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Does anyone know the source of the law (chapters and verses) which imposes the legal requirement for return of the BRP and the power to impose the £1,000 fine?

Forest2thirds wrote: ↑

Tue Feb 20, 2018 1:03 pm

Does anyone know the source of the law (chapters and verses) which imposes the legal requirement for return of the BRP and the power to impose the £1,000 fine?

I guess it is similar to returning old driving license after getting new one in the post. Rarely enforced, but why risk it? BRP/ILR is invalid for travel after obtaining the certificate of naturalisation.

ariskar wrote: ↑

Tue Feb 20, 2018 2:14 pm

why risk it? BRP/ILR is invalid for travel after obtaining the certificate of naturalisation.

True, but there are other reasons to hold on to the BRP. For instance, children born in the UK while a parent held ILR derive their British citizenship automatically on that basis. But they could face issues at passport renewal time if required to prove that their parents held ILR at the time of their birth. The Home Office periodically deletes information in accordance with the Data Protection Act and hence it would be up to the individual and their parent to prove that the parent held ILR.

Forest2thirds wrote: ↑

Tue Feb 20, 2018 1:03 pm

Does anyone know the source of the law (chapters and verses) which imposes the legal requirement for return of the BRP and the power to impose the £1,000 fine?

Not absolutely certain, but likely Section 7(F) of the British Nationality (General) Regulations 2003, as inserted by the British Nationality (General) (Amendment) Regulations 2015.

Destruction of biometric information
7F.—(1) The Secretary of State must take all reasonable steps to ensure that biometric information held by the Secretary of State by virtue of these Regulations, including any copies, is destroyed if the Secretary of State—

(a)no longer thinks that it is necessary to retain the information for use as mentioned in regulation 7E(1); or
(b)subject to the exception in paragraph (2), is satisfied that the person to whom the information relates is a British citizen, or a Commonwealth citizen who has a right of abode in the United Kingdom as a result of section 2(1)(b) of the Immigration Act 1971.

(2) The exception is that photographs of a person who is registered or naturalised as a British citizen may be retained until the person is issued with a United Kingdom passport describing the person as a British citizen.

The BRP, like most identity documents issued by a government, is the property of the government issuing it (for instance,a US passport is the property of the US government, not the person named on the passport) and they can ask for it back.

As the SSHD is required to destroy all copies of the biometric data when they are satisfied that the person is a British citizen, it stands to reason that it can ask for its property (the BRP, which holds biometric data) back to destroy it.

The British Nationality (General) (Amendment) Regulations 2015 wrote:Use and retention of biometric information

7E.—(1) Biometric information provided in accordance with these Regulations may be retained only if the Secretary of State thinks that it is necessary to retain it for use in connection with—

(a)the exercise of a function by virtue of the Immigration Acts; or
(b)the exercise of a function in relation to nationality.

Would the exercise of a function in relation to child’s nationality under Section 1(1)(b) apply?

1Acquisition by birth or adoption

(1)A person born in the United Kingdom after commencement shall be a British citizen if at the time of the birth his father or mother is—
(a)a British citizen; or
(b)settled in the United Kingdom.

vinny wrote: ↑

Tue Feb 20, 2018 11:41 pm

The British Nationality (General) (Amendment) Regulations 2015 wrote:Use and retention of biometric information

7E.—(1) Biometric information provided in accordance with these Regulations may be retained only if the Secretary of State thinks that it is necessary to retain it for use in connection with—
(a)the exercise of a function by virtue of the Immigration Acts; or
(b)the exercise of a function in relation to nationality.

Would the exercise of a function in relation to child’s nationality under Section 1(1)(b) apply?

1Acquisition by birth or adoption
(1)A person born in the United Kingdom after commencement shall be a British citizen if at the time of the birth his father or mother is—
(a)a British citizen; or
(b)settled in the United Kingdom.

Interesting. I had not thought of that angle.

The catch is of course that the SSHD/Home Office seems to have to agree to this (very commonsensical) interpretation. How does one get such agreement?

By quoting HMPO’s requirements of original documents?

What documents to send with your application
...
proof that your child has British nationality (for example a British registration certificate, parent’s passport details or parent’s birth certificates)

You must send original documents or official copies of certificates. Photocopies aren’t accepted, even ‘certified copies’.

I think I may have got the answer:

The Immigration (Biometric Registration) Regulations 2008 No. 3048

Regulation 16.—(1) The Secretary of State may require the surrender of a biometric immigration document as soon as reasonably practicable if he thinks that —

...
(e) the holder’s leave to remain is to be varied, cancelled or invalidated, or is to lapse;
...
(g) the document has ceased to have effect under regulation 13(3) or has been cancelled under regulation 17; or ...

(2) Where a person is required to surrender the biometric immigration document under paragraph (1), the person must comply with the requirement.

Regulation 23(3) Where any person ... fails to comply with a requirement of these Regulations, the Secretary of State must consider giving a notice under section 9 of the UK Borders Act 2007.

Section 9 of UK Borders Act 2007

(1) The Secretary of State may by notice require a person to pay a penalty for failing to comply with a requirement of regulations under section 5(1).

(2) The notice must—
(a) specify the amount of the penalty,
(b) specify a date before which the penalty must be paid to the Secretary of State,
(c) specify methods by which the penalty may be paid,
(d) explain the grounds on which the Secretary of State thinks the person has failed to comply with a requirement of the regulations, and
(e) explain the effect of sections 10 to 12.

(3) The amount specified under subsection (2)(a) may not exceed £1,000.

(4) ...

I also stumbled upon this:

UK Borders Act 2007: Code of Practice about the sanctions for non-compliance with the biometric registration regulations March 2015
https://www.gov.uk/government/uploads/s ... h_2015.pdf

It says:

20. If the Secretary of State is satisfied that a person has failed without a reasonable excuse
to comply with a requirement of the regulations the Secretary of State may issue that person with a warning letter.

21. The warning letter will set out the reasons why the Secretary of State considers the person
has not complied with the requirements of the regulations and what action may be taken,
and will outline how the person may avoid a sanction being imposed provided they:
• respond within the “warning period”, which is 10 working days beginning on the day the letter is served, which is:
- either the date it is given to the person by an officer acting on behalf of the Secretary of State; or
- two days following the post date of the letter; or
- the email date if the warning letter is issued by email; and
• provide an acceptable explanation
- as to why they were unable to comply and demonstrate that compliance will take place as soon as is practically possible; or
- that allows the Secretary of State to put into place special arrangements to enable the person to comply; or
- satisfactory evidence that they cannot comply.

22. The Secretary of State will not proceed to impose a sanction until the warning period
has ended.

My question: does it mean that as a matter of practice, the Home Office will not give a fine for failure to return a BRP before they have issued a warning notice and the 10 working days' "warning period" has expired?

Perhaps to paraphrase my question: has anyone received such warning notice after failing to return the BRP or been issued a fine without any advance warning?

I have returned the BRP albeit out of time - so would like to know if it would be possible to be fined now for having returned it late.

Forest2thirds wrote: ↑

Thu Feb 22, 2018 4:54 pm

Perhaps to paraphrase my question: has anyone received such warning notice after failing to return the BRP or been issued a fine without any advance warning?

None have been reported by any of the forum members.

Thanks CR001.

Forest2thirds wrote: ↑

Thu Feb 22, 2018 8:38 pm

Thanks CR001.

Considering the recent Windrush scandal. Is there reason to not return it?