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.

Call to action

If you would like further guidance on the rights of EU citizens or assistance with an application for a permanent residence document, contact us at Thomas Chase Immigration to arrange a consultation. Or learn more about immigration from our blogs.

 

You may also like:

EEA permit applications and processing times

Permanent Residence to British citizenship: Is it worth the hassle?

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

Call to action

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.

Statement of Changes: 28-day grace period

Statement of Changes: 28-day grace period

The government recently announced changes to the Immigration Rules for immigration applications made on or after 24 November. Here, we take an in depth look at one of the announced changes – the 28-day  grace period.

The Statement of Changes

On 3 November, the government announced the Statement of Changes to the Immigration Rules (HC 667). There is also an Explanatory note.

The changes mainly sought to implement the Migration Advisory Committee’s (MAC) recommendations into the Tier 2 immigration categories. Having studied the report by MAC, it is fair to say that many of the contents of the Statement of Changes were as expected. See my earlier blog on the recent immigration changes.

Yet, there was one change to the Immigration Rules that was not anticipated. That is, the 28-day grace period.

Background to the 28 days’ grace period

Where a person remains in the United Kingdom (UK) beyond the expiry of their visa, they will be deemed to have ‘overstayed’ their leave and could be subject to removal directions.

What happens if the individual submits an in-time application to UK Visas and Immigration (UKVI) to extend or vary their leave, but fails to receive an immigration outcome prior to the end of the visa?

Due to an amendment to the Immigration Act 1971 referred to as ‘section 3C leave’ that individual will be prevented from becoming an overstayer whilst they are awaiting a decision on an in-time application.

Therefore, a person will have section 3C leave if:

  • They have limited leave to enter or remain in the UK
  • They apply to UKVI for variation of that leave
  • The application for variation of leave is made before the leave expires
  • The leave expires without the application for variation having been decided
  • The application for variation is neither decided nor withdrawn

(This applies to appeals also but subsequent changes to the law has complicated this area and is a matter for another blog).

In October 2012, a ’28-day grace period’ for all visa applicants was introduced. Whilst not a concession, it was a tool that allowed UKVI to disregard a very limited period of overstaying by the applicant where the application was submitted 28 days from the expiry of the visa.

In those circumstances, the UKVI caseworker would be allowed to go on and consider the application under the immigration rules.

Where an application to extend or vary leave is made out-of-time, section 3c leave will not apply. The 28-day grace period has therefore been helpful in preventing out-of-time applications from being completely disregarded due to innocent mistake or exceptional occurrence; an approach that was confirmed by the Upper tribunal in December 2015 in the case of R (on the application of Bhudia) v Secretary of State for the Home Department.

What has changed?

As of 23 November, the 28-day grace period will no longer apply as the government believes it to be inconsistent with their overall message of strict compliance with the UK’s immigration laws.

In a  Written Ministerial Statement to announce the Statement of Changes, the Minister for Immigration, Robert Goodwill, summarised the amendments and added:

‘We are also abolishing the ‘28-day grace period’, during which we currently accept out of time applications for a range of routes including work and study, to encourage greater compliance with the Immigration Rules. This will make clear that people must comply with the Rules and make any application for further leave before their current leave expires’.

What does this mean?

Immigration applications to extend or vary leave should always be submitted in advance of the expiry of the visa – that has not changed.

For individuals making an out-of-time application because of exceptional circumstances, the lack of a grace period would be extremely harsh.

Perhaps, for this reason, the government did not abolish the grace period altogether but instead reduced the 28-day period to within 14 days of the expiry of the visa.

As such, UKVI can disregard this limited period of overstaying if the Secretary of State considers that there is a good reason beyond the control of the applicant or their representative.

In addition, where an individual who has had their leave extended by section 3C leave, the 28-day period is to be reduced to 14 days from the expiry of any leave extended by section 3C.

Conclusion

The recent Statement of Changes introduced a number of changes to the Immigration Rules that will apply from 24 November. One such change includes the 28 days’ grace period being reduced to14 days, a measure introduced by the government to encourage compliance with immigrant laws. Regardless, of the grace period, individuals should adhere to the number one immigration rule: do not overstay your visa! Submitting an application to UKVI to extend or vary leave within the validity of the visa can prevent adverse consequences and help to protect an individual’s immigration status. Nevertheless, where there are exceptional reasons for submitting an out-of-time application on or after 24 November 2016, it is recommended that the application is submitted within 14 days from the expiry of the visa as the 28-day grace period will no longer apply.

For immigration advice or assistance, please feel free to contact us.

 

Brexit Latest: Brexit and Immigration

Brexit Latest: Brexit and Immigration

At the Conservative Party Conference in Birmingham on Sunday, Prime Minister Theresa May laid out her position on Brexit. Article 50, the formal mechanism for beginning exit negotiations from the European Union (EU), would be invoked by the end of March 2017.

During the negotiations, Mrs May said that immigration control, and not better trade deals, would be the priority. This was the strongest indication yet of a ‘hard Brexit’ approach, an approach that was reaffirmed by David Davis, the Brexit Secretary, who promised to not only control immigration but to ‘bring numbers down’ when he addressed the conference.

Yet, the hard Brexit approach has already began to cause some friction within in the Conservative party. There are those within (and outside) the party who would like to see the government adopt a ‘soft Brexit’ approach. One that would see access to the single market balanced with free movement of people.

Mrs May also proposed the repeal of the 1972 European Communities Act (ECA) which gives direct effect to all EU law, and spoke of the introduction of the ‘Great Repeal Bill’ which would enshrine ‘all’ EU law into UK law. She stated:

‘This historic bill, which will be included in the next Queen’s speech will mean that the 1972 Act, the legislation that gives direct effect to all EU law in Britain will no longer apply from the date on which we formally leave the European Union’

Mrs May added;

‘Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end’.

The Repeal Bill’s aim to enshrine all EU laws in UK law seems at odds with Mrs May’s stance on UK sovereignty. The likely aim of the bill to provide much needed assurances to the business sector that little will change immediately post-Brexit.  

Yet, this would still provide little comfort to businesses and UK universities uncertain about not only trade but still confused as to the long term impact to European employees, workforce and students.

In fact, little information was given to recent and longer term

EU residents in the UK. Mr Davis said that the UK, during negotiations, will protect the rights of EU citizens in the UK ‘so long as Britons in Europe are treated the same way’, suggesting that there is still some way to go before EU citizens gain clarity on their longer term status.

Aside from any deals yet to be negotiated, the likelihood is that post-Brexit, EU laws enshrined in law will be diluted and amended over time. Eventually, UK courts will need to interpret immigration laws in keeping with the will of Parliament and not Europe.

For those involved in immigration, we can only hope that vital safeguards are not lost altogether. We will watch this space closely to see how things progress.

 

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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