Right-to-work checks for employees with pending visa applications

01 Aug 2023, 56 mins ago

As an employer, you must conduct right to work checks on all employees to ensure that they have the right to work for your organisation. In this blog, we discuss what can be done if your current or prospective employee’s visa has expired, but they have submitted an application for permission to stay in the UK.

In certain circumstances, your current or prospective employee might present you with an expired immigration document and indicate that they have an outstanding in-time visa application for permission to stay in the UK. In such cases, you can use the Employer Checking Service (ECS) to ensure that such employees are permitted to undertake the work in question..

Conducting the appropriate right to work check should provide you with a defence against a civil penalty if it transpires that you unintentionally employed an illegal worker. Alternatively, you may end up paying up to £20,000 per illegal worker. It is therefore critical to make sure that you get it right.   

What is the ECS?

The ECS is a type of online right to work check that should be used when an individual has a pending appeal, administrative review or application with the Home Office.

How do I use the ECS?

To use the ECS, you will have to visit the Home Office website, which can be accessed here. You will need to enter the employee’s details and then submit your request to the Home Office.

Unlike with other forms of online right to work checks, you do not need to obtain a share code from the employee first. However, you will need their permission to use the ECS and a reference number relating to their Home Office records, which could be their pending application reference number, BRP number, passport number, or tracking reference..

How long will it take to get a response?

It could take up to 5 working days (subject to delays) to receive a response.

You should wait for at least 14 days after the submission of the employee’s application or appeal before requesting an ECS check to allow the Home Office to update their systems.

What will the outcome be?  

If the individual has the right to work for your organisation, you should receive a Positive Verification Notice (PVN) from the Home Office. The PVN will be valid for 6 months.

If your current or prospective employee’s visa is granted during the 6-month period, you will need to carry out an online right to work check using the standard online right to work website and by requesting a share code from your employee.

If your employee does not receive a decision on their application within the 6 months that the PVN is valid, you will need to carry out a further ECS check, which will be valid for another 6 months. It is important to know that not all individuals with pending applications will have the right to work. You may receive a Negative Verification Notice, which informs you that the individual does not have the right to work.

It is thus recommended that the  ECS request is submitted before the individual’s current visa expires (if you are already employing them), or do not start their employment until you have received a PVN.

Depending on the employee’s particular circumstances, there may be additional documents you will need to retain on file in order to protect yourself against a civil penalty. For example, for individuals with pending applications under the EU Settlement Scheme, you must keep a copy of their Certificate of Application (a document confirming that they have submitted a valid immigration application).

 How Gherson can assist

Gherson’s Immigration Team are highly experienced in advising on UK visa matters. If you have any questions arising from this blog, please do not hesitate to contact us for advice, send us an e-mail, or, alternatively, follow us on TwitterFacebookInstagram, or LinkedIn to stay-up-to-date.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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