Until recently applicants applying from overseas to enter the UK received an endorsement in their passport, rather than a separate Biometric Residence Permit.
Biometric Residence Permits were, until recently, only issued to migrants applying for further leave from within the UK. However, since 31 July 2015 migrants applying for leave to enter from overseas will be required to have a Biometric Residence Permit. This has implications for the entry clearance/visa process and also in relation to right to work checks.
What is a Biometric Residence Permit?
Biometric Residence Permits are credit card-sized immigration documents with a secure embedded chip containing the migrant’s unique biometric identifiers (fingerprints and digital photo) within the chip. There is also a photo and biographical information on the face of the permit and details of the migrant’s entitlement, such as access to work and/or public funds. The idea is therefore that Biometric Residence Permits will provide employers with a simple means to conduct a right to work check.
The new process for migrants applying from overseas
Migrants will apply for their visa or entry clearance in the usual way by completing the online application form, paying the relevant application fees and NHS surcharge fee (where applicable) and then booking and attending a biometrics appointment and submitting all the relevant documents.
Assuming that the application is successful, the migrant will still be issued with a vignette in their passport. However, this endorsement will now only be valid for a period of 30 days from the date of travel indicated on the migrant’s application form as being their intended date of travel. It is therefore important that migrants provide as accurate a date of travel as possible.
If the individual does not enter the UK within the 30 days, as set out on the vignette, the migrant will need to apply for another 30 day visa before travelling to the UK and will have to pay a fresh application fee for the 30 day visa.
It is therefore vital that the migrant is aware that they will need to enter the UK within the 30 day period.
Collecting the Biometric Residence Permit
Migrants will also receive a decision letter setting out where they need to collect their Biometric Residence Permit once they arrive in the UK.
Migrants must collect their Biometric Residence Permit within 10 days of arrival in the UK. In most cases, the collection point will be at a Post Office branch near to where the migrant lives or works. If the migrant fails to collect their Biometric Residence Permit within 10 days of arriving in the UK, their leave may be cancelled. Migrants are advised not to travel during the period between arriving in the UK for the first time and collection of their Biometric Residence Permit.
In most cases, the individual migrant must collect their own Biometric Residence Permit. One exception is if a migrant has travelled into the UK with their family as in that case the migrant should be able to collect the Biometric Residence Permits on behalf of the family members. Migrants must take their original passports, family members’ passports and the decision letter(s) with them in order to collect their Biometric Residence Permit.
When are migrants now permitted to start work in the UK?
Starting work before collecting the Biometric Residence Permit
We strongly advise that the migrant collects their Biometric Residence Permit before starting work in the UK.
However, if the migrant urgently needs to start employment prior to collecting their Biometric Residence Permit, they must provide the employer with their original passport containing the 30 day visa vignette. This must be shown to the employer before the first day of employment and the employer must take a copy of the passport, and the vignette and ensure this is retained on the personnel file. However, this visa expires within the 30 day period stated on the vignette so employers should ensure that the vignette is still valid during the period between the person starting work and the person collecting the Biometric Residence Permit. The employer should also date and sign those copies and record the visa expiry date in the personnel records.
Further, employers will need to repeat the right to work checks once the migrant has received their Biometric Residence Permit. If the employer fails to carry out the further check once the Biometric Residence Permit has been issued, the employer will not have a statutory excuse if it later transpires that the person at any point loses their right to be working in the UK.
Therefore, once the employee has been issued with their Biometric Residence Permit, they must show their original passport and Biometric Residence Permit to the employer and the employer must take copies of this and retain them on the personnel file. The employer should also date and sign those copies and record the visa expiry date in the personnel records. We also recommend that the employer has a system in place to alert them at least 3 months before the visa is due to expire. That way there should be sufficient time to commence the process for the individual to obtain further leave to remain. Finally, in order to continue to have a statutory excuse, the employer must conduct further right to work checks at the time of the expiry of the Biometric Residence Permit.
It is crucial that employers record when the initial 30 day visa will expire and ensure that they have carried out a further right to work check and obtained the original Biometric Residence Permit before the expiry of the 30 day visa. Otherwise, there is a risk that if the 30 day visa has expired and the individual has not yet collected their Biometric Residence Permit the migrant may be working unlawfully. Further, if the employer does not carry out a check before the expiry of the 30 day visa, the employer will no longer have a statutory excuse against illegal working.
Starting work after collection of the Biometric Residence Permit
In this case it is important that the original passport and Biometric Residence Permits are seen and copied before the first day of employment. The other points highlighted above remain applicable but there is no need to carry out a first check of the vignette if the person has the Biometric Residence Permit.
General points when checking Biometric Residence Permits
When checking Biometric Residence Permits employers should ensure that they do the following:-
- Look at the permit carefully and check to see if it has obviously been tampered with;
- Check the permit number (it should start with 2 letters followed by 7 numbers);
- Check the migrant’s image to ensure so far as possible that it matches the person standing in front of you;
- Check the tactile feature on the permit to make sure that you can feel the raised design at the back;
- Feel the permit (it should not be bent or folded and should feel a little thicker than a photocard driving licence);
- Check the biographical details to ensure that they match that of the sponsored migrant; and
- Importantly, check the sponsored migrant’s immigration conditions on both the front and back of the permit and the expiry date of their leave.
If you have any concerns when carrying out a check in relation to a Biometric Residence Permit, there is an online right to work checking service available through the Home Office which enables you to obtain confirmation that the Biometric Residence Permit is valid.
Provided that employers carry out the above checks correctly, the employer should obtain a statutory excuse in the event that it later transpires the person does not have the right to work in the UK.