ePassport gates: genius idea or recipe for disaster?

What are ePassport gates?

These are electronic gates that use technology to authenticate the biometric passport and also facial recognition technology to compare an individual's face to the digital image on their passport. They allow individuals with a biometric passport to go through UK borders without needing to go through a Border Force officer.

These gates were introduced in 2008 and initially only for use by British citizens and citizens from the EU/EEA. On 20 May 2019, the list of nationalities that could use the ePassport gates expanded to include the following countries: Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States of America. There is a Registered Traveller Service for those with Hong Kong and Taiwan passports to also use these gates.

Guidance advises that the ePassport gates automatically grant Leave to Enter without any physical stamp in the individual's passport. The system is supposed to recognise those with valid visas in other categories and thus when entering they are not considered as visitors. For example an individual on a Tier 2 (General) visa can enter the same way as a US national entering for business visit purposes and the system will acknowledge the difference between the two using the internal records.

What are the issues?

ePassport gates are a great way to speed up passengers going through passport control and mean those nationalities that can use this service can skip the lengthy queues – provided the gates work and open!

However, this system can lead to many visitors overstaying or breaching the terms of their visitor status as there is no interaction with a Border Force officer to ask questions or flag the basic terms of stay. There have been posters put at the entry points with reminders of the conditions of a visitor stay but this does not amount to the same level of attention and clarity provided in a verbal communication with a Border Force officer.

Those on other UK visa categories are normally issued with 30 day entry vignettes which must be activated on entry to the UK. Previously the entry stamp would demonstrate that they have activated their visas but going through the ePassport gates means that there are no longer any stamps on the vignettes. This creates additional compliance and administrative steps for employers and education providers to ensure that individuals entered during the validity of the 30 day vignette.

The issue does not stop there. If a sponsored worker on a Tier 2 (General) visa entered the UK before the start of their 30 day entry vignette, they have entered as a visitor. They will need to leave the UK and enter during the 30 day validity in order to activate their status as a worker. If they do not activate their visa and start working in the UK, they will be breaching the terms of their status and can be considered an illegal worker. This can have a devastating impact on the individual as they can be removed from the UK and risk future UK visa applications being refused. The sponsoring company can receive a civil penalty of up to £20,000 per illegal worker and risk losing their sponsor licence which will impact any other sponsored employee. These records are also public and can immensely damage the company's reputation.

The system has also created issues for individuals entering the UK under Part 3 of the Immigration Rules that allow certain nationalities to come for short-term study (STS) for up to six months without a visa. In order to qualify for this, the individuals must see a Border Force officer on arrival and this process can easily be missed if the individual enters using the ePassport gates. This can lead to the individual entering as a visitor instead of the STS route and if they study it can lead to a breach of their status, which may result in future UK visa applications being refused. The education provider that the individual is enrolled with can also be in breach of their compliance and if they have a Tier 4 sponsor licence, they can risk potentially losing their licence.

What steps can companies and education providers take to avoid these risks?

It is crucial to have a conversation with the sponsored employee or student to explain the terms of their 30-day entry vignettes and when they need to travel to activate their visas before their flights are booked. We recommend using legal representatives to help with dealing with all the compliance requirements from the application process all the way to the individual entering the UK correctly.

As part of the right to work or study checks, please ensure you have seen the original passport with the 30-day entry vignette and the Biometric Residence Permit. If the vignette is not stamped, please ask for travel confirmation to ensure they entered the UK within the 30 day window stated on their vignette. You will need to make a note of the date of entry but do not need to keep the evidence on their file.

Brexit

We need more clarity on the how the system will distinguish between EU/ European Economic Area (EEA) nationals that have already been to the UK prior to the end of the transition period (subject to what may be agreed between now and 31 December 2020) and those that have recently entered.

This is likely to be another challenge for the system to identify those individuals already in the UK and under the EU Settlement Scheme route and those entering under the new system granting three-year European Temporary Leave to Remain in the UK scheme.

There are already various compliance issues that can have significant implication for individuals unintentionally breaching the terms of their stay leading to companies having illegal employees and education providers having illegal students. The government must ensure it addresses the potential implications ePassport gates can also have on EU/EEA nationals after the transition period to avoid further complex issues ahead.