This article looks at how employers can navigate the visa extension maze with right to work checks, the ’28-day rule’, and the employer checking service.
In the United Kingdom, employers are entrusted with the responsibility of ensuring that their employees possess the legal right to work. This duty encompasses not just the initial recruitment process but extends to employees applying for visa extensions.
For employers with a sponsor licence, right to work checks are mandatory and failing to carry out proper checks on all employees is a compliance breach and could lead to sanctions.
Right to work checks can become particularly tricky when it comes to existing employees looking to extend their visas. For example, an employee’s visa has expired – they tell you they submitted their visa application prior to the visa expiring, you know that by law their legal position is protected, but where do you stand in terms of proof and evidencing a right to work?
To assist employers in this process and ensure legal compliance, the UK government has provided the Employer Checking Service (or ECS), accompanied by the important ‘28-day rule’. In this article, we will explore how employers can correctly perform right to work checks when an employee applies to extend their visa in the UK, with a special focus on the ECS and the 28-day rule.
Understanding the ECS
The ECS is a digital tool provided by the Home Office, designed to streamline and enhance the verification of an individual’s right to work in the country. It is an essential resource, particularly for employers dealing with employees who are in the process of extending their visas.
Below is a step-by-step guide to navigating the ECS:
- Request Documentation: As part of the right to work check process, begin by requesting the necessary documentation from employees who are applying for a visa extension. This typically includes proof that they have made an application, such as a copy of an email from the Home Office confirming their application has been submitted.
- Access the ECS: Employers can access the ECS to verify an individual’s right to work by inputting the details from their current visa or biometric residence permit or residence card. If this fails, then there is an option to call the ECS as well.
- The service offers verification, ensuring you receive immediate confirmation of the employee’s right to work. This not only simplifies the process but also minimizes the risk of inaccuracies in manual document checks. It will provide the employer with a Positive Verification Notice, which covers the employer for 6-month protection from liability, covering the employee’s extension period.
- Employers are encouraged to maintain detailed digital records of their right to work checks, including the date of the check, specifics of the documents verified, and the Positive Verification Notice obtained from the service, and, vitally, mark in their calendars prior to the 6-month expiry of the ECS result just in case the visa extension is still in process.
- Should the employee not have a decision on their visa extension application by the 6-month anniversary of the check, you can follow points 2-4 above again.
- It is important to note: This ‘grace period’ does not apply to checks carried out before employment commences. In such circumstances, you need to carry out 1-5 above before employing the individual and delay employment until such time as you receive a six-month Positive Verification Notice from the ECS.
28-Day Rule: One of the critical aspects of conducting right to work checks during a visa extension period is understanding and adhering to the 28-day rule. This rule allows existing employees whose visas have expired to continue working, without their employer risking being in breach of the illegal working rules, for up to 28 days after their current visa expires. In the case of continuing employees, this is provided, of course, that the employer had done the correct right to work checks prior to the visa expiry.
N.B. Should the employer attempt to carry out an ECS before the employee’s visa has expired, this will simply result in the Home Office confirming that they can work until their expiry date.
For employees applying for visa extensions, the Employer Checking Service can expedite the verification process and facilitate compliance with right to work rules during the application processing period, even if their current visa has expired. This also helps employers comply with their duties under the Equality Act and retain respected staff.
The Employer Checking Service, complemented by the 28-day rule, is a critical asset for employers conducting right to work checks, especially for employees applying for visa extensions. It streamlines the verification process, minimizes the risk of errors, and provides valuable confirmation of an individual’s right to work. Additionally, the 28-day rule offers employees a grace period during which they can work while their extension application is pending, without no undue stress caused to HR professionals. By embracing these tools and guidelines, you can uphold compliance with immigration regulations and extend support to your employees during the visa extension period. Proactive engagement with the latest immigration regulations is key to building trust and goodwill with your workforce while steering clear of legal complications.
If you are an employer and would like advice and assistance around any immigration or employment matter, contact us today.