Right to work

[Tiddler7]

I read, hardly ever post, please don't be nasty.

DH hasn't worked for last few years, I earn more so he was SAHD. It worked for us.

Recently we decided that DC is big enough, money is getting tight, time to go back to work. DH sent 100's of CVs, no reply. Went to register with an agency, all lovely, lots of work from September. Until he showed 2 passports. One expired with valid Permanent Residence, one valid with no visa. Sorry, we can't accept it. Ok, found another agency, no problem with 2 passports, worked for them for couple if weeks when got a phone call with interview offer. Interview followed by job offer. DH extatic. Today induction day, paperwork and passport. Well, 2 in his case. Sorry, Head Office will not accept it. DH nearly cried on the way home, as he loved everything about the job. He called Home Office to be told by 3 different people that all the employer needs to do is call them and ask to confirm his status (waiting for British Citizenship). And they can't really refuse as it will be denying him work. Called manager, she said they don't do it, but HO can call them! Uhm, no. They have more important things to do. He's been assured by HO 3 times today that it takes 2 mins, and they have line for employers especially to deal with it.

AIBU to cry out of anger that one phone call is too much for someone..?

AIBU to just hit tonight..?

I need a hug

I sympathise. This is because we are so crap at admin in this country and also because the Government can't be arsed to enforce anything so offloads it to employers (and landlords now).

The admin people at employers often don't know the law (or about the helplines) so they just take the route of least resistance.

Sorry - I know none of that helps your DH.

There is a 50 plus page from the HO on how to verify RTW documents with what is and isn't acceptable. Have a Google, check you meet requirements and then send to potential employer. It is an admin nightmare plus also often personal risk for the person verifying it, in my contract if the company get fined due to my not checking it's a gross misconduct.

Short term, can't you pay a small fee to get your visa transferred to the current passport?

I'll be in the same situation next year when my current passport expires but I've beeb told by HO that I can carry both old and new passports to prove my eligibility to be here.

I have the same situation as your DH and it's never a problem with agencies and employers. Work in financial services with tough vetting.
Plus even use the 2 passports coming through Customs and they not only have no issue they said don't go to the hassle of getting new visa in current passport.
Can he check with the Home Office and get their view as their word is the application of the law.
Problem with getting visa moved to new passport is you could lose passport for quite a few months. 🙁

HR person here who specialises in right to work/UK visa issues. Sorry to be the bearer of bad news, but permanent residence in an expired passport is no longer considered proof of right to work, which is probably why the employer won't accept it - it's a fairly hefty fine if they are audited by UK Visas and Immigration and are found to have employed someone without evidence of their right to work in the UK. The residence permit stamp has to be in a current passport or in the form of a current biometric residence permit.

Your husband needs to apply to have his residence permit switched onto a biometric residence permit (www.gov.uk/government/publications/application-to-transfer-visa-to-biometric-residence-permit-form-toc). Alternatively he can wait to receive his British citizenship, but he won't have evidence of his right to work in the UK until his citizenship is awarded, so calling to confirm he's made an application won't help - whoever he spoke to is talking balls about that (won't be the first time they have given incorrect advice!)

His new employer can do an employer verification check (www.gov.uk/employee-immigration-employment-status) to confirm he has a citizenship application in progress and can still work under the terms of the old residence permit, but as that in itself does not meet the criteria for proving right to work they may choose not to accept it as it puts them at risk.

Guidance on what's acceptable proof of right to work from an employer's perspective is online here: www.gov.uk/government/publications/acceptable-right-to-work-documents-an-employers-guide.

Employers are getting more vigilant about this (rightly so) as the penalties for being found in breach are becoming more and more financially crippling.

Once again, sorry for the bad news - the expired passport rule came into force a few years ago and has caused a lot of problems.

Just to update based on previous posters - a residence permit/visa in an expired passport coupled with a current passport is sufficient to prove your right to enter the UK, but does not constitute proof of right to work for an employer.

These rules have changed within the past few years, so people employed before the change came into effect are fine. However new employees must have their residence permit/visa in a current passport or on a current biometric residence permit for their employer to be able to use it as right to work.

Having your visa/permit in an expired passport doesn't mean you don't have the right to work, just that your employer cannot use it as statutory proof of your right to work, and therefore they become potentially liable for not having the required proof of right to work.

@pinotnoirismyjam

Just out of interest (of no personal significance at all), is an offence only committed by the employer if it turns out the person doesn't have a right to work? i.e. the offence is allowing the person to work illegally, and a defence against that is to have checked a specific set of documents.

Or is merely not checking the documents an offence in itself?

(I know this doesn't affect the OP, sorry for hijacking)

@golden

There is a potential civil penalty for not doing a correct right to work check - although UKVI don't specify if this is payable only if the individual you failed to check properly doesn't have the right to work, or payable just because you didn't do a correct check - of up to £20K.

It becomes a criminal penalty if they believe you knew that you were employing someone illegally.

Unfortunately a lot of the UKVI guidance around what does and doesn't constitute a penalty is a bit vague, which leads to some employers being hyper-vigilant to avoid being caught out.

I imagine they would come down quite harshly on someone just not bothering to check at all, as it would be seen to be disregarding the employer's responsibility, whereas an employer that tried to check properly but made a mistake might be treated more leniently on the grounds that it could be an honest mistake.

Some more info on the penalties is here: www.gov.uk/penalties-for-employing-illegal-workers.

Thank you for your replies.

CWG17
Small fine for transfering the visa is about £800, we just paid £1300 for naturalisation, so not in the position (he needs it within a week or so, so would have to apply in person).

pinot
that is so confusing! Why would they give them all clear to employ him and than penalise employer??? So literally they are pushing people to go on benefits. Where is the logic here?

Will go back to my wine now

£800!?!? Won't be doing that then. I was led to believe it was a small cost!

That's almost as much as a new visa. Why would you bother?

It shouldn't be £800 to transfer the visa. According to the guidance, it's £168 to transfer a visa/residence permit in an expired passport onto a biometric residence permit card - the application form is here: www.gov.uk/government/uploads/system/uploads/attachment_data/file/606338/TOC-04-17.pdf. It's called a transfer of conditions.

Does he have a biometric residence card? Or that letter that the home office sends when you get your spouse visa?

@Ttbb

My understanding of the issue is that he has the right to work in the UK in the form of a current residence permit stamp in an expired passport. Unfortunately a copy of a current residence permit in an expired passport is not valid proof of right to work for an employer to hold.

I'm assuming that whoever did the original right to work check on behalf of the employer incorrectly thought this was sufficient for their purposes, and someone more senior has picked up that this isn't correct. I had this problem a lot when I started with a new team who hadn't been adequately trained/given updates on changes to right to work, who thought that the old rules (i.e. right to work in an expired passport was acceptable proof for an employer) still stood.

Just to add for Tiddler7 - as an HR person, I wouldn't withdraw a job offer in these circumstances. I would just delay the start date until they either did transfer of conditions and got a biometric residence permit, or until they got their proof of naturalisation, subject to confirmation they had actually applied for naturalisation, of course.

I hope your DH has managed to come to some agreement with his new employer - there's no reason to rescind the offer if they are in a position to delay the start date.