We are a UK based employer. One of our employees holds a visa which is about to expire. We know that we need to complete a repeat right to work check. Our employee has given us a letter from his solicitor which confirms that he has submitted and application to the Home Office or a new visa. This hasn't yet been granted so he is unable to provide us with a share code. Will the letter be enough for the time being?
It is important to remember that if a visa holder has man an in-time application in the UK for a new visa then their permission to stay and their right to work will usually be extended automatically until the Home Office reaches a decision on the new applicant. However, a letter from a solicitor will not be enough to complete your repeat right to work check and will not provide you with a statutory excuse against liability for a civil penalty.
It does however provide helpful information which should assist in confirming that your employee does have an ongoing right to work. If the letter confirms that an application for further leave to remain has been submitted to the Home Office prior to the expiry of your employee's current leave to remain, then they will have an ongoing right to work under s3C of the Immigration Act 1971.
While the application is outstanding, your employee will not be able to provide you with a share code to prove his right to work.
The correct course of action is the action for you to take is to prepare and submit and application to the Employer Checking Service (ECS).
In these circumstances we would recommend retaining the employee in employment on full pay until the result of the ECS check is received.
If the result of the ECS check is positive, then they will be able to continue in employment. A Positive Verification Notice will provide you with a statutory excuse against liability for a civil penalty. This will be valid for six months.
If it is negative, then you will then need to take urgent action to try to resolve the situation and may need to commence a dismissal process. You should take specialist advice at this stage.
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