What happens in this limbo period when your employee’s visa has ended and the new one has not yet been issued? Can she stay in the country? Does she have the right to work? Is the employer safe if anything goes wrong?
In my experience, over 90% of employers simply do not know what they are supposed to do. Of these, the good-natured ones would hope for the best and do nothing or invent their own system of “ensuring” that everything is fair (for example, ask the employee twice in the morning and one more time in the afternoon if they have any news about the visa and make a written note of the answer). The tougher ones often suspend the employee until she comes back with a visa. Which one is right?
Actually, neither. The home-made system of rigorous checks will not protect the employer against potential fines, but dismissing the employee is not a reasonable response either.
I thought that a checklist would be helpful for any business owner or HR professional, who wants to make sure they are not taking any risks and at the same time respect and trust their employees.
The important thing is that all steps have to be taken at the right time, so keep the checklist safe for any future scenarios.
Before the employment start date or on the first day of employment, take a copy of the details page of the employee’s passport and if it is not a British passport, a copy of their visa, which is either a vignette in the passport with an expiry date on it, or a Biometric Residence permit.
If your employee has a Biometric Residence Permit take copies of both sides of the card. Make sure that the person who takes these copies signs the paper copy with his name and date and confirms that the identity of the employee was checked in his or her presence.
Note the expiry date of the visa and create a document listing all employees who have limited leave to remain and expiry date of the visa. If you only have one employee, create this document with only one name and date on it. This is in order to create a “system” that you can use and update.
Set up an automatic reminder to be sent to two people in HR (just in case one person is on holiday, the other will receive the email). Ideally, it should reach you three times: two months before the expiry date of the visa, on the date of expiry and 28 days after the expiry.
After the first reminder, two months before the expiry date, remind the employee that they need to take action. It is advisable that they apply as early as possible, which is normally 28 days before the expiry date. This is because the Home Office takes two to four weeks to add the application into the system and take payment and only then confirms that the application is valid.
Check with your employee about the date they submitted the application. As long as it was sent to the Home Office not later than the expiry date of their visa, they have made an in-time application for extension.
Once your employee confirms that the Home Office has taken the payment, you can log in to the Employer’s Checking Service, complete the form and wait for a Positive Verification report. It may take a couple of days.
You have to get your Positive Verification Notice not later than 28 days after the expiry date of the visa (the first 28 days are the period when you will not be fined; this gives the Home Office time to process in-time applications).
You have to keep positive verification notice safe as it is valid for the next six months unless the visa is refused and you become aware of it.
If closer to the end of the six months’ period your employee tells you that they have not yet received a decision on their application, you have to repeat the procedure and obtain clearance for another six months. There is no limit to how long the Home Office may take to process a visa extension application and as long as you continue to receive your Positive Verification Notice you are safe to continue with the employment.
If you do not get a Positive Verification Notice within 28 days of the visa expiry date or if six months later a repeated check gives you a negative response, you have to terminate the employment.
Having said this, we recommend that you discuss the situation with your employee. Sadly, it is not uncommon for the Home Office to give incorrect information and if this happens you or your employee may need legal advice.
Note that most visa applications can be expedited at an extra cost and the decision can be made in 24 hours if time is of the essence.
Get in touch if this is something you may need help with.
Kadmos Consultants offer Immigration Health Checks for businesses employing foreign nationals and routinely assist with Resident Labour Market test, Sponsor licence applications, Tier 2 initial applications, extensions and ILR.