Personal Immigration

Home Office Consultation – Sanctions for non-compliance with the Biometric Registration Regulations

The Home Office has today (11 November 2014) launched an open consultation with the public over proposed amendments to the Code of Practice about the sanctions for non-compliance with the biometric registration regulations issued by the Secretary of State under the UK Borders Act 2007.

Changes to the Code, which has been in place since 2008, are prompted by the imminent introduction, in 2015, of a new requirement for migrants who have been granted leave to enter the UK for a period of more than six months to collect a Biometric Immigration Document (BID) shortly after their arrival in the UK. The opportunity is also being taken to update the layout and wording of other parts of the Code. A summary of the proposed changes can be found here.

History

Evidence of leave to enter or remain in the UK used to be issued in various forms of paper document such as stamps or vignettes in a passport or on an Immigration Status Document (e.g. where no passport was available). In 2008 the Secretary of State exercised new powers provided by the UK Borders Act 2007 which permitted her to require applicants for leave to enter or remain in the UK to apply for a BID. The relevant provisions were set out in the Immigration (Biometric Registration) Regulations 2008 (the Regulations) and have subsequently been amended on several occasions. The new BIDs take the form of a plastic card similar in appearance to a driving licence. In 2012 the process was completed and all successful in-country applicants are now issued with a plastic Biometric Residence Permit or Short Stay Permit (collectively referred to as BIDs) with details of the leave which has been granted. Once issued, the BIDs are forwarded by secure delivery directly to the applicant or their representative separately from other paperwork.

In 2015 the process will gradually be extended so that applicants who are out of the country will also have to apply for a BID. As these will not be sent to a successful applicant prior to their arrival in the UK, the applicant will be required to collect their BID shortly after arrival in the UK.

Requirements of the Regulations

There are currently two categories of requirements: application requirements; and maintenance requirements. A third category, collection requirements, will be introduced for the 2015 changes.

Application requirements must be complied with during the application process and include requirements for the migrant to:

  • apply for a BID in certain circumstances (including whenever applying for leave to remain, will extend to whenever applying for leave to enter);
  • surrendering certain documents when required to do so;
  • following prescribed processes (including submitting fingerprints and a facial photograph by a specified date).

Maintenance requirements must be complied with after a BID has been issued and include requirements for the migrant to:

  • notify the Secretary of State if they suspect that information they have provided in connection with their application for a BID was or has become false, misleading or incomplete;
  • use their BID in certain circumstances;
  • comply with other requirements;
  • surrender any BID's in their possession when required to do so.

Collection requirements will apply to migrants who are outside the UK at the time of application and include requirements for the migrant to:

  • collect their BID from a specified UK Post Office (or agreed alternative);
  • within the timescale set out in their notification letter (likely to be measured in days).

Sanctions

As indicated in the title of the Code of Practice, the Home Office imposes a series of sanctions for migrants who do not comply with their obligations under Regulations. Possible sanctions include:

  • refusing to issue a BID;
  • refusing an application for leave to enter or remain in the UK;
  • rejecting such an application as invalid;
  • cancelling or curtailing existing leave to enter or remain;
  • fining by way of a civil penalty notice (from £125 for breach of a maintenance of collection requirement; from £250 for breach of an initial application requirement).

Other Matters

The Code includes provisions for increasing the fine (e.g. for multiple compliance failures) or reducing it (e.g. where mitigating factors apply). It also includes provisions in relation to the vulnerable, circumstances where sanctions will not be, or are unlikely to be, imposed, and the various methods which may be open to challenge any sanction that is imposed. With other changes introduced by the Immigration Act 2014, such changes are unlikely to include a right of appeal.

Consultation

Members of the public are invited to respond to the consultation:

The consultation closes at 11:45 pm on 23 December 2014.

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To arrange an initial consultation meeting, call our immigration barristers on 0203 617 9173 or fill out the form below.

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