This information outlines the steps UK employers and their international nationwide staff ought to take when a visa is approaching expiry and a brand new immigration software is pending.
I’ve co-written this with my employment specialist colleague Gillian Moore, as a result of usually there’s a actual pressure between the recommendation an worker could also be getting from their immigration lawyer and the recommendation an employer could also be getting from their employment lawyer. However there doesn’t have to be. Lately there are a lot better proper to work checking programs in place than there was. If each employer and worker are knowledgeable and organised in regards to the procedures to observe, there isn’t a cause for this course of to be fraught.
We are going to have a look at the authorized protections accessible beneath part 3C of the Immigration Act 1971 (generally known as “3C go away”) and the way this interacts with proper to work checking steerage. We are going to establish compliance dangers and dismissal issues for employers, and finish by providing some sensible instruments for HR groups.
Fast Information – verifying proper to work on 3C go away
If an worker has made an in-time software and their earlier go away permitted work:
– Ask them to generate a share code (in the event that they maintain an eVisa).
– Use the House Workplace on-line proper to work service to verify their share code and confirm their standing. You’ll need their date of start.
– If no share code is on the market, submit an Employer Checking Service request utilizing the worker’s pending software reference quantity (search for the UAN which is a 12-digit quantity starting with 1212 or 3434).
– A sound Employer Checking Service end result or on-line verify will present a statutory excuse for six months.
What’s 3C go away?
Part 3C of the Immigration Act 1971 robotically extends an individual’s immigration permission in the event that they submit a legitimate “in-time” software from contained in the UK to increase or differ their go away. An in-time software is an software submitted earlier than midnight on the date that particular person’s present permission expires.
Instance
Agnes has legitimate immigration permission because of expire on 19 Might. Agnes submits an software for additional permission on 19 Might. Agnes has made an in-time software. Agnes advantages from 3C go away.
Boris had legitimate immigration permission because of expire on 19 Might. Boris submits an software for additional permission on 20 Might. Boris has not made an in-time software. Boris doesn’t profit from 3C go away.
3C go away continues till the applying is determined, withdrawn, or handled as invalid, together with any attraction or administrative evaluate interval. 3C go away preserves the best to stay within the UK and, crucially, to proceed working beneath the identical circumstances as their earlier visa. If an individual on 3C go away exits the Frequent Journey Space whereas their software remains to be pending, their software will robotically be withdrawn and 3C go away will finish.
Proper to work throughout 3C go away
Staff on 3C go away retain the best to work beneath precisely the identical circumstances as their earlier visa. Any restrictions that utilized to an individual’s proper to work will proceed all through 3C go away, till they’re supplanted by a brand new grant of immigration permission.
Employers should not assume a lack of permission or the best to work based mostly solely on the expiry date of the worker’s visa. An employer should take steps to confirm an worker’s standing earlier than taking any choices relating to their continued employment. Staff ought to guarantee they co-operate with their employer on this course of.
Verifying proper to work: course of and greatest observe
The strategy of verification of continued permission to work is determined by whether or not the worker is an eVisa holder with entry to their digital UKVI account:
- If the worker is an eVisa holder, they may have the ability to show their standing instantly throughout 3C go away utilizing the net share code system.
- If the worker shouldn’t be an eVisa holder, or can not generate a share code, the employer should contact the House Workplace’s Employer Checking Service. Keep in mind that the Employer Checking Service can take as much as 5 working days to return a response.
- If both an employer or an worker is ever unsure about learn how to strategy a proper to work verify, it’s good observe to lookup the most recent House Workplace steerage on proper to work checking procedures.
Greatest observe ideas for employers
- Observe visa expiry dates and construct in reminders properly prematurely of expiry.
- Request early affirmation from staff that an software is being ready for submission.
- Take into consideration checking in maybe three months earlier than expiry, and if applicable, once more one month earlier than expiry. Use your judgement on whether or not additional check-ins are vital.
- If the worker’s software remains to be pending on the eve of their expiry date, request a share code (if accessible) or submit an Employer Checking Service request.
- Should you get to the worker’s expiry date and nonetheless haven’t been capable of confirm proper to work by way of share code or Employer Checking Service, ask for proof of software submission, corresponding to a UKVI fee receipt or electronic mail affirmation. In case you are fairly glad that they’ve submitted an software, it is best to proceed to make use of pending the end result of the Employer Checking Service.
- Retain all data of proper to work checks, share code outcomes, or Employer Checking Service responses.
- Ask the worker to pro-actively hold you up to date on developments.
- Schedule follow-up checks earlier than expiry of your statutory excuse.
Authorized framework and case regulation on proper to work dismissals
Employers have to be notably cautious to not make assumptions about immigration standing. They need to confirm the best to work via the suitable channels. This obligation applies equally to sponsored and non-sponsored staff.
Diligent employers generally rush to dismiss an worker the place there’s any doubt about their proper to work. This occurs as a result of diligent employers are, understandably, very involved about being discovered to have employed somebody illegally and really feel beneath strain to take motion.
Nevertheless, when an worker’s visa is because of expire or has expired, employers should take care to not act prematurely. Like all staff within the UK, sponsored staff who’ve been employed for a minimum of two years are protected towards unfair dismissal. They’re additionally protected towards discrimination from day one in all their employment (and even earlier than).
Whereas illegality (e.g. no proper to work) is a probably truthful cause for dismissal, it should solely apply the place employment would really break the regulation. It isn’t sufficient that the employer merely thinks it would.
That mentioned, an employer can pretty dismiss an worker for ‘another substantial cause’ the place it has a real and cheap perception that continued employment is illegitimate. That perception have to be based mostly on correct investigation and proof, not assumptions. A dismissal based mostly on assumptions will seemingly be unfair and may additionally be discriminatory on grounds of race or nationality.
Work Rights Centre has produced assets for folks whose rights at work have been breached.
The circumstances beneath illustrate the dangers of hasty or uninformed motion by the employer and the significance of following truthful procedures. They present that:
- Lack of documentation doesn’t robotically justify dismissal.
- Employers should take cheap steps to confirm the worker’s standing.
- Dismissals can nonetheless be truthful if the employer has genuinely tried to verify the worker’s proper to work, however is unable to take action and follows a good course of.
Employers ought to rush to analyze any proper to work points, however shouldn’t rush to dismiss till they’ve sufficient data to verify that dismissal is both unavoidable or is an inexpensive plan of action within the circumstances.
Baker v Abellio London Ltd [2017] UKEAT 0250_16_0510
Mr. Baker, a Jamaican nationwide, had lived within the UK since he was a baby and was permitted to stay and work within the UK with none immigration restrictions. When he failed to provide proof of his proper to work, his employer dismissed him. The Employment Attraction Tribunal held that Mr Baker couldn’t have been dismissed pretty on grounds of illegality, as a result of it was not unlawful for Abellio to make use of him. They could have been capable of pretty dismiss him for another substantial cause, specifically his repeated failure to provide the requested documentation, offered they performed an inexpensive investigation and adopted a good course of.
Nayak v Royal Mail Group Ltd [2016] UKEAT 0481_13_3003
Mr. Nayak’s visa was expiring and he failed to offer proof of a brand new software regardless of repeated requests. Royal Mail contacted the House Workplace however obtained no affirmation. The tribunal held that Mr Nayak’s dismissal was truthful, because the employer acted on a real and cheap perception and adopted due course of.
Mr F. Afzal v East London Pizza Ltd [2018] UKEAT/0265/17/DA
We wrote this case up on the time, Mr. Afzal submitted a well timed software however failed to offer his employer with affirmation earlier than his visa expired. His employer dismissed him instantly with out providing an attraction. The tribunal discovered the dismissal was procedurally unfair. Employers should give staff an opportunity to clarify and supply proof earlier than taking motion.
RAMFEL v Secretary of State for the House Division [2024] EWHC 1374 (Admin)
The Excessive Court docket discovered that the House Workplace’s failure to offer proof of standing to these on part 3C go away was illegal. Many had been left unable to show their proper to work. Employers shouldn’t assume lack of permission the place no proof is offered and will use the Employer Checking Service to confirm standing. Free Motion coated this one intimately.
Case research: sensible eventualities
Case research: inappropriate dismissal – employer acts too quickly
Meena has been employed beneath a Expert Employee visa for 3 years. She submits an in-time software to increase her visa. She informs HR and supplies proof however can not generate a share code. Her employer dismisses her the day after her visa expires with out making an Employer Checking Service verify. This dismissal is probably going unfair.
Case research: applicable dismissal – truthful course of
Pavel’s graduate visa expires and he doesn’t present his employer with proof of a pending software. HR contacts Employer Checking Service, which confirms no software is on file. HR follows a good course of, assembly with Pavel to supply him a chance to clarify earlier than terminating employment. This dismissal is prone to be truthful.
Templates and Instruments
Pattern HR coverage wording
The place an worker submits a legitimate, in-time software to increase or differ their immigration permission, they may proceed to have the best to work beneath part 3C of the Immigration Act 1971.
In such circumstances, the worker should present:
- Affirmation of the applying having been submitted, and
- A share code (if relevant) to allow a proper to work verify utilizing the House Workplace on-line system; or
- Permission for HR to submit an Employer Checking Service request.
If the worker doesn’t present proof of a pending software and their proper to work can’t be confirmed, the matter can be reviewed and should end in dismissal.
Pattern employees communication template
Topic: Visa Expiry and Proper to Work Affirmation
Expensive [Employee Name],
Our data present that your present immigration permission is because of expire on [Date]. Please affirm whether or not you might have submitted an software to increase or differ your visa.
If you might have submitted an software, please present a share code for us to confirm your proper to work on-line.
In case you are unable to generate a share code, please present proof of software submission (corresponding to a UKVI fee or acknowledgment receipt and software reference quantity), and tell us in order that we are able to perform a verification verify with the House Workplace Employer Checking Service.
When you have not but submitted an software, please affirm whether or not you propose to take action, and if that’s the case on what date.
We admire your help in serving to us meet our authorized obligations and guaranteeing your continued employment.
Sort regards,
[HR Representative Name]
