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UKSolicitorJA, Solicitor
Category: Immigration Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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Work permit with I.L.R if p'port expired?

Customer Question

My husband, who is Indonesian, has indefinite leave to remain. He has worked for the same company since 2010. They informed him today that until he has a B.R.P, which requires an N.T.L application he has to stop working, since his Indonesian passport which has the I.L.R document inside has expired. He has a new passport, but the visa is in the old passport. Can they stop him working like this? He has had no notice. We have 2 young kids and rely on his income. It will cost £500 for us to process the application in person, otherwise it could take weeks by post. Is he legally entitled to continue to work whilst the application is being processed, if it is indeed necessary to get the B.R.P?

Submitted: 3 years ago.
Category: Immigration Law
Expert:  UKSolicitorJA replied 3 years ago.
He is perfectly entitled to work as his ILR status does not expire and there is no legal requirement that he has to apply for a NTL visa to be placed in his new passport.
He may carry both the old and new passports together.
His employer should ring the Home Office is they are still in doubt or they should look at this document which clearly states that he has the right to continue working:
May I help further?
Customer: replied 3 years ago.

I believe his employers are referring to the new requirements since May 2014 that state a visa document in an expired passport is not acceptable.

When he began working in 2010 he had 1 year left on a spouse visa. In 2011 he attained indefinite leave to remain, but his employer did not bother to check this until now. During the recent check they have seen that his spouse visa expired in 2011 and on checking the current document requirements discovered the new rules stipulate that the passport must be current and because it has expired they are now demanding a B.R.P before he can work again. However, if they had checked in 2011 when they should have checked this would not have been an issue.

What can we do?

Expert:  UKSolicitorJA replied 3 years ago.
Your husband is entitled to work, see the document which I linked you to.
There is no requirement for a BRP for someone in his position.
All the best
Customer: replied 3 years ago.

As above his employers are referring to the updated version of this document which came out in May 2014. This states that a visa in an expired passport is not acceptable.

The issue is that they should have checked his documents in 2011 when his previous spouse visa expired, but they didn't and are now expecting him to meet he new requirements. (According to the updated version of the document if he was a prospective employee or on a limited visa requiring regular checks an expired passport is not acceptable)

It is their fault for not checking his documents in 2011, but the fact remains that they didn't so what recourse do we have?

Expert:  UKSolicitorJA replied 3 years ago.
Thank you.
Item number 7 of List A of this updated document issued in November 2014 states that an acceptable document is a Home Office letter granting your husband indefinite leave to remain together with a letter issued by a Government department such as HMRC confirming his name and national insurance number.
Your husband has a right to work in the UK by law and that is not changed by Home Office guidance documents which are not law but mere guides.
The employer should phone the Home Office if they are in doubt.
Hope this clarifies.