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Job offer and near expiry of Biometric Residence Permit

Sharon

| 0 Posts

24 May, 2018 18:26

Hi, we are about to offer a role to a midday supervisor but having reviewed her ID I notice that her permit will expire in October.  I assume she will be in the process of renewing this although there is no guarantee it will come through. 

Can I offer a permanent role knowing that the card is not far from its expiry and should I put something in the offer to highlight that continued employment is conditional on the employee renewing her Permit.    Any advice would be most welcome. Thank you!

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  • Elizabeth Divver

    | 0 Posts

    24 May, 2018 18:48

    I would offer a fixed term contract expiring on the day the permit runs out but extend the employment or offer permanent employment when she presents renewed documentation.

    In spite of the recent revelations of the deliberately created hostile environment which the government is stepping away from as fast as it can, I really wouldn't count on this paperwork coming through. In fact, if she isn't one of the Windrush generation, it may take even longer then usual as the focus is on getting that particular mess cleared up.
  • Sharon

    | 0 Posts

    24 May, 2018 20:47

    In reply to Elizabeth Divver:

    Thanks Elizabeth, really helpful advice as usual. Is it ok to let her know that we can only offer a FTC at this point as we are concerned about her permit renewal. We have 3 offers out and the other 2 will be permanent so I am just concerned that if she is only being offered a FTC I am saying the right thing. Don't want to be accused of discrimination. Thanks again.
  • Elizabeth Divver

    | 0 Posts

    24 May, 2018 23:30

    In reply to Sharon :

    You will be discriminating, but not for any unlawful reason. You will be discriminating on lawful and fair grounds, which is a good exercise of discretion.
  • Keith

    | 0 Posts

    25 May, 2018 00:07

    In reply to Sharon :

    You can offer her a permanent contract. If she renews her visa then all good. If it doesn’t get renewed then her contract ends as she is no longer allowed to be employed. Either way she will have no unfair dismissal protection.

    There are circumstances where it’s possible tobremain employed while applying.
  • Sarah Toms

    | 0 Posts

    30 May, 2018 16:29

    We are at the other end of this, in that we have a permanent employee who's residence permit expired on 23 May 2018. On checking we were able to give her 28 days grace providing we were confident she had applied to have this renewed. If this has not arrived on or before 20 June we will have to review her continued employment with us as, technically, she will be an illegal immigrant without any right to work here ! !
  • Robert James Munro

    | 0 Posts

    30 May, 2018 16:39

    In reply to Sarah Toms:

    Sarah, the 28 day grace period is no longer applicable. There is a 14 day grace period to enable the applicant to apply for a renewal but this is not a right and only valid if just cause outside the applicants control for the delay can be proven.

    As long as the application is made prior to the expiry then a statutory excuse exists until the application is determined.
  • Sarah Toms

    | 0 Posts

    30 May, 2018 16:51

    In reply to Robert James Munro:

    Hi Robert, when did this change? I spoke to them on 20 May.
    Thanks
    Sarah
  • Robert James Munro

    | 0 Posts

    30 May, 2018 16:55

    In reply to Sarah Toms:

    November 2016!
  • Nikki Baines

    | 0 Posts

    31 May, 2018 10:33

    In reply to Robert James Munro:

    Hi
    My understanding is that if (providing you obtain the employee's permission) you contact the Home Office and use their Employer Checking Service, they can confirm that an application has been correctly submitted and, whilst it is under consideration, they usually grant a 6 month extension which provides your statutory excuse.
    I have taken this approach on many occasions. The check takes 5 days to process so I usually start seeking their permission about a month before the current excuse expires.
    I have found this is a really efficient and helpful service and provides very clear advice!
  • Robert James Munro

    | 0 Posts

    31 May, 2018 10:41

    In reply to Nikki Baines:

    Absolutely - they are very efficient. Of course the statutory excuse is only valid if the application for renewal was made before the previous leave to remain had expired.
  • Nikki Baines

    | 0 Posts

    31 May, 2018 10:53

    In reply to Robert James Munro:

    Yes, the service is there to account for the potential delays in processing applications, so that individuals looking to extend their permission don't lose their right to work (or their jobs). I've actually had a situation where the application was submitted before the previous permission had expired but there was an error on the application and therefore it was rejected. In this case, the Home Office couldn't confirm an extension and so I had to dismiss while the application was submitted again. It was all very sad but I had no choice. Fortunately, we could re-engage once the application was approved :-)