As an employer it is your duty (as well as the employee’s) to ensure that their legal documents confirming their right to live and work in the UK have been issued correctly.
Most employers only check the name, date of birth and nationality on the passport’s detail page of their foreign employees. If the details are correct then they store them away and carry on with business as usual.
We recently had a similar case; a migrant entered the UK on a Tier 2 Intra-Company Visa for 2 years, they then submitted an application to extend their leave which was successfully approved, however it seemed they did not worry about checking their Biometric Residence Permit (BRP) carefully.
Their employer carried out all the correct checks and asked to see the original Biometric Resident Permit card as soon as it came through. HR then took a photocopy, signed, dated, and safely stored a copy in the employee’s personnel file after making a note of their expiry.
Not long before the employee’s leave was due to expire the employer contacted us to assist with extending their leave in the UK. We were happy to assist and requested for copies of all the documents for this particular employee.
On receipt of the requested documents from the company and the employee we set out to process the application for extension and reviewing the documents. On review we noticed that the employee’s Biometric Residence Permit stated they had been granted leave to remain in the UK as a Tier 2 (General) migrant and the information we were sent was to extend the leave under the Tier 2 Intra-Company Transfer (Long Term) arrangements.
The Client Account Manager handling this extension looked into this further and contacted UK Visas and Immigration to resolve the situation, check if this was just a typing error and ensure there were to be no issues when the employee applies to extend their leave to remain in the United Kingdom.
UK Visas and Immigration replied in writing and requested copies of the employee’s Biometrics Residence Permit so they could confirm if the employee was granted the incorrect type of leave and advised that this would need to be rectified before an application for an extension is submitted.
We sent over a copy of all the details requested by UKVI to allow them to investigate. The UKVI came back to us and advised they noted this was an error on their part as the Certificate of Sponsorship was issued correctly. UKVI further confirmed that this was an error made by the caseworker and should not be held against the migrant when submitting an application for an extension, however we would need to contact Biometric Residence Permit Errors to confirm if a new Biometrics Residence Permit needs to be issued before the migrant submits an application to extend their leave in the UK.
On the advice provided we contacted BRP Error, provided them with the full details of what had happened and requested them to confirm the records they held on file for this particular migrant. BRP Error came back to us and confirmed that the leave had been granted incorrectly for the migrant and all their records showed that this person was in the UK under the Tier 2 (General) arrangements despite their Certificate of Sponsorship being issued correctly.
BRP Errors further confirmed that they could only make amendments to Biometrics Residence Permit’s where the information on the permit is at variance with that on Home Office records. In this case the information was the same and required the case work team’s expertise for a decision as they may need to refer to the original application or any other documentation submitted in support of the application.
Finally we wrote to UKVI again for them to investigate and resolve this at the earliest as we needed to submit the application using the Premium Service due to the employee’s extensive travel plans. Unfortunately our only method of correspondence with the Home Office was by post as they do not have a number they can be reached on.
Two weeks had passed since we identified and addressed the issue and we still had not heard anything back. We then decided to contact the Premium Service Centre directly and provided them with full details showing that the error was made on their end and the CoS and approval letter had been issued correctly but the Biometrics Residence Permit had the incorrect grant of leave.
The contact at the Premium Service Centre looked in to this case and advised that they could see that the error was on their part as the case had been set up incorrectly by the case worker who processed the application in 2012. We were advised to proceed with submitting the application for an extension without having the Biometrics Residence Permit rectified and they would process it as normal and make the corrections on their system.
To get to this stage it had taken 22 days and we never heard back from the original caseworkers to whom we wrote at UKVI.
We provided full representations and copies of all documents with the extension application to avoid any issues when the employee submits their application and can confirm that it was successfully approved with the correct grant of leave.
Conclusion
The moral of the story is: Ensure that as an employer you check and cross reference all details on your employee’s documents as it can avoid issues in the future, in particular where the person can apply for Indefinite Leave to Remain.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
