BRP cards, eVisas and Right to Work checks: eVisa creation open to all BRP holders from 6 August 2024

As most employers will be aware, for many years the latest expiry date on a Biometric Residence Permit (BRP) card has (confusingly) been 31 December 2024, even if the visa status of the card holder expires after that date.

The reason for this expiry date on BRP cards is that UK Visas and Immigration (UKVI) has been developing a digital immigration system to replace all physical documents and BRP cards will no longer be valid after the end of December. Instead, every visa holder will have their status held digitally – as an eVisa.

What is an eVisa?

An eVisa is an online record of immigration status and the conditions of the individual’s permission to enter or stay in the UK.

How has UKVI been rolling out the eVisa system so far?

Before 6 August 2024 UKVI were contacting BRP holders individually by email to confirm they were able to create a UKVI account and eVisa. This has been problematic (to say the least) as:

• UKVI sent the email to the address provided in the previous visa application.
• That email address very often belonged to the legal rep who acted in respect of the previous visa application.
• The UKVI email did not state the name of the individual the email related to, so legal reps had no idea which of their clients were being invited to create their UKVI account and eVisa

This system has created significant uncertainty among BRP holders as to whether they had been selected by the UKVI to create their UKVI account and eVisa or were still to be contacted.

The 6 August 2024 update on creating a UKVI account and eVisa

The UKVI guidance has been updated to say:

“If you have a biometric residence permit (BRP) that expires on 31 December 2024, you can now create a UKVI account and access your eVisa. You should do this before the expiry date of your BRP.”

Importance for BRP holders

• Before the 6 August 2024 update a BRP holder had to wait to receive an email from UKVI inviting them to create their account and eVisa.
• From 6 August 2024 BRP holders do not need to have received their email and can create their UKVI account and eVisa via :https://www.gov.uk/guidance/online-immigration-status-evisa

Importance for Employers – RIGHT TO WORK CHECKS – “share codes” for all!

Employers will know that right-to-work checks can be complicated, especially when an employee or new candidate’s visa has expired, but they have applied in-time to extend it, and the UKVI is in the process of making a decision in respect of the new visa application.

Before the eVisa

For employees or new candidates who had made an “in-time” visa application, which was outstanding with UKVI for decision and their previous status and BRP had expired, to establish a Right to Work the employer had to apply to the Employer Checking Service and obtain a six-month Positive Verification Notice.

Applying to the Employer Checking Service required the employer to:

• obtain details from the employee of the submitted “in-time” application to extend – the unique application number (UAN) of their outstanding application etc.
• submit details of the outstanding visa application via the Employer Checking Service and wait for a response – normally five days or so.
• continue to obtain Positive Verification Notices until the employee had a new visa (and BRP card) and could provide a “share code” to conduct the normal online Right to Work check and view the results in “real time”.

Employee has eVisa

If an employee has created their UKVI account and has an eVisa, even if their previous visa has expired, if they have an outstanding application, they will be able to provide a “share code” to their employer.

This means EMPLOYERS can use the normal online Right to Work check and obtain instant “real time” proof of status:

• the result will show permission to work for six months if the visa application or appeal etc is outstanding for decision.
• the employer will continue to use the normal online check every six months to continue to establish their employee’s Right to Work.

Why is it called an eVisa if the individual maybe has no visa?

Yes, this is a little confusing, and in summary it is a digitalisation of status.

Under the old system when a BRP holder had no UKVI account, the BRP card was the only “vehicle” to obtain a “share code” to provide to an employer to carry out a digital Right to Work check. But the digital status was only available for as long as the BRP was valid. When the visa and BRP card expired the Employer Checking Service had to be used and the UKVI had to track internally that an “in-time” application had been submitted. When they had identified an outstanding “in-time” application they then issued a Positive Verification Notice – thus the approximate 5 day turnaround.

If the employee has created their UKVI account and eVisa, any further visa application is automatically linked to this account. The consequence is UKVI has the outstanding application already linked digitally and a “share code” can be obtained by the employee to provide to the employer and the normal online Right to Work check conducted.

At the time of writing the UKVI’s “Employer’s guide to right to work checks” reflects the confusing system for carrying out checks on outstanding applications, depending on whether the employee has an eVisa or not:

“The Home Office online service now supports a range of individuals, who have outstanding, in- time applications for permission to stay in the UK. Where an individual advises you that they have an outstanding, in-time application, and they are an eVisa holder, you should ask them to provide you with a share code. Once in receipt of the share code, you can use the online service to carry out the right to work check as set out in this guidance.

In such circumstances, the online service will provide confirmation of the individual’s right to work and will provide you with a statutory excuse for a period of six months. This is the standard duration when right to work checks are conducted on individuals who have an outstanding, in- time immigration application. Upon any subsequent application to renew the right to work, you must carry out a follow-up check.

Some users may not be supported by the online service at this time as work continues to move to digital by default. In circumstances where the individual is unable to provide you with a share code, yet they have an outstanding, in-time application, please contact the ECS for verification of this.”

Steps Employers should take:

The 6 August 2024 update now allows all BRP holders to create their UKVI account and eVisa.

Employers should inform all employees who hold a BRP card of this update and ask them to create their UKVI account and eVisa as soon as possible.

By doing so, employers are simplifying the Right to Work checks they must undertake when an employee or prospective employee has an outstanding application, appeal etc.

The Employer Checking Service and Positive Verification Notices system should become redundant for BRP holders who have created their UKVI account and eVisa.

All relevant details on creating a UKVI account and eVisa are provided in the following link, including a 5 minute video :

https://www.gov.uk/guidance/online-immigration-status-evisa

If employers encourage all their BRP holder employees to create their UKVI account and eVisa, the Right to Work checks will become much simpler for all employers. No more chasing employees for outstanding application details, no more head scratching of the current “snakes & ladders” system of using the Employers Checking Service and obtaining Positive Verification Notices and then finally returning to the online check when a new visa is granted – only to start this process all over again if their new visa is also time-limited.

If employees have an eVisa they should always be able to provide a “share code” and employers can use the normal online check at all times.

If any employer has concerns in respect of their compliance with Right to Work checks or wishes to refresh on the ever-changing system of checks, we offer half-day training on Right to Work Checks for Employers. After our half-day training we provide employers with full confidence in respect of carrying out the correct checks in order to avoid the significant financial penalties for employing an illegal worker and to confidently recruit and retain as widely as possible.

Mark Templeton is the Head of Immigration in the Employment, Immigration and Pensions team at Anderson Strathern LLP and can be contacted by email: mark.templeton@andersonstrathern.co.uk

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