LawFlash

Immigration Update on Employees Entering the UK Through Egates and Right-to-Work Checks

August 16, 2019

As the use of automated epassport gates has been expanded for nationals of several countries, UK employers should be aware of recent immigration developments regarding employees entering the United Kingdom through these points of entry.

Epassport Gates

Since 20 May 2019, nationals from Australia, Canada, Japan, New Zealand, Singapore, South Korea, and the United States have been eligible to use automated epassport gates (egates) at certain ports to enter the United Kingdom.

Although the expansion of the egates scheme to these nationalities has helped reduce waiting times at immigration control, the following individuals should not use the egates:

  • Persons with Tier 5 (Temporary Worker – Creative and Sporting) certificates of sponsorship valid for up to three months who do not have visas in their passports
  • Permitted paid engagements visitors
  • Short-term students who do not have visas
  • Persons joining EEA national family members in the United Kingdom

Right-to-Work Checks

On 6 August, the Home Office issued new guidance to set out additional documents required for employees who enter the United Kingdom using the egates.

In most cases, employees passing through immigration control will have their passports stamped by an immigration officer, in the form of a wet ink stamp. Employers can then check the date of entry of an employee by looking at the entry stamp on their UK visa.

Employees entering via egates do not, however, receive an entry stamp in their passports.

If the employee does not have an entry stamp in their passport, the employer must still check the date of entry by obtaining other evidence. The evidence can include, but is not limited to, travel tickets or a boarding pass (in paper or electronic form).

A record of the employee’s date of entry must then be noted on their file. The Home Office guidance states that a note of the date of entry must be made. The evidence of this date does not need to be retained. However, it is recommended that employers retain the evidence in the event of a Home Office compliance visit.

Entering the UK via Ireland

Employees who hold a valid visa and enter the United Kingdom through Ireland may not receive an entry stamp. In this case, employees must provide their employer with supporting evidence confirming their date of entry to the United Kingdom (as explained above).

Tier 5 Creative and Sporting visa

Individuals sponsored under Tier 5 (Creative and Sporting) for three months or less, who would otherwise be eligible to enter the United Kingdom via the egates, must obtain an entry stamp from the immigration officer.

Individuals who are issued a Tier 5 (Creative and Sporting) Certificate of Sponsorship who enter the United Kingdom through the egates will not be required to see an immigration officer (this means their certificate will not be activated) and they will not have permission to work in the United Kingdom.

If the individual will be entering the United Kingdom via Ireland, they must apply for leave to enter before arriving in the United Kingdom by using the “remote clearance process.” This can be done by the individual or the approved sponsor completing an electronic form here and emailing it to Border Force at least 72 hours prior to the individual’s arrival. If Border Force grants the individual leave to enter the United Kingdom, the form will be endorsed and returned. The individual’s passport will not be stamped on arrival. The individual should retain a copy of the endorsed form at all times alongside their passport as evidence of their immigration permission to enter and stay in the United Kingdom.

Sponsor Duties

Tier 2 and Tier 5 sponsors are under an obligation to check the date on which a migrant entered the United Kingdom to ensure that the migrant entered during the validity period of their Tier 2 or Tier 5 clearance and have obtained the appropriate permission to work. Sponsored employees cannot work in the United Kingdom before the “valid from” date on their visa. They should also enter the United Kingdom before the “valid until” date. The total validity normally lasts for 30 days from the date the visa is granted.

If a migrant enters the United Kingdom before the “valid from” date on their visa, they will likely have been admitted as a visitor and will need to seek re-entry to the United Kingdom within the validity of their visa.

Sponsors are required to keep a copy of the sponsored employee’s Biometric Residence Permit (BRP). The employee’s BRP will confirm the terms and duration of their longer-term sponsorship. The employee must collect their BRP before their visa expires, and usually within 10 days of their arrival in the United Kingdom.

Document Retention Updates

The Home Office provides detailed guidance for sponsors on which documents must be kept by sponsors to comply with their sponsor obligations. This can be found within Appendix D: keeping documents guidance for sponsors – version 8/19.

As a reminder, all documents which form part of a sponsor licence application must be kept for the duration of the sponsor licence (including any sponsor licence extensions).

CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

London
Nick Hobson
Jennifer Connolly
Yvette Allen