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Home Office Delay In Issuing BRP Gives Rise To Potential Claim In Damages

Posted by: Gherson Immigration

The right to work in the UK is a valuable asset that is nurtured and protected in British society. Not everyone is entitled to work in the UK, and unless you are a British national, there may be restrictions on your immigration status preventing you from doing so.

Over the years, the government has pursued policies aimed at discouraging illegal working, with its approach varying between moderate and more aggressive depending on the political and social climate at the time. It is believed that illegal working is the driving force behind illegal migration, and it is the most vulnerable members of society who suffer from the resulting exploitation. Any lack of control and adequate enforcement encourages unprincipled employers to continue using this illegal workforce for personal gain, as any dealings with illegal workers often involve undercutting wages, failing to ensure adequate working conditions and otherwise ignoring labour market safeguards. 

The government has tried hard to curb illegal migration. When the original framework for immigration law was introduced more than 40 years ago, a range of activities was criminalised, including entering the UK illegally and facilitating others to do so. Many years later, a liability was imposed on employers for hiring illegal workers. This gave the Home Office powers to issue fines to employers if they employed illegal workers or did not make the necessary checks before offering employment. Additionally, the government introduced a criminal offence of employing illegal workers which carried a fine or up to three years’ imprisonment. The determination to fight illegal migration culminated in the hostile environment policy, and saw a further criminal offence of illegal working being introduced which carried a fine or up to six months’ imprisonment. The same legislation saw the penalty for employing illegal workers increased to five years’ imprisonment.

An employer is not guilty of an offence of hiring illegal workers if they have carried out all the necessary checks and kept proper records of having done so. These are the “Right to Work checks”, and the employer may benefit from a “statutory excuse” if it later emerges that in fact the worker did not have the right to work.

The list of the documents required for a right to work check may vary depending on the status of a migrant, but the key documents for a non-EEA national is their current passport and Biometric Residence Permit (“BRP”), and for an EEA migrant their national passport. Note that the position regarding EEA nationals’ right to work checks will change in 2021 after the end of the transitional period following the UK’s departure from the EU.

Employers can alternatively complete a Right to Work check online. This is only available for those migrants who hold status under the EU Settlement Scheme or who have a BRP. The employer must first obtain the consent of the migrant to carry out the online right to work check. If the migrant does not provide consent, or the migrant does not have the correct document to carry out a Right to Work check, you will be required to complete the manual Right to Work Check, as stated above.

In the recent case of Husson v SSHD [2020] EWCA Civ 329, the Court of Appeal considered whether the Home Office may be liable in damages for its failure to issue a BRP to an individual over the course of two years. The appellant had a complicated immigration history, but the main issue in the case was whether the Home Office’s promise to issue him with a BRP was sufficient to justify judicial review proceedings with a view to claiming damages for breach of the appellant’s Article 8 ECHR rights.

The court held that the appellant was entitled to start a claim for judicial review as he was deprived of employment opportunities. He was unable to take up employment because of the Home Office’s persistent failure to issue him with a BRP, as every time he was required to prove his right to work in the UK he was unable to do so, and no employer could lawfully employ him without seeing his BRP first. The appeal was allowed, and the court held that the Home Office’s failure to act promptly on its promise gave rise to a claim for breach of the appellant’s Article 8 rights.

Gherson has extensive experience in dealing with Sponsor Licence compliance, Right to Work checks, judicial review procedures and human rights claims. If you have any questions in relation to any of these matters, please do not hesitate to contact us.

 

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2020

(Please note that this article is also available in Polish)

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