Since the end of May 2019, nationals from a number of non-EU countries have been able join EU and UK citizens in being able to use eGates when entering the UK at certain air and rail ports. Whilst this certainly beats a long queue in the arrivals hall, a number of issues are starting to emerge.
Who can use an eGate?
It is possible for a person to use an eGate if they:
- have a biometric symbol on the cover of their passport;
- are aged 12 or older (those aged 12 to 17 must be accompanied by an adult); and
- they are:
- a British citizen
- a national of an EU country, Australia, Canada, Iceland, Japan, Liechtenstein, New Zealand, Norway, Singapore, South Korea, Switzerland or the USA
- a member of the Registered Traveller Service.
What type of leave do non-EU nationals who enter via an eGate obtain?
Most non-EU nationals need permission to enter and remain in the UK. This is known as ‘leave’.
The Immigration (Leave to Enter and Remain) (Amendment) Order 2019 allows a national of one of the above non-EU countries, who enters the UK via an eGate, to be automatically entered as a visitor. This is unless the individual holds entry clearance (also known as a visa) which is valid when they enter the UK. If the individual holds valid entry clearance, they would be entered in accordance with that document (for example, a student under Tier 4, a worker under Tier 2 etc.).
A person who is entered into the UK as a visitor cannot work (unless they are carrying out a permitted activity), or study for more than 30 days. The rules for visitors are contained in Appendix V of the Immigration Rules.
All citizens of a country listed in Appendix 2 of Appendix V must obtain entry clearance before travelling to the UK.
A citizen of a country that is not on the list, which includes those permitted to use eGates, is known as a non-visa national (NVN). They only need to apply for entry clearance before travelling to the UK if they are seeking to enter in a category of the Immigration Rules that requires them to have entry clearance. This includes those seeking entry under Tier 4, Tier 2 and most of the other work/investment related routes.
What type of leave is granted if a person enters the UK before the start date on their entry clearance?
Last week we put this question to the Home Office, describing a scenario where a person holding entry clearance under Tier 2 entered the UK a few days before the start date.
The Home Office responded that:
‘If the individual entered through e-Gates before the start date of their Entry Clearance, they will have visitor leave. In order for the EC leave have effect, they need to arrive within its validity…In the scenario described, the individual would need to leave the CTA and re-enter on or after the start date of the EC.’
The Home Office guidance document for those applying under Tier 4 was also updated last week. This also confirms, at paragraph 194, that:
‘you must not enter the UK earlier than the first date on your vignette, or your Tier 4 leave will not be valid.’
This means that the Home Office would also expect a student, who has entered before start date on their entry clearance, to leave the UK and re-enter on or after that date to activate that leave.
Implications for students, workers, sponsors and other employers
First of all, it is by no means low cost to leave the UK and re-enter. Being required to depart again soon after arrival, solely to turn around and come back, is also not a welcoming experience.
But there are far more serious legal issues to consider.
It is a criminal offence for a non-EU national to work in the UK if they do not have permission to do so. Employers can be issued with civil penalties, or even potentially prosecuted, if they employ such a person. Further information on the prevention of illegal working legislation is here.
Failure to comply with a condition of leave, including a restriction on studies or employment, is also a criminal offence under section 24(1)(b)(ii) Immigration Act 1971. Although prosecutions under this law are extremely rare (usually breaches are dealt with as an immigration breach – meaning that leave can be curtailed, future applications can be refused, etc.), clearly students and workers should avoid doing anything that is classed as a criminal offence in the UK.
An education provider that teaches a non-EU student who does not have permission to study in the UK cannot be prosecuted. But they can face enforcement action by UKVI if they hold a Tier 4 sponsor licence. This is because Tier 4 sponsors have a duty to ensure that all their students have the right to study in the UK.
As explained above, if a person who is supposed to be coming to the UK to work or study, and has entry clearance for that purpose, enters before the start date, they are entered as a visitor. In the case of an employee holding Tier 2 entry clearance for example, this means that they will have no permission to work at all so it is extremely important that they do not start work until their Tier 2 leave is activated.
In the case of a student holding Tier 4 entry clearance, Appendix V enables a person to enter the UK and study for up to 30 days providing ‘the main purpose of the visit is not to study.’ As the main purpose will be to study, the student would not be able to study lawfully for up to 30 days. This is unless the Home Office provides an assurance similar to that provided in the case of those entering under the short-term study route which.
eGates issues for short-term study students
The short-term study (STS) route allows students to come to the UK for a course of up to six months, or 11 months for English language courses only. A student seeking entry for up to six months who is a NVN does not need entry clearance but does need to be entered into the UK under the STS route, and not as a visitor. Border Force officers need to place a specific stamp allowing study under the STS route into the passport of the individual (this stamp confers the correct leave).
If a student who should have been entered into the UK under the STS route (by seeing a Border Force officer and obtaining a stamp) instead enters via an eGate (so as a visitor), the Home Office has confirmed that they can start their course of study.
In recently published guidance for institutions they stated that:
‘If a NVN presents at your institution with a visit stamp from a Border Force officer, or no stamp as they have entered through an e-gate, you can enrol that student and allow them to begin their studies. However, you must advise the student that they will need to leave the UK before they have completed 30 days of study and request an STS stamp from a Border Force officer on their return to the UK. You will be required to obtain a copy of the STS stamp they receive on entry on file to allow them to continue their studies.’
We understand that at some ports, students who need a stamp and make this clear to officials have still been directed to enter via an eGate, possibly to help reduce the number of people queuing in the arrivals hall. The Home Office has asked education providers to provide specific details of when and where this is happening.
The Home Office is also trying to assist STS students (and those who need to enter under Tier 5 or to undertake a Permitted Paid Engagement who also need a specific stamp) in getting that message across to Border Force officers. They have just released this leaflet for students to carry with them when they enter the UK. This explains to Border Force officers that they need a stamp (as an aside, none of this is indicative of good intra-departmental communication and cooperation).
What steps should education providers and other employers take for Tier 4 students, Tier 2 workers and others who enter before the start date on their clearance?
We know that the Home Office is aware that the issues we have set out above are starting to emerge and is actively looking at ways to solve them.
Unfortunately, until the legislation changes, or the Home Office announces specific measures to assist, we recommend that sponsors and other employers:
- provide information to workers and students before entry to warn them not to travel before the start date on their visa; and
- check the basis upon which any non-EU students/workers have entered the UK.
If the passport does not contain an immigration stamp and the individual is from Australia, Canada, Japan, New Zealand, Singapore, South Korea or the USA, the individual may have come into the UK via an eGate.
If they do not have entry clearance, they will be in the UK as a visitor. In that case, employees would not have any permission to commence work and should leave the UK, obtain entry clearance and ensure they enter on or after the start date contained on the entry clearance vignette in their passport. They can then start work.
If an employee does have entry clearance, employers should ask to see (and retain) a boarding card or other evidence of the date the person entered the UK. If this is on or after the start date of their entry clearance, the individual can commence work lawfully. If they have arrived before the start date, they would need to leave the UK and re-enter on or after the start date to activate the entry clearance.
Employers should ensure they retain evidence of the right to work checks they have performed.
In relation to Tier 4 students who enter via an eGate before the start date of their entry clearance, as we explained earlier, the Home Office is also expecting them to leave the UK and re-enter on or after the start date. Given that the Home Office has confirmed that those who were meant to enter under the STS route, but came in as a visitor, can study for up to 30 days, we would expect them to apply the same logic to those who were meant to enter under Tier 4.
At this point in time, the Home Office is expecting education providers to check when the student entered the UK and retain evidence, such as a copy of the boarding card. The Home Office is looking at moving quickly to a position where, rather than retaining evidence, it will be possible for the education provider to check the date of entry with the student and simply note on their record when they entered. If a student has entered before the start date, they will then need to leave and re-enter.
This all creates more work, especially for education providers at an already very busy time of the year, and we very much hope that the Home Office fixes this issue as a matter of urgency.
Advice for individuals
Unfortunately, our advice to individuals who hold entry clearance is to not enter the UK (via an eGate or via a Border Force officer) before the start date on that document, unless they are a NVN and intend to visit for a short period. Entering as a visitor means that they will need to leave and return to activate the leave conferred by the entry clearance.
There may be exceptional circumstances which mean that leaving the UK and re-entering to activate entry clearance is not possible. The Home Office may be willing to deal with those cases exceptionally but that is likely to be rare.
We will provide further updates as more information is released on this point. If you require further information on this, or any other aspect of UK immigration law, please contact us.