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Biometric Residence Cards and Third Country Nationals

12th March 2021 By Ciera McCartney

When applying to the European Settlement Scheme from within the UK, most third country nationals (i.e., non-Europeans) will already hold a Biometric Residence Card issued to them because of their right to reside in the United Kingdom under European law. This document proving their status, the Biometric Residence Card, will have been issued under the EEA Regulations.

Third country nationals who have not previously held a Biometric Residence Card issued under the EEA Regulations will be invited to attend an appointment to provide their biometric data with the Home Office provider Sopra Steria. If the application for pre-settled or settled status is granted, the individual will be issued with a Biometric Residence Card under the European Settlement Scheme.

However, those third country nationals who apply to the European Settlement Scheme and already hold a valid Biometric Residence Card issued under the EEA Regulations are currently not issued with an updated Biometric Residence Card.

For example, a third country national who submits an application with two weeks left until their card issued under the EEA Regulations expires will not receive a new Biometric Residence Card under the European Settlement Scheme. The Home Office has confirmed this is because their card is still valid at the time the application was made. They have also confirmed this is the case even if the EEA card has expired by the date of the decision. An individual in this scenario will therefore also not be issued with a new card automatically under the European Settlement Scheme.

While third country nationals have their status recorded digitally on the European Settlement Scheme online portal accessible through Gov.UK, if they do wish to obtain another Biometric Residence Card to reflect their new immigration status, they must make a further application and re-submit their biometric data. Third country nationals are likely to need to do this in practice, given that their status is not linked to their passport, as is the case for European nationals.

Yet unfortunately the decision letter currently sent to applicants who have successfully obtained status is silent on this point and gives no guidance or a link to the appropriate page on the Home Office website where one can apply to update their Biometric Residence Card under the EU Settlement Scheme.

This lack of clarity raises practical issues. While we understand the Home Office plans to move the immigration status of all migrants to a digital only status, this has not yet happened, meaning third country nationals still need to evidence their status to carriers and border staff through a Biometric Residence Card when returning to the United Kingdom from abroad. Unaware that this is the case, we have heard reports of confusion by airline staff and border personnel, difficulty at the border and in several cases people left stranded outside the UK.

Third country nationals granted status under the European Settlement Scheme therefore do require a valid biometric card reflecting their current immigration status. Yet, if they fall into one of the scenarios outlined above, the process to update to a new card is unclear, costly (there is a Home Office fee of £75.20) and lengthy (the Home Office state these applications can take up to six months to be decided).

Instead, we believe all third country nationals should be given Biometric Residence Cards automatically up until the point that the Home Office can rely on digital immigration statuses for all migrants. These cards should be issued at the time the applicant is granted their new status, solving the practical difficulties faced by those third country nationals already holding at the date of application a valid Biometric Residence Card issued under the EEA Regulations.

If you require immigration advice in relation to the issues above, we can help.  Please contact us on 020 7401 6887 or by email at contact@gryklaw.com

Filed Under: Brexit, EU, News and Updates

The UK’s new points-based immigration system

5th March 2020 By Ciera McCartney

On 19 February 2020 the Government published a policy paper announcing a new ‘point-based system’ for economic migration to the UK after Brexit, set to take effect from 1 January 2021.

With no future route announced for low-skilled or temporary workers, apart from seasonal workers and the youth mobility scheme, the focus of the new proposals is on skilled workers.

Skilled Workers

This new system will give a small amount of flexibility to sponsored work visas (currently what we know as Tier 2). It will require an applicant to gain a total of 70 points to be eligible to apply, with some characteristics tradeable and others not.

The three mandatory, non-tradeable requirements are those already required under the current Tier 2 system – a job offer from an approved employer sponsor, English language skills and a minimum skill level (although the skill level required will be reduced from level 6 (degree level) to level 3 (A-level). If an applicant meets these three requirements, they receive 50 points. However, the idea of ‘points’ here serves no real purpose, given that if the applicant does not meet these requirements, they will be unable to make up for this by gaining points for other attributes – rather, they will simply be ineligible to apply.

Where the flexibility, albeit minor, has been introduced is in the salary level required. While a minimum salary threshold will still exist, following the Migration Advisory Committee’s recommendation, the threshold will be reduced to £25,600 (it is currently set at £30,000). If a worker meets the three mandatory requirements and earns a salary of £25,600 or above, they will be awarded the required 70 points.

However, £25,600 will not be the absolute minimum. Instead, workers will still be able to meet the requirements for a visa while earning a lower salary if their job is on the shortage occupation list or if they are highly qualified.

People working in a job on the shortage occupation list or who have a PhD in science, technology, engineering or mathematics (STEM) will only need a minimum salary of £20,480. Being on this salary will not give the applicant any points, but if their job is on this list or they have a PhD in STEM, they will earn 20 points, allowing applicants on a lower salary to reach the required 70 points. Alternatively, someone who holds a PhD outside the STEM subjects, but the PhD is nevertheless ‘relevant to the job’, will be eligible to apply if they earn a salary of £23,040 or above. An applicant earning a salary between £23,040 and £25,599 will be awarded 10 points, which when combined with a relevant PhD providing another 10, will allow an applicant to meet the 70 points necessary to apply.

Despite these changes, this ‘point based system’ still closely resembles the system we currently have under Tier 2, and the three mandatory requirements prevent the flexible approach which is the trademark of other point systems, such as that found in Australia. Ultimately, you will still need a job to come to the UK, unless you are highly skilled and have been endorsed by the relevant and competent body (under what has now been dubbed the Global Talent route).

Other Changes

One of the most important changes, which is only briefly mentioned in the Government’s policy statement, is the removal of the resident labour market test. This test currently requires employers to advertise any job not on the shortage occupation list to ensure there are no suitable workers already living permanently in the UK. Combined with a suspension of the cap on the number of people who can come to the UK on the skilled worker route, these two changes will allow employers to offer as many jobs as they wish to applicants outside the UK, granted the person is able to meet the 70 points as explained above.

This is significant for employers, given that as of next year, both EEA citizens and non-EEA citizens will come under this new points-based system and employers will no longer be able to rely on the free movement of EEA workers. However, it also creates new challenges. While organisations currently have to be an approved sponsor to hire non-EEA citizens who do not have permission to work via another type of visa, from January 2021 anyone who wants to employ either EEA citizens or non-EEA citizens who are new to the UK will need a sponsorship licence.

Currently just over 32,000 organisations are registered as holding sponsor licences with the Home Office, and most of these are large companies. As the current process to become an approved sponsor is so complicated and expensive (see here for a full breakdown of fees), many SMEs take a decision not to register. However, in 2019, 1.4 million small and medium enterprises (SMEs) in the UK had employees, many of whom are likely to be employing Europeans and who will wish to continue to do so in the future. This means that in the near future, many more businesses will need to go through the process to become an approved sponsor.

While the policy paper states that the Government ‘recognise[s] that these proposals represent significant change for employers in the UK’, they fail to provide any further details on exactly how this will affect employers and what the costs will be. This is particularly concerning for the SMEs who currently rely on a European workforce and who will shortly find themselves required to participate in this new system.

More information on the licensing scheme is expected this autumn. In the meantime, if you require advice as either a worker, or a business wishing to become a sponsor, please contact us on contact@gryklaw.com or on +44 20 7401 6887.

Filed Under: Uncategorised


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wesleygrykllp Wesley Gryk LLP @wesleygrykllp ·
26 Jul

Refugee Legal Support (@RLSAthens) have produced this moving magazine, 'Family Reunion: Torn Apart', putting human faces to the difficulty many refugees face seeking asylum and family reunion in Europe and the UK: https://issuu.com/kayys/docs/family-reunion-torn-apart?fr=sMTQzYTM3NDg1ODA

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rainbowmigrants Rainbow Migration @rainbowmigrants ·
20 Jul

Our monthly partnership session on Saturday was a great success! We are grateful to pro bono lawyers Barry O'Leary @WesleyGrykLLP and Arona Sarwar @Arona_StJames who gave advice to our #LGBTQI+ service users.

Next session: Saturday August 20
Details➡️https://bit.ly/3om91ow

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wesleygrykllp Wesley Gryk LLP @wesleygrykllp ·
7 Jul

For Pride month, the US Presidential Scholars Foundation & Alumni Association published an essay by our founder, Wesley Gryk (@GrykUnplugged), '50+ Years A Gay Man: A Personal Life in A Historical Context'.

See our blog: https://www.gryklaw.com/50-years-a-gay-man-a-personal-life-in-a-historical-context-by-wesley-gryk/

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grykunplugged WesleyGrykUnplugged @grykunplugged ·
27 Jun

To mark Pride Month, the U.S. Presidential Scholars Foundation (PSF) published today in The Medallion, their monthly newsletter, excerpts from - and a link to - an essay I’ve written, 50+ Years a Gay Man: A Personal Life in a Historical Context. https://mailchi.mp/presidentialscholars/june2022.

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wesleygrykllp Wesley Gryk LLP @wesleygrykllp ·
4 Jul

We are so pleased today to have submitted Trent’s application to register as a BOTC and British citizen following recent changes to the law.

Well done to the @BOTCCAMPAIGN for their work in highlighting the historic injustice for children of BOTC parents!

Home Office @ukhomeoffice

We've launched new routes to nationality for those affected by historical anomalies, including for British Overseas Territories citizens.

This will help people like Trent, who is now able to apply for both British overseas territories citizenship & British citizenship.

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