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United Kingdom Immigration Update 2015 re: Biometric Residence Permits, NHS Surcharges and More

Biometric Residence Permit regulations will begin rollout in March.

New regulations will require individuals from overseas who apply for a visa for more than six months to obtain a Biometric Residence Permit (BRP) following their arrival in the UK. The Biometric regulations will be rolled out for a four-month period beginning in March 2015 and will apply to all overseas nationals by 31 July 2015.

Individuals from overseas who apply for entry into the UK for more than six months will now be issued with a short-stay travel vignette (visa stamp) for 30 days and a letter of approval. The letter of approval will designate a local Post Office branch from which the BRP must be collected following their arrival in the UK. When an individual arrives in the UK, the short-stay travel vignette will be endorsed with a date of entry and the individual is required to collect the BRP within 10 days.

Individuals who do not travel to the UK within the 30-day validity period of the short-stay travel vignette must apply for a replacement short-term vignette to enable them to travel to the UK.

If the BRP is not collected within 10 days of arrival, it will be cancelled, which could affect an individual’s permission to remain and/or work in the UK.

If individuals are required to start work before collecting their BRP, they will be able to show evidence of their right to work by producing their short-term vignette in their passport, provided it is still current. In these circumstances, an employer will then be required to request and copy their BRP when the short-term vignette expires.

The regulations designed to prevent overseas nationals from working illegally provide an employer with the flexibility to either

  • require an employee to collect his or her BRP before the individual’s employment commences, meaning one check will take place at the start of employment using the BRP, and the next check will be given when the employee’s permission expires (as set out on the BRP); or

  • if employment needs to commence before an employee collects the BRP, an employer must conduct a right to work check on the basis of the short-term vignette, and then again on the vignette’s expiration, at which point the individual must provide the original BRP. The right to work check must then be conducted again on the BRP’s expiration.

The initiative will be rolled out in phases over a four-month period, which is expected to commence in March 2015 starting with nationals form Pakistan. The new process will then apply to all overseas nationals by 31 July 2015:

NHS Surcharge

A National Health Service (NHS) surcharge is expected to come into effect in April 2015 for all non–European Economic Area (EEA) nationals who apply for leave of more than six months. It is currently proposed that the surcharge will be in the region of £200 per year and will be applicable to the main applicant and dependant applications.

The surcharge will be payable up front and in full when the application is made, rather than on an annual basis. The surcharge will be in addition to the visa application fees, and it is expected that there will be no opt out available for migrants who wish to make their own healthcare arrangements.

The surcharge will not apply to Tier 2 (Intra-Company Transfer) migrants, who will continue to be able to access NHS care without charge, and students who apply for Tier 4 (General) status will be required to pay a reduced fee of £150 per year.

Employers that wish to pay or contribute to the cost of the surcharge will need to give careful consideration to the tax, national insurance, and other compliance implications associated with doing so.

Right to Rent Checks

On 1 December 2014, a new scheme was introduced that placed an obligation on landlords to check the immigration status of their tenants prior to entering into a tenancy agreement for residential accommodation.

The scheme has initially been launched in Birmingham, Walsall, Sandwell, Dudley, and Wolverhampton, and it is expected to extend across the UK during 2015.

Landlords who rent to illegal migrants without conducting these checks will be liable for a civil penalty of up to £3,000.

To establish a statutory excuse against liability for a civil penalty, landlords will be required to conduct simple document checks before allowing adults to occupy rented accommodation to ensure that prospective occupiers have the right to rent in the UK.

The checks will only apply to “residential tenancy agreements” entered into after the date on which the scheme is implemented in the area in which the property is located. Employers that provide tenancy agreements to employees will not be required to conduct right to rent checks at this stage.

Where the proposed occupier has a time-limited right to rent, the landlord will be required to repeat the checks every 12 months or within 28 days of the expiration date of the document that evidences the right to rent. If follow-up checks indicate that the person no longer has the right to rent, to maintain their statutory excuse, the landlord must make a report to the Home Office before the expiration of an existing statutory excuse.

Tier 1 (General) Reminder

The Tier 1 (General) route will close to extension applications on 6 April 2015 and to indefinite leave to remain (settlement) applications on 6 April 2018. Tier 1 (General) migrants who apply to extend their visas on or after 6 November 2014 will be eligible to extend their stay for three years (or the period needed to take their total leave under the Tier 1 (General) scheme to five years).

Prevention of Illegal Working: Update

In May 2014, significant changes were made to simplify the right to work checks and to strengthen the penalties for noncompliance. Where a person now presents a document prior to commencing employment that contains an expiration date, an annual right to work check is no longer required. Instead, the follow-up check is required when the individual’s permission to be in the UK and do the work in question expires.

Where an individual commenced employment prior to 16 May 2014 and his or her employer was required to conduct an annual right to work check, one further annual right to work check should be conducted to bring the individual in line with the rules now in place.

In addition, employers can no longer rely on a non-EEA national’s UK visa contained within an expired passport to evidence their right to work in the UK.

Annual Allocation Request Process

The annual allocation request process for unrestricted Tier 2 (General) and Tier 2 (Intra-Company Transfer) certificates of sponsorship for the year beginning 6 April 2015 to 5 April 2016 is under way.

To date, the Home Office has selected approximately 9,000 sponsors for automated renewals. If a sponsor has been selected for automated renewals, then the Sponsorship Management System will not allow the sponsor to submit a manual request. These sponsors will automatically receive the number of certificates of sponsorships that they have used in the last allocation year and will be required to submit an additional request for further certificates, if required, after 6 April 2015.

Sponsors who have not been selected for automated renewals should now submit manual requests as normal. The Home Office will notify the authorising officer if the sponsor is required to submit a request manually, and the Home Office is advising sponsors to submit their requests by the end of February to ensure that the request is processed by 6 April.

Roland C. Lechner and Lisa Stephanian Burton also contributed to this article. 

Copyright © 2022 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume V, Number 43

About this Author

A James Vazquez-Azpiri, Morgan Lewis, employment attorney

A. James Vázquez-Azpiri counsels corporate clients on hiring and retaining foreign employees in his business immigration law practice. He advises businesses on labor certifications, specialty occupation petitions, and intracompany transfers. Clients rely on James for guidance through immigration law compliance during mergers, acquisitions, and corporate restructurings. He helps clients think and work proactively by providing them with traditional compliance policy reviews and audits, case management and litigation technology, and international executive travel and...

Nicholas Hobson, Immigration attorney, Morgan Lewis
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As a senior member of the firm’s immigration and global mobility team, Nicholas Hobson counsels employers on global immigration matters, including UK immigration law and preparations for Brexit. Nick advises clients on immigration strategy and compliance, prevention of illegal employment, sponsor license applications, and the full range of immigration permissions. Nick also helps lead applicants and their dependents prepare applications for entry clearance (visas), further leave to remain, settlement/permanent residence, and nationality. Nick is admitted as a solicitor...

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Jennifer Connolly, Immigration attorney, Morgan Lewis

Jennifer Connolly is a member of the firm’s immigration and global mobility team. Jennifer advises businesses of all sizes from a variety of sectors on the full range of UK immigration permissions as well as global immigration matters for the EMEA region. This includes prevention of illegal working, Tier 2 of the points-based system, sponsor license applications, business visitors, preparations for Brexit and other UK employment-related immigration categories.

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A recognized leader in immigration and nationality law, Eleanor Pelta counsels clients on legal and strategic issues arising from the international movement of key personnel, from the individual transfer of high-ranking executives to high-volume transfers of expert staff. Her experience includes the use of blanket visa programs and the qualification of companies as “treaty investor” or “treaty trader” entities. Additionally, Eleanor counsels businesses on the immigration implications of corporate changes, such as mergers, acquisitions, downsizings, reductions in force,...

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Eric S. Bord counsels clients on corporate immigration issues involving the recruitment, hiring, transfer, and retention of personnel worldwide. He also advises businesses on compliance and risk management in connection with their global immigration programs. This includes counseling on compliance with I-9 and E-Verify rules, advising clients during immigration investigations, and conducting immigration due diligence for corporate transactions. Eric heads Morgan Lewis’s immigration compliance and risk management practice.