BRPs (Biometric Resident Permits) used to be known as Identity Cards for Foreign Nationals (ICFNs). They are the shape and size of a credit card and show a migrants photograph on the front, together with information about how long their extension is for. They also show whether they are allowed to do any work, and if they are required to register with the police. The card includes a microchip which contains two of the migrant’s fingerprints, and a digital photograph. The BRP will also state whether leave is limited or indefinite. Migrants as part of their visa application to the Home Office will be given a short time frame within which to enrol their biometrics; if they fail to meet this deadline their application may be rejected. This could result in them not being able to stay in the UK, this could have an effect for somebody who employs them and submits an application mid service. A migrant can not apply for a BRP on its own – they can only apply as part of an application to extend their visa or settle.
From 16 May 2014 employers owe a more strenuous duty to undertake checks to satisfy the requirements of the law preventing illegal working. Employers must prevent illegal working in the UK by carrying out document checks on people before employing them to make sure they are allowed to work in the UK.
These new requirements have been introduced to try to decrease the number of illegal workers and their mistreatment resulting in tax evasion and illegal housing conditions and to ensure less adverse impact on those who are lawfully in the UK. They are also intended to strengthen and simplify the civil penalty scheme for employers.
There are essentially three steps (OCC) to carrying out a ‘right to work check’ correctly:
Obtain – acquire original versions of one or more acceptable documents listed in the Home Office Guidance. The document produced shall either fall into List A or List B. List A means the employer will not have to carry out a check again, whereas a List B document will require an employer to diarise and make a repeat check or fall foul of the law!
Check – verify the validity of the documents in the presence of the holder; and
Copy – make and retain clear copies of the documents and record the date the check was made.
A collection of documents on Home Office policy, guidance and codes of practice on the right to work checks and illegal working can be accessed from here:
https://www.gov.uk/government/collections/employers-illegal-working-penalties
The Home Office has tried to be useful and has a variety of tools to help an employer check someones right to work, for example there are checklists and questionnaires see:
https://www.gov.uk/legal-right-work-uk
The codes of practice are up-dated regularly, typically every 6 – 12 months.
A Home Office report states that between 1 January and 30 June 2014, a total of 1235 penalties were issued across the UK, for 1951 illegal workers, the fines totalling in at £10,288,750. So it is quite clear that some employers are getting it wrong or maybe just out and outright turning a blind eye. Either way the Home Office are moving in, as private Landlords, DVLA and GP’s/NHS providers will also now be carrying out checks, on people’s right to be in the UK.
Rather helpfully the Home Office has produced for employers illustrative documents and pictures as to what can be accepted when it comes to the right to work, Biometric Residence Permits BRP’s, are not the only permitted documentation. The point of the BRP’s is to streamline documents by increasingly issuing BRP’s to all non-EEA nationals in the UK for more than six months. Since the end of 2012 the Home Office has stopped issuing other formats of document to people granted more than six months leave in the UK. However, there will continue to be older formats of documents issued prior to this in circulation, which means that employers shall still need to be on their toes. If in doubt, there is a Sponsorship and Employers’ Helpline available for businesses.
The point of the BRP’s is in part to help simplify employer checks, but I think this will take some time before the benefits/effects are felt. BRP’s have been rolled out to different classes of migrant at different times. They were first issued to non-European Economic Area (EEA) nationals in November 2008. Over time the Home Office is replacing all paper based documents with BRPs.
Students who applied for entry clearance in their home country until Feb 2015 were required to give their biometrics but were not issued with a BRP. Instead entry clearance was issued as a vignette in their passports. This was the only evidence of their permission to enter the UK. From March 2015 (at the time of writing the precise date is unknown) students applying for entry clearance for more than six months will be issued with two types of immigration permission. When a student makes their application abroad, they will have to say what town they are going to stay in when they first arrive in the UK. They will be given a short-term entry clearance (known as a short stay permit) in their passport that gives them 30 days in which to travel to the UK and then go to a Post Office near the town identified, to collect a BRP which shows their permission to be in the UK
To start with, the new system will apply only to people applying from Pakistan. Several weeks after it begins it will be extended to a second group of countries, with more countries being added on 29 May 2015, and all the remaining countries in the world on 31 July 2015.
I have also acted for quite a few employees, where I have had to write to their proposed employer to explain that individuals status, and it has resulted in some migrants not be able to secure work, just because there is confusion or miss-understanding.
Employers are encouraged to always ensure compliance with the requirements to establish or retain a statutory excuse and not receive a penalty for employing illegal workers, but it can be a tricky business.
Receiving a fine and having your company’s details open on display to the public can ruin your company’s reputation and risk an adverse impact on your business. BRP’s in the long term may make things simpler, but right now the reality is that there are going to be a lot of people with different types and style of visa and that shall need to be ironed out before the true benefits of a 1 system recognisable card, shall be felt.
Rebecca Bridges
12+ years sharing great legal advice
