Anyone used employee's expired passport & extended?

sm12 · Post by **sm12** » Wed May 17, 2017 7:04 pm

I approached a solicitor to confirm whether an an expired passport can be used to prove settlement. My employee who has just joined has her passport expiring this summer, so it was valid when it was presented last week to prove right to work (List A document - British Passport) but will expire while her employment continues. The general right to work guidance gives examples of old passports that are no longer valid for travel but can be used for ID checks.
https://www.gov.uk/government/uploads/s ... nts_v5.pdf

However, the solicitor said that I will not be able to use this passport which expires over the summer for the Tier 1 Entrepreneur ILR/second renewal. He said that it must be valid at the time of the ILR/extension application.

He said that the checks are different for Tier 1 Entrepreneur and gave the example that birth certificates with National Insurance number proof can be used to prove settled status (List A from right to work guide). However, the Tier 1 Entrepreneur guide says that people born on/after 1 Jan 1983 have to provide proof of parents' settled status, like their passport/ILR proof.

He is from a top law firm so this has me worried. My employee said that she does not intend to get her passport renewed in any hurry as she has no travel plans.

Did anyone here manage to extend or get ILR despite using an expired passport? Apologies for bringing this up again, but this does have me worried, especially as another employee (who was working with us earlier and is no longer employed by us) provided a passport that was valid when she started employment but expired last month.

vinny · Post by **vinny** » Wed May 17, 2017 10:06 pm

If you had previously properly checked valid List A documents, then there's no requirement for you to recheck. Moreover, for a British/EEA passport, it doesn't even have to be current at the time of the initial check.

sm12 · Post by **sm12** » Wed May 17, 2017 10:18 pm

vinny wrote:If you had previously properly checked valid List A documents, then there's no requirement for you to recheck. Moreover, for a British passport, it doesn't even have to be current at the time of the initial check.

Hi Vinny

Thank you for your message.
I did show him the list but he said that for tier 1 entrepreneur, you need to show that the passport was current throughout employment, just like you have to provide extra information when providing birth certificates, even though list A does not say anything about employees born after 1st January 1983.
This is why I'm concerned, as he said that one must prove beyond a doubt that the employee was settled throughout the period of employment.

jafersadeq · Post by **jafersadeq** » Wed May 17, 2017 10:27 pm

Check:
https://www.gov.uk/legal-right-work-uk
There are no requirements in this link about passport expiry.
The validity meaning in the link you mentioned is " Does the passport false or not" it is not about expiry date,

vinny · Post by **vinny** » Wed May 17, 2017 10:39 pm

I can understand the extra parent's information requirement regarding the birth certificates for people born from Jan 1983.

However, can he point to the specific immigration rules or guidance that implies that the normal statutory excuse for employers is insufficient for a Tier 1 (Entrepreneur) Employer?

zimba · Post by **zimba** » Wed May 17, 2017 10:48 pm

The passport expiry does not mean someone's settled status is suddenly GONE. It is not a VISA you know.
It is nonsensical that an expired passport copy of an already proved settled person cannot be used. The advice given by solicitor makes no sense

I do not understand something. If you trust a solicitor's advice fully then why bother to come here and if not, then why bother paying him ton of cash for advice. That is the real conundrum

sm12 · Post by **sm12** » Thu May 18, 2017 2:17 pm

Thank you Zimba and Vinny.

I usually go by the advice on this forum but just thought I'd confirm with an immigration solicitor.

vinny wrote:I can understand the extra parent's information requirement regarding the birth certificates for people born from Jan 1983.

However, can he point to the specific immigration rules or guidance that implies that the normal statutory excuse for employers is insufficient for a Tier 1 (Entrepreneur) Employer?

I will meet him again soon to ask him this again in more detail.

jafersadeq wrote:Check:
https://www.gov.uk/legal-right-work-uk
There are no requirements in this link about passport expiry.
The validity meaning in the link you mentioned is " Does the passport false or not" it is not about expiry date,

Hi Jafer, Thank you for your input. But I think in your message in response to my PM you had mentioned that the passport should be valid throughout employment. Would it be possible to share the link for that?

marcnath · Post by **marcnath** » Thu May 18, 2017 3:36 pm

Agree with Zimba that your solicitor advice makes no sense.

On a practical level, I had an employee whose passport expired in 2009. I used that as evidence successfully for both my extension as well as ILR.

sm12 · Post by **sm12** » Fri May 19, 2017 10:55 pm

Thank you for sharing your experience, Marcnath.

I met the solicitor again this evening and he stuck with what he originally said. According to him, if the passport has not been renewed, it will raise questions in the HO's minds regarding whether the person continued to be an EEA/British citizen, and that the onus is on the applicant to prove that the person continued to maintain his settled status. He said that the caseworker might exercise discretion but is not obliged to, and that I should not take a risk by continuing to employ someone who is not willing to renew the passport.

vinny · Post by **vinny** » Fri May 19, 2017 11:15 pm

vinny wrote:However, can he point to the specific immigration rules or guidance that implies that the normal statutory excuse for employers is insufficient for a Tier 1 (Entrepreneur) Employer?

sm12 · Post by **sm12** » Mon May 22, 2017 7:10 pm

vinny wrote:
vinny wrote:However, can he point to the specific immigration rules or guidance that implies that the normal statutory excuse for employers is insufficient for a Tier 1 (Entrepreneur) Employer?

Hi Vinny

Yes, I did bring that up, but he reiterated that to prove someone was settled throughout the employment, the applicant must do more than just meet the basic requirements to establish a statutory excuse. He said that it is entirely possible to acquire the citizenship of another country (e.g. through ancestry) while living in the UK, and therefore an expired passport will only cover me upto the date of expiry. He said that the case worker may apply the rule relating to evidential flexibility at his discretion but, in his words, "an expired passport is pretty much worthless for your visa application".

vinny · Post by **vinny** » Mon May 22, 2017 9:45 pm

sm12 wrote:Yes, I did bring that up, but he reiterated that to prove someone was settled throughout the employment, the applicant must do more than just meet the basic requirements to establish a statutory excuse.

My unanswered question was that can he point to where they wrote that an entrepreneur employer applicant must do more than just meet the basic requirements to establish a statutory excuse for a settled employee?

Syed, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 1059 (07 September 2011) wrote:It is thus in the nature of the Immigration Rules that they include no over-arching implicit purposes. Their only purpose is to articulate the Secretary of State's specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive. The whole of their meaning is, so to speak, worn on their sleeve...

sm12 · Post by **sm12** » Mon May 22, 2017 10:03 pm

vinny wrote:
sm12 wrote:Yes, I did bring that up, but he reiterated that to prove someone was settled throughout the employment, the applicant must do more than just meet the basic requirements to establish a statutory excuse.
My unanswered question was that can he point to where they wrote that an entrepreneur applicant must do more than just meet the basic requirements to establish a statutory excuse for a settled employee?

Syed, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 1059 (07 September 2011) wrote:It is thus in the nature of the Immigration Rules that they include no over-arching implicit purposes. Their only purpose is to articulate the Secretary of State's specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive. The whole of their meaning is, so to speak, worn on their sleeve...

Yes, when I asked him where the guidance stated what he was saying, he again gave the example that the right to work guidance only asks for a birth certificate and NI document to prove right to work, but the entrepreneur guidance asks for more information for people born after 1983. He said that just like with the birth certificate, where you must provide additional documents for the Tier 1 extension/ILR than would be needed as per the right to work guidance, you have to apply with a current passport copy for employees, and that if the employee is an ex-employee, then apply with a passport copy covering the entire period of employment.

vinny · Post by **vinny** » Mon May 22, 2017 11:13 pm

Yes. I agree the Rules and Guidance now require more documents than the statutory excuse, relating to a settled employee's birth certificate. I expect they will amend the statutory excuse in due course.

sm12 wrote:...you have to apply with a current passport copy for employees, and that if the employee is an ex-employee, then apply with a passport copy covering the entire period of employment.

However, a British passport is not a birth certificate. Where do they state that a settled employee's British passport must be current?

zimba · Post by **zimba** » Tue May 23, 2017 12:16 am

Yes, when I asked him where the guidance stated what he was saying, he again gave the example that the right to work guidance only asks for a birth certificate and NI document to prove right to work, but the entrepreneur guidance asks for more information for people born after 1983.

NO it does not ! This only is relevant if the applicant chooses to send the birth certificate instead of a passport copy.

sm12 · Post by **sm12** » Tue May 23, 2017 12:46 pm

vinny wrote:Yes. I agree the Rules and Guidance now require more documents than the statutory excuse, relating to a settled employee's birth certificate. I expect they will amend the statutory excuse in due course.

sm12 wrote:...you have to apply with a current passport copy for employees, and that if the employee is an ex-employee, then apply with a passport copy covering the entire period of employment.
However, a British passport is not a birth certificate. Where do they state that a settled employee's British passport must be current?

Hi Vinny

Yes, I did ask him, and he said that the passport had to be current. It doesn't say so on the guidance, but he said that this was required as per his experience. He is from a leading law firm, otherwise I wouldn't have given it so much though.

sm12 · Post by **sm12** » Tue May 23, 2017 12:51 pm

zimba88 wrote:
Yes, when I asked him where the guidance stated what he was saying, he again gave the example that the right to work guidance only asks for a birth certificate and NI document to prove right to work, but the entrepreneur guidance asks for more information for people born after 1983.
NO it does not ! This only is relevant if the applicant chooses to send the birth certificate instead of a passport copy.

Hi Zimba

Yes, he said that just like one needs to provide additional information when providing birth certificates of people born after 1983, similarly when providing passports, one must provide a current passport copy.

vinny · Post by **vinny** » Tue May 23, 2017 1:17 pm

The extra requirements related to a Birth certificate are in both the rules nor guidance. But where is there a requirement that an employee's British passport must be current?

sm12 wrote:Yes, I did ask him, and he said that the passport had to be current. It doesn't say so on the guidance, but he said that this was required as per his experience. He is from a leading law firm, otherwise I wouldn't have given it so much though.

He should have raised these same questions with the UKVI. If they also cannot point to any specific rules nor guidance nor other legalisation implying the necessity of an employee's British passport being current, then such a requirement may be beyond the scope of the Immigration rules and therefore unlawful.

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Anyone used employee's expired passport & extended?

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