ILR / Proof of Right to Work in the UK

[dijon79]

Background :

 

My partner has had the right to work in the UK since 2008, initially on a VAF4 spouse's visa.

She subsequently obtained ILR in January 2011.

The ILR permit is inserted in a passport that expired 2013.

When my partner renewed her passport in 2013 she did not have the ILR permit transferred to her new passport as there was no requirement to do so.

Hence, she currently has a valid (Thai) passport that expires in 2018 and a valid ILR permit (that is obviously indefinite) in a passport that expired in 2013. We are aware that, to this day, these documents (in their current form) are perfectly acceptable to use for travel.

She has been employed by three different companies over the last 3 years and encountered no issues. She has also submitted HMRC returns for the last few years, again with no issues.

Nobody (employers/HMRC/Home Office) has ever suggested to us that her documents were not in order, and no party has ever suggested that they need to be revised.

We were of the belief that ILR was the last visa she ever needed to apply for, unless she chose to apply for Naturalisation.

 

The Problem :

 

My partner has applied to be Licensed by our local Authority, and they have naturally checked the eligibility of her right to work in the UK.

She has, concurrently, applied to open a Business Account with Nat West and, after requesting copies of her passport and ILR, they have opened the account with no further queries.

To our dismay, however, our local Authority have raised an objection to the fact that the ILR permit is in a passport that has now expired, despite the ILR being indefinite.

They are of the opinion that, unless the ILR permit is secured in a valid and current Passport, my partner no longer has the right to work in the UK. Consequently they are are refusing to issue her with a Licence.

From some research I can see that regulations appear to have changed in 2014. However, my partner's ILR and passport both pre-date these changes.

 

The Solution :

 

This is where I become uncertain of the correct course of action.

The first question I should probably ask is, (1) Are the Local Authority correct in their decision to refuse her Licence based on her existing documents?

If it transpires that they are correct (and not withstanding why neither previous employers nor other parties have alerted us to any anomalies) then (2) How best do we now remedy the situation to enable our Local Authority to comply with current legislation?

From what I can gather, and having spoken to the Thai Embassy, it is no longer possible to have the existing ILR permit transferred to either a present or subsequent Thai Passport. Apparently the point in time has passed where this would have been possible.

 

I'm led to believe that what we now need to arrange is a Biometric Residence Permit (BRP), please correct me if I'm wrong.

There appear to be two ways to obtain a BRP. Firstly, by post (form NTL) which I suspect will take several months and appears to cost £237. Secondly, at a Premium Service Centre at a cost of an extra £590 (+£75 depending on the time of the appointment). 1st June is the earliest available at Croydon at the time of writing, and the figure quoted to us is £721 (this doesn't correlate with what we believe the breakdown of costs should be but that's a question for later). We would probably expect to have the BRP in our possession around 12-15 June should we go this route. (3) If we applied via the Premium Service Centre should we be ticking the box for BRP or NTL? Both seem to apply equally..

One other curiosity is that the Local Authority have informed us that once an application has been sent they are, within 2 weeks, able to request a validation code from the Home Office, which will then be provided to them around 7-10 days later, at which point they will be able to authorise a Licence. I presume they are referring to a postal NTL application? If true, that could also facilitate the issuing of a Licence around mid June, although we have reservations about sending something this important by post to sit in a backlog.

 

Apologies for the long post, I have tried not to miss out anything that could be relevant. Please also accept my apologies if there is already an existing thread that covers this subject in sufficient detail.

 

Any advice would be most gratefully received.

 

 

 

 

 

 

 

[7by7]

On ‎18‎/‎05‎/‎2017 at 5:03 PM, dijon79 said:

(1) Are the Local Authority correct in their decision to refuse her Licence based on her existing documents?

 

As you say, her ILR has not expired simply because the passport the stamp is in has. But with the introduction of BRPs things have changed somewhat.

 

The guidance says

Quote

You don’t have to transfer your visa - you can carry both your old and new passports when travelling to or from the UK instead.

So it is logical to believe that this applies to proof of status and right to work in the UK as well.

 

But; on page 14 of An employer’s guide to acceptable right to work documents it says

Quote

When a non British passport indicates that the holder has indefinite leave to enter or remain in the UK or a right of abode in the UK that has time expired or is about to time expire, the holder may apply to transfer the vignette in that passport to a Biometric Residence Permit by applying for No Time Limit. More information is available here. Whilst this application is outstanding, you may obtain a statutory excuse though the Employer Checking Service. More information is available here.  

So, to be honest, I'm not totally sure; but it looks like she will have to apply for a BRP using the no time limit form.

 

Perhaps, as both the UK and Thailand allow dual nationality, she should have applied for naturalisation as British when she was time qualified in 2011?

 

The fees for doing so back then were not as exorbitant as they are now, and doing so would have saved all this hassle as well as the other advantages; such as British citizens being able to visit many more countries without a visa than Thai citizens can.

 

Still worth considering, I believe, despite the cost.

[Trevor1809]

Is an MP still technically your representaive until the election? I would take it up with whoever is your current MP and ask for some sort of quick decision. It is not unknown for local authrities to make things up. What about an immigration solicitor if the alternative is hundreds of pounds on a fast track biometric card. Or pay the fees then make a complaint to the council then get an Ombudsman's adjudication.

[dijon79]

Thanks for the responses.

 

Whilst naturalization is very much on our agenda at some stage, it doesn't provide a solution to this case as I understand it will take in excess of 6 months, and the Local Authority are presently refusing to allow her to work in the UK.

 

I'm genuinely not sure myself which course of action to take and my greatest concern (other than the fact that she is not being allowed to work) is that a wrong move now could be very costly for us in terms of lost time, not to mention the expense.

 

I'm going to try and contact UK Visa & Immigration at this stage, although that might be easier said than done.

 

If anyone could throw any more light on this in the meantime it would be much appreciated. Thanks.

 

 

[Trevor1809]

As time is of the element I guess that you have to go with what ever option gives you the quickest result. That to me means getting an Immigration solicitor on the case.

Unfortunately being forced to incure legal expenses due to a Government/Local Authority C up isn't recoverable as I found to my cost after being overcharged on NHS surcharges.

[dijon79]

Having found it surprisingly easy to contact UKVI this morning, I think I can now answer my own questions. I'll post below as I'm sure this will be useful to others.

 

(1) Are the Local Authority correct in their decision to refuse her Licence based on her existing documents?

Yes, it would appear that they are. Quite how and why there has been no publicity about this since 2014 is a mystery to us but, apparently, if your ILR is not in a current passport you can not be guaranteed to be allowed to work in the UK. This advice does not apply to travelling where separate documents for each is still acceptable (this could, of course, change at a later date).

 

(2) How best do we now remedy the situation to enable our Local Authority to comply with current legislation?

What we are required to do is transfer the existing ILR to a new BRP. The two ways of doing this are i) by post, and ii) at a Premium Service Centre.

By post, we would be required to wait approximately 4 weeks (could be much longer of course) by which time we should receive a confirmation letter which will contain a reference number. This reference number can then be used by the prospective employer to check the employee's status. They will receive a response from UKVI within around 5-10 working days. So this process would take around 6 weeks and if you make an error or the form is lost in transit it could take months.

At a Premium Service Centre (extra £590) your documents will be checked and Biometrics taken. You will be given a decision within 2-2.5 hours if your appointment is not too late in the day. You will then be sent, by post a BRP, which should take 7-10 days.

We were rather fortunate in that an appointment was available for tomorrow, most of the appointments are a fortnight down the line. The total cost for us is £902 (which includes £75 for an out of office hours appointment slot).

 

(3) If we applied via the Premium Service Centre should we be ticking the box for BRP or NTL? Both seem to apply equally...

We have been informed to tick the box for NTL. It was lucky that I checked this as I'd probably have ticked BRP if forced to choose. This explains why the original price quoted of £721 didn't seem to correlate as that was for a BRP application. The £902 consists of 1) NTL application (£237), Premium Service Centre (£590) and Out of Hours Appointment (£75).

 

I presume that, for anyone granted ILR after 2014, a BRP would have been issued therefore this issue will not occur.

 

However, for anyone issued with ILR prior to 2014, and who didn't believe it was a requirement to have this transferred to new travel documents, this employment issue is looming for them and they will probably not be aware of it.

[Trevor1809]

It would still seem a good idea to contact your ne MP for legal clarification. How can you have one acceptable rule for travel purposes then a completely different rule for employment purposes?

If the rule about having it in the current passport is required then it should be more widely known and the Government can charge a stonking great fee for doing it.

[dijon79]

5 minutes ago, Trevor1809 said:

It would still seem a good idea to contact your ne MP for legal clarification. How can you have one acceptable rule for travel purposes then a completely different rule for employment purposes?

If the rule about having it in the current passport is required then it should be more widely known and the Government can charge a stonking great fee for doing it.

 

Stonking great fees indeed. Did I forget to mention the Super Premium Service option? £10,500 a shot but they'll very kindly pop round your house and take your photo. Saves you £50 in travel costs I guess.

 

https://www.gov.uk/ukvi-premium-service-centres/use-the-super-premium-service

 

 

[7by7]

2 hours ago, Trevor1809 said:

How can you have one acceptable rule for travel purposes then a completely different rule for employment purposes?

Different departments?

 

2 hours ago, Trevor1809 said:

If the rule about having it in the current passport is required then it should be more widely known

To be fair, although I haven't checked in this case, usually when procedures and/or rules change the Home Office do issue a press release. It's not their fault if the media choose to ignore that release.

 

2 hours ago, Trevor1809 said:

the Government can charge a stonking great fee for doing it.

The fee for transferring an ILR vignette from an old passport to a new one was equally outrageous!

[dijon79]

My partner now has a shiny new BRP on the way following a fairly straightforward visit to Croydon this morning. Confirmation of approval was rather impressively given to her just 1.5 hours after the start of her appointment. They have told her to expect the BRP in 2 days but I think that's possibly a tad optimistic.

 

They have, however, provided her with a letter confirming it's approval. Whilst I haven't had sight of the letter yet, from what I have been told it might just be sufficiently detailed to allow her to work straight away. Whether the Local Authority will accept this letter (or insist on waiting for the BRP) I'll find out later this afternoon. At worst, she'll be able to work in around a week.

 

One note of caution... Because she was visiting the Premium Service Centre (who take the biometrics) we did not include photographs with our application. We should have done. Whilst we got away with it this morning (they allowed her time to use their photo booth) others might not and could find their appointment voided. So,  even if you're using the Premium service, make sure you take the photographs it asks for in the guidance notes.

[Trevor1809]

" Yes, it would appear that they are. Quite how and why there has been no publicity about this since 2014 is a mystery to us but, apparently, if your ILR is not in a current passport you can not be guaranteed to be allowed to work in the UK. This advice does not apply to travelling where separate documents for each is still acceptable "

 

" Different departments? "

 

I assume that the Local authourity authourising what ever the op wanted authouring is one and the Immigration Dept allowing entry to the UK is another, apparantly working to different rules unless I missed something.

[7by7]

The local authority is not authorising anything. The OP's wife needed to show them that she had the right to work in the UK and they, rightly as it turns out,  did not accept her ILR stamp in an expired passport as proof of her right to work in the UK.

 

All employers in the UK have a legal obligation to check that the people they employ can legally work in the UK; either because they are British or (until Brexit at least) EEA citizens or because their leave to enter or remain allows them to work in the UK.

[dijon79]

14 minutes ago, Trevor1809 said:

" Yes, it would appear that they are. Quite how and why there has been no publicity about this since 2014 is a mystery to us but, apparently, if your ILR is not in a current passport you can not be guaranteed to be allowed to work in the UK. This advice does not apply to travelling where separate documents for each is still acceptable "

 

" Different departments? "

 

I assume that the Local authourity authourising what ever the op wanted authouring is one and the Immigration Dept allowing entry to the UK is another, apparantly working to different rules unless I missed something.

 

From the information given to me by UKVI this is a universal rule and not one confined to Local Authorities (other than that in our specific case it was they who we approached, and they who said nope).

 

It would appear to be the case that all employers should be now be refusing offers of work if ILR is not in a current passport. I'm sure many employers don't know this (my partner could name a couple!) but our Council (bless them) certainly did.

 

 

Edited May 24, 2017 by dijon79
edit to add *current passport or BRP

[Trevor1809]

1 hour ago, 7by7 said:

The local authority is not authorising anything. The OP's wife needed to show them that she had the right to work in the UK and they, rightly as it turns out,  did not accept her ILR stamp in an expired passport as proof of her right to work in the UK.

 

All employers in the UK have a legal obligation to check that the people they employ can legally work in the UK; either because they are British or (until Brexit at least) EEA citizens or because their leave to enter or remain allows them to work in the UK.

The op said " My partner has applied to be Licensed by our local Authority, and they have naturally checked the eligibility of her right to work in the UK. " The op's wife has an ILR visa and therefore a right to work. The LA for some reason to do with what ever the licensing is refused the accept the perfectly valid ILR ( valid for purpose of entering the country). We dont know what licensing the op's wife was asking for. This is nothing to do with an employer carrying out their legal responsibility to check an employee's right to work. Unless the op used the term licensing when what he meant was employment check.

[7by7]

10 minutes ago, Trevor1809 said:

The op said " My partner has applied to be Licensed by our local Authority, and they have naturally checked the eligibility of her right to work in the UK. " The op's wife has an ILR visa and therefore a right to work. The LA for some reason to do with what ever the licensing is refused the accept the perfectly valid ILR ( valid for purpose of entering the country). We dont know what licensing the op's wife was asking for. This is nothing to do with an employer carrying out their legal responsibility to check an employee's right to work. Unless the op used the term licensing when what he meant was employment check.

No one has said that Dijon79's wife is seeking employment with their local authority!

 

As I said; the local authority need to check her right to work in the UK before they can issue her a licence; whatever that is for, presumably employment or self employment of some kind which requires a local authority licence.

 

As dijon79 said, UKVI have confirmed that an ILR stamp in an expired passport is no longer proof of the holder's right to work in the UK and an NTL BRP is now required.

 

So what is your point?

 

 

[dijon79]

13 minutes ago, Trevor1809 said:

The op said " My partner has applied to be Licensed by our local Authority, and they have naturally checked the eligibility of her right to work in the UK. " The op's wife has an ILR visa and therefore a right to work. The LA for some reason to do with what ever the licensing is refused the accept the perfectly valid ILR ( valid for purpose of entering the country). We dont know what licensing the op's wife was asking for. This is nothing to do with an employer carrying out their legal responsibility to check an employee's right to work. Unless the op used the term licensing when what he meant was employment check.

 

I'm sorry Trevor, but what you posted here is not correct.

 

Whilst the LA are issuing a licence in this instance, they are not the prospective employer. The LA issue compulsory licences for a multitude of vocations, for example market traders, publicans, cab drivers, hypnotists, motor salvage etc. One common denominator is that these are all self-employed positions that require a valid licence to be issued by the LA prior to commencement. This process involves checking the applicant, and the various elements of this include confirming their eligibility (and duration of) to work in the UK.

 

It's probably an idea to completely disregard the role of the LA at this stage, this situation would apply just as equally if you were applying for a job with Barclays, Costa Coffee or any company that's kept themselves fully up to date with legislation and employer responsibilities. If it had transpired that the LA were incorrect then the LA would still be relevant, as it is they were correct in the information they gave me.

 

When I spoke with UKVI I did not mention a licence, I did not mention an employer. They did not ask. It was not relevant. From what they told me, this is a universal requirement (albeit one that not many people seem to be aware of).

 

Whilst you refer to a 'perfectly valid' ILR the situation now is that a valid ILR in a previous travel document is valid only for living and travelling. Not for working. Or at least not at the point that you are required to have your documents checked.

 

If this legislation is really enforced at some stage, there will no doubt instances of existing employees being forced out of jobs as a result. Having said that, it may well be the case that most pre-2014 ILRs are already transferred to BRPs or naturalization so the numbers of affected people might turn out to be quite small.

[dijon79]

Just a final point to add to my previous post, if my partner had applied for a job with Barclays or Costa Coffee, and if she hadn't had £902 available at the drop of a hat, would they really have kept the job open for in excess of 6 weeks? I suspect many employers would not.

[Trevor1809]

Dijon79 Thanks for clarifying however the LA was doing the check to issue the licence. 7by7 was referring to the check that an employer is legally obliged to do and he was then criticising me. This wasn't an employment check, not as I understand it.

Just because somebody says something doesn't make it right or legal. The NHS surcharge for a 2.5 year visa is £500. ie UKVI must legally charge an applicant £500. I was charged £2000. Their excuse to the Ombudsman was "that it was the process at the time". ie the process as they implemented it. It didn't make it right or legal.

Just because somebody interprets a law and implemnents as they see fit doesn't make it right. Otherwise UKVI could charge what ever they liked, well they do anyway.

[dijon79]

1 hour ago, Trevor1809 said:

This wasn't an employment check, not as I understand it.

 

It was as much of an employment check as it would have been if she had been applying for a job at the Council. However, as I said above, it's now irrelevant. It won't help anybody further down the line to read a protracted discussion about the LA.

 

Put aside the LA and take note of what UKVI have said.

[dijon79]

It's been confirmed this morning that the Home Office letter issued yesterday by the Premium Service Centre is considered acceptable proof of indefinite right to work in UK. We do not now need to wait until we are in receipt of the BRP.

 

Thanks for everybody's assistance. It's been an enlightening, and expensive, week.