threat to the UK.

It cannot be stressed enough that the above proposals are just that, proposals. The proposals will form part of the UK’s negotiations with the EU and is likely to change or bend as time progresses. Regardless, as they stand, they will have a huge impact on EU nationals’ ability to work, study and unite with family members in the UK.

Summary

The new settled status will apply to EU nationals and their family members who are currently exercising Treaty rights in the UK, but have not yet acquired 5 years’ continuous residence, and will also be applicable to EU nationals that have already applied to the Home Office to certify their permanent residence status.

Applying for the new settled status will be done under a ‘fast- track process’.

Great. Some information has been provided. And yet, so much has been left unsaid.

  • What will the fast track process look like?
  • How does the government intend to fast-track the applications for the large number of EU nationals in the UK?
  • It is not clear if the application process for the new settled status will differ for EU nationals that have already gone through the onerous process of applying to certify their permanent residence status and supplied a great deal of documents, as compared to those that had not certified their permanent residence status at all.
  • How will settled status for EU nationals already in the UK, differ from the settled status for EU nationals arriving after the ‘specified date’?
  • Will EU nationals arriving after the cut-off date see a restricted definition of ‘family members’ as seen under the current UK immigration rules?
  • Will EU nationals that had certified their permanent residence status be expected to complete another form and submit masses of documents again?
  • What is the specified cut-off date?

Another key omission? Fees. How much will EU nationals be expected to pay to apply for the new settled status? For instance, national from outside of the European Economic Area (EEA) can expect to pay £2,297 (fees as applied from 6 April 2017 and current as of today’s date). Compare that to an application to certify permanent residence, currently £65.

Will EU nationals be expected to pay hundreds or even thousands of pounds for settled status? We don’t yet know although the UK government proposes that fees will be reasonable.

And will the fast-track system be offered as standard or will a premium fee be attached? We also do not know.

What is clear is that some EU nationals are holding off making an application to certify permanent residence status and instead waiting for details of the new settled status. The merits of doing so will of course depend on each individual and their circumstances.

Settled status, students and the self-sufficient

At present, EU nationals in the UK as students or who are self-sufficient, are required to hold comprehensive sickness insurance (CSI). Without CSI, such EU nationals are deemed not to have exercised their Treaty rights in the UK.

The government has proposed that CSI will not be a requirement for EU nationals seeking the new settled status.

Permanent residence and British citizenship

What factors should EU nationals factor into their decision making?

Well, not all EU nationals are eager to apply for British citizenship or meet the requirements for British citizenship. In fact, some nationals are precluded from holding dual nationality by their home country.

For those keen to secure British citizenship, applying to certify permanent residence status, especially for those already exercising their Treaty rights in the UK for 5 years and over, can be beneficial. Why? Because it may be a ‘quicker’ route to naturalising as a British citizen.

When applying for British citizenship, EU nationals have been exercising Treaty rights for 5 years, at which point they will acquire permanent residence. Thereafter, they must apply to the Home Office to certify their permanent residence and hold such recognised status for a further 12 months.

Examples

For example, one of our client’s Eliana, owned and ran her own business in the UK for the past 8 years and successfully applied for British nationality. Eliana first applied to certify her permanent residence status on the basis that she could evidence exercising her Treaty rights as a self-employed person for the past 7 years. Not the easiest of exercises but Eliana only managed to obtain 7 years of the recommended documentary evidence.

We prepared the application and asked the Home Office to not only certify Eliana’s permanent residence status for the past 5 years, but for the past 7 years. This was duly done and allowed Eliana to immediately apply for British citizenship without waiting for a further 12 months.

Equally, another client had her permanent residence status recognised based on her UK activities over the past 5 years. After 12 months’ she may apply for British citizenship, well before the UK formally leaves the EU, assuming the cut-off date is when the UK officially leaves the EU.

This option may be far ‘quicker’ route to British citizenship as compared to applying for settled status, once it is rolled out, and holding that status for an additional 12 months. At the moment, there is nothing to say that the new settled status will be retrospective in law.

Family members

There are good reasons to wait and delay making an application British citizenship. One of which is related to family members. Under EU regulations, EU national exercising Treaty rights in the UK, are entitled to have their direct and indirect family members join them in the UK.  This includes non-EEA family members.

Once the EU national becomes a British citizen, family reunion becomes restricted, onerous and expensive.

An EU national sponsoring a non-EEA spouse to join the in the UK can be as (relatively) straightforward as submitting a EEA family permit application at zero cost.

Doing so as a British citizen means meeting the financial requirements and earning a salary of at least £18,600 per annum, and Home Office fees in the region of £1400 plus an Immigration Health Surcharge of approximately £600.

And applying for an elderly parent to a British citizen in the UK is extremely difficult, with extended family members such as cousins and uncles being almost impossible.

Conclusion

The government has laid out its proposals, for a new settled status, for EU nationals exercising Treaty rights in the UK and for those arriving after the UK formally leaves the EU. Nevertheless, the proposals are extremely light on details, making it difficult for EU nationals to assess the best way forward. That is, whether to apply to certify their permanent residence status, thereafter apply for British citizenship, or simply wait and see how the plans for new settled status materialise.

Much will depend on the circumstances of the individual EU national, and we have listed some of those considerations above. And of course, we must remember that the proposals, at least for now, are just that…published plans to be negotiated with the EU. As such, they are subject to change. So we will watch this space and keep you updated.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration solutions to businesses, individuals and families looking for friendly, straightforward advice.

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Overseas Visitors and UK Healthcare

We look at overseas visitors to the UK from the EEA and non EEA countries and and access to healthcare

It is holiday season and millions of travellers from all over the world are expected the visit the UK. Most visitors will have adequate medical insurance. Yet what happens if your travel insurance doesn’t go far enough or you don’t have travel insurance at all, but require healthcare. And what impact will rule changes have from October 2017. We answer those questions, and more, in this post on overseas visitors and healthcare.

In 2015, there were 36.1 million visitors to the UK from overseas visitors, 5.1% higher than in 2014. In 2016, the number of overseas visits to the UK reached record levels of 37.6 million. 

Access to healthcare treatment during a person’s travels depends on whether the visitor is travelling from within or outside of Europe.

EEA NATIONALS

For those visitors to the UK, from within the Economic European Area (EEA), it is recommended to apply for the European Health Insurance Card (EHIC). The EHIC entitles EEA nationals to access necessary treatment at a reduced cost, or sometimes at no cost, in certain European countries with state provided healthcare, and is free.

Treatment for pre-existing medical conditions are covered. Yet, the EHIC has its limitations. For instance, it will not cover private medical healthcare costs such as the cost of being flown back to the European country of residence. And while routine maternity care is covered, it will not cover the cost of specifically travelling to the UK to give birth within the UK’s National Health Service (NHS)

For this reason, it is highly recommended that EEA nationals travelling to the UK on holiday hold both an EHIC card and valid and adequate travel insurance.

Only EEA nationals from the following countries are required to hold adequate medical and travel insurance and need not possess a EHIC:

  • The Channel Islands, including Guernsey, Alderney and Sark
  • The Isle of Man
  • Monaco
  • San Marino
  • The Vatican

If an EEA national visiting the UK finds themselves in need of medical treatment, they may dial 112, the free European emergency number, for immediate assistance.

The EU Directive route

The European Union (EU) Directive route entitles EEA visitors to purchase NHS or private healthcare in England and seek reimbursement for medically necessary treatment from their country of residence. The reimbursements are limited to the amount the treatment would normally cost in their home country. It does not cover emergency treatment and prior authorisation may be required

NON-EEA VISITORS

Visitors to England, more specifically, from outside of the EEA must have personal medical provisions or travel insurance to cover for the length of their visit.

If a visitor requires certain emergency treatment, the NHS will not turn the person away and some NHS services and treatments are free, making them exempt from charges.

These include:

  •  Accident and emergency services
  • Family planning services though it does not include infertility treatment
  • Treatment for most infectious diseases, including sexually transmitted infections (STIs)
  • Treatment required for a physical or mental condition caused by torture, female genital mutilation (FGM), domestic violence or sexual violence and yet charges will apply if the visitor enters England for the purpose of seeking that treatment

What happens if they then seek unplanned medical treatment from the NHS? Unfortunately, it’s not uncommon visitors to book their travel and omit or forget to purchase travel insurance or even seek the minimum travel insurance cover available. In such cases, overseas visitors receive a medical bill for fees chargeable at 150% of the NHS standard rate. Ouch!

Different rules apply for overseas visitors requiring medical assistance in Scotland, Wales and Northern Ireland.

It is also worth pointing out that some non-EEA visitors may be exempt from NHS charges. They include those traveling for longer than 6 months to work, to study or join family members, as they will have paid a separate Immigration Health Surcharge.

Changes to Healthcare rules from October 2017

As of 23 October 2017, non-EEA nationals must pay for non-urgent treatment and services, in advance. Visitors will be given an estimate of the treatment costs and will be expected to pay for this upfront, or treatment will not be provided.

From October 2017, failure to pay such charges will adversely impact upon any future immigration applications.

Reciprocal Agreements

Exemptions also apply to visitors from countries that have reciprocal healthcare agreements with the UK.

The reciprocal agreements entitle visitors, from specified countries, to access immediate emergency medical treatment free of charge. They are:

  • Anguilla
  • Australia
  • Bosnia and Herzegovina
  • British Virgin Islands
  • Falkland Islands
  • Gibraltar
  • Isle of Man
  • Jersey
  • Kosovo
  • Macedonia
  • Montenegro
  • Montserrat
  • New Zealand
  • Serbia
  • St Helena
  • Turks and Caicos Islands

The nature and access to free treatment will differ for each country under their respective reciprocal agreements. http://www.nhs.uk/NHSEngland/Healthcareabroad/countryguide/NonEEAcountries/Pages/Non-EEAcountries.aspx

The agreements do not normally apply when the person has travelled to the UK for the purpose of obtaining healthcare.

There are non-EEA countries which previously held reciprocal healthcare agreements with the UK. Those agreements came to an end on 2016. As a result, visitors from the following countries must ensure they have adequate travel and health insurance, as they will be charged for accessing healthcare and treatment on the NHS.

  • Armenia
  • Azerbaijan
  • Barbados
  • Belarus
  • Georgia
  • Kazakhstan
  • Kyrgyzstan
  • Moldova
  • Russia
  • Tajikistan
  • Turkmenistan
  • Ukraine
  • Uzbekistan

On another note, from 21 August 2017, employers of overseas visitors working on UK-registered ships will be charged for NHS fees incurred.

Conclusion

With travel season well underway, it is important, whether you are from within the EEA or a non-EEA national, to know what emergency and non-urgent treatment and services you can access in the UK. Having adequate travel and medical insurance can provide a great deal of comfort, but if that, for whatever, reason is not the case, there may be other measures in place to help you get the treatment you need at reduced costs. By being informed, you can ensure you have a safe and enjoyable holiday, avoid a huge bill and at worse, for non-EEA nationals in particular, prevent adverse consequences in any future immigration applications.

Happy travels!

 

Key information

Call 999 if someone is seriously ill or injured and their life is at risk

Call NHS 111 if you urgently need medical help or advice but it’s not a life-threatening situation. You can also call NHS 111 if you’re not sure which NHS service you need.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration provide an end-to-end immigration service to individuals and families to help make the process as smooth as possible

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If you would like further guidance or assistance with an immigration matter, contact us at Thomas Chase Immigration to arrange a consultation. Or learn more about immigration from our blogs.

UK Residence Card Applications and Processing Times

UK Residence Card processing times

With UK Visas and Immigration (UKVI) finding themselves inundated with applications for a UK residence card and certificate from EEA nationals and EEA family permit holders, it could be easy to assume that the application has fallen into a bottomless pit, only to be seen at some point in the distant future.

After all, we have all heard of the ongoing immigration cases sitting with UKVI for years and years.

However, UK residence card applications, and applications to certify permanent residence status,  are different. This is because UKVI’s service standards, as governed by EU regulations, dictate that UKVI must issue the actual UK residence card within 6 months.

The 6 months’ time frame begins from the date that UKVI receives the application, and the required supporting documents that prove that a right of residence exists.

This means that it is crucial for the applicant to submit the correct information and documentation to UKVI as part of the application.

In some instances, the applicant may legitimately require the application to be fast tracked. If so, the UKVI guidance, as of 30 August 2016, states that a request to expedite the UK residence card application should be made via email to:

The following information must be provided with the request to expedite the matter:

  • Full name
  • Date of birth
  • Date of application
  • Royal Mail Recorded Delivery number, if applicable
  • Method of payment used when making the application (card, cheque etc.)
  • Case ID or Home Office (HO) reference, if known
  • Date of planned removal, if applicable

UKVI will review the request and decide whether to fast track the matter.

Extenuating or exceptional circumstances which may warrant an application to expedite the application for residence, and even permanent residence, can include:

  • A family emergency such as bereavement or serious illness
  • The need to travel for essential medical treatment overseas

In all cases, documentary evidence of the exceptional, compelling circumstances must be provided together with the information outlined above.

The request should be sent to UKVI via email. From experience, it is often helpful to write to the caseworker directly – the details of which can be found in any previous correspondence from UKVI.

Where there is no correspondence, it may help to write to UKVI at:

UK Visas and Immigration
Permanent Migration
PO Box 306
Liverpool
L2 0QN

It is worth adding that UKVI do not consider family celebrations such as weddings and holidays to be exceptional or compelling ‘family emergencies’ to merit expediting an application.

Further, UKVI does not consider day-to-day difficulties as compelling enough to warrant the application being fast tracked. This includes any reasonable difficulties that non-European family members may experience.

That said, it is still worth making the request to UKVI, explaining the circumstances (difficulties in securing a particular job) and documenting any difficulties experienced as a result of the delay.

Hopefully, there will be little need to take such action.

—————————————————————————————————————-

Written by Carla Thomas – Managing Director at Thomas Chase immigration.

Thomas Chase Immigration offer immigration assistance to individuals, families and organisations.

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3 Simple Steps to Confident Right to Work Checks

Thomas Chase Immigration - Right to Work Checks

Right to Work checks can cause HR professionals and businesses no end of stress. Get it wrong and the Home Office can impose heavy (and sometimes crippling) fines or civil penalties of £20,000 per unlawfully employed person. A sponsor licence can be suspended and then there is the reputational damage and at worse, criminal convictions of up to 5 years for serious offenders.

As if that wasn’t bad enough, Immigration Officers have the power to effectively close business operations for up to 48 hours. It’s not uncommon for HR professionals to confess that they are absolutely scared of getting this wrong and that hiring nationals from outside of the UK and EU can cause a sense of nervousness.

Yet finding a fantastic applicant to fill a key skills gap is a cause for celebration. The fact that the applicant has signed the employment contract and turned up for their first day of work is credit to the company and should be the start of an amazing journey together between employer and potential employee.

So how can HR professionals feel confident about the Right to Work checks? I advise them to follow these 3 simple steps:

  1. Obtain
  2. Check
  3. Copy and Retain.

Obtain

The key here is documents, documents, documents. Whilst the Home Office has placed a legal obligation on employers and HR professionals to check that the applicant has a right to legally work in the UK before the applicant starts working, the Home Office has also provided a list of original documents that it believes properly evidences such entitlements.

Those documents are partitioned into ‘Lists’ according to the current immigration status of the applicant.

List A Documents

Where an applicant has a permanent right to work in the UK, HR professionals may accept any documents from List A. The documents must be seen in their original format and must be obtained prior to the applicant starting their employment with the company.

As the applicant has a permanent right to reside and work in the UK, HR professionals will not need to conduct any further Right to Work checks for that applicant.

The company will have also established a continuous statutory excuse throughout that time. As a result, if for some reason, the applicant was later found not to have a permanent right to work in the UK, the employing company will have an excuse in law against liability for a civil penalty.

List A documents include:

1. A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK
2. A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland
3. A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office, to a national of a European Economic Area country or Switzerland
4. A Permanent Residence Card issued by the Home Office, to the family member of a national of a European Economic Area country or Switzerland
5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
6. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK
7. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
8. A full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
9. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
10. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer

List B Documents

Where an applicant has a limited right to work in the UK, List A documents will not be appropriate. Instead, HR professionals may accept documents within the List B class of documents. Again, the documents must be seen in their original format and accepted prior to the commencement of employment.

Follow-up Right to Work checks will be required due to the temporary nature of the applicant’s stay in the UK. Further checks will normally be required when the employee’s temporary permission to be in the UK has expired and been renewed.

Documents in this category are divided into 2 groups.

List B – Group 1

1. A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question
2. A current Biometric Residence Permit endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question
3. A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office  to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence
4. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer

Here, HR professionals have a time-limited statutory excuse which expires when the employee’s permission to be in the UK expires. Follow-up checks will need to be carried out when the document evidencing their permission to work expires.

List B – Group 2

1. A Certificate of Application issued by the Home Office under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service.
2. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
3. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question

For List B – Group 2, HR professionals have a time-limited statutory excuse against liability which expires 6 months from the date specified in the Positive Verification Notice. HR professionals should therefore carry out a follow-up check when this notice expires.

Check

Once the documents have been obtained, HR professionals must check that the documents are:

  • Genuine; and
  • The applicant presenting the documents  is the rightful holder; and
  • The applicant is allowed to do the type of work detailed in their employment contract and Certificate of Sponsorship, where applicable.

It’s worth noting that the Home Office do not expect HR professionals to be forgery or immigration experts. However, there are some common sense questions that HR professionals should ask themselves when checking documents:

1. Does the photograph on the document match the appearance of the person before you? For instance, the document may be genuine but the applicant in front of you may not be entitled to it.
2. Does the document appear to be genuine? Does it appear to have been tampered with? Again, expertise in forgery is not necessary but you will be amazed at the spelling mistakes some forgers make with the names of countries and the word ‘Embassy’.

For some EU documents that differ from one European country to the next, it can be difficult to determine which document is genuine and which is not? If presented with an EU document and you are not sure if it is genuine, I recommend making a quick visit to PRADO – Public Register of Authentic travel and identity Documents Online at http://www.consilium.europa.eu/prado/en/prado-start-page.html which is a great source of information in such instances.

3. Is the date of birth consistent with the appearance of the person in front of you? If not, further documents may need to be provided.
4. Does the applicant still have valid leave to be in the UK? If the document evidencing their leave has expired, evidence should be sought and verified to establish if an application has been submitted to the Home Office for further leave to stay in the UK.
5. Are there any work restrictions on the applicant’s ability to carry out the work stated in their employment contract? For instance, some students may take up employment though there may be restrictions placed on term-time employment.
6. Still have doubts? Have you checked the reasons for any differences in names across documents? Such doubts need to be handled with care so as to prevent the employer/ employee relationship getting off to a bad start. There may be a plausible explanation for discrepancies which can be reasonably addressed by way of, for instance, inspection of an original marriage certificate, divorce decree, deed poll. If so, supporting documents will need to be photocopied and a copy kept on file.

Copy and Retain

The applicant has provided their documents, the documents appear to be in order and the applicant has valid leave to be in the UK and can perform the duties required.

The final step to key. In order to demonstrate that the Right to Work checks have been properly carried out and prevent and liability against a civil penalty, HR professionals are advised to photocopy and retain the documents. This administrative area is where companies tend to fall short in their immigration responsibilities.

When photocopying documents, it is advisable to make a clear copy of each document. The copy should be one that cannot be altered and there needs to be a note made of date that the checks took place.

The copy of the document will need to be obtained in the personnel files either electronically or in hard copy.

For passports, HR professionals need not photocopy the whole documents, just the pages which contain details of the document expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photograph, information showing the applicant’s entitlement to be in the UK and ability to undertake the work detailed in the employment contract. For other documents, it may be necessary to copy the document in full. For example, both sides of a Biometric Residence Permit and Marriage Certificate demonstrating a change in name.

Conclusion

By taking the above steps of Obtain, Check, Copy and Retain, HR professionals should find Right to Work checks to be less complex and less difficult to carry out. If in doubt, seek expert immigration advice!

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families.

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Need straightforward immigration advice or guidance on the right to work checks? Contact us at [email protected] to arrange a consultation.

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