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 they invent their own system of “ensuring” that everything is fair – for example, ask the employee three times a day if they have any news about the visa. The tougher employers may suspend the employee from work 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 suspending or dismissing the employee is not a reasonable response either.
I hope the checklist below will be helpful for any business owner or HR professionals, who want 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 scenarios you may have.
Step 1 – keep copies of ID documents
Before the employment start date or on the first day of employment, take a copy of the details page of the employee’s passport. Do so even if it is a British passport. If it is not a British passport, take a copy of their visa. The visa may be either a vignette (a sticker) in the passport or a Biometric Residence permit. It will have an expiry date. Take a note of it.
If your employee has a Biometric Residence Permit take copies of both sides of the card. Make sure that the person who copies the documents signs the paper copy with his name and date and confirms that they checked the identity of the employee. This is important.
Step 2 – keep an eye on the visa dates
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. This should 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.
Step 3 – prompt your employee for a visa extension
After the first reminder, two months before the expiry date, prompt your employee to take action. It is advisable that they apply as early as possible, which is normally 28 days before the expiry date. The reason for it is that the Home Office takes two to four weeks to add the application into the system and only then confirms that the application is valid.
Step 4 – check if the application was made in time
Ask your employee about the date they submitted the application. As long as it was submitted before the expiry of the visa, they are OK. They would have a print-out confirmation showing the date the online payment was made. Keep a copy of this document. It will be important for the next 28 days. Remember, that your employee’s biometric appointment may be at a later date. This is normal and does not invalidate the application.
Step 5 – get a Positive Verification Report
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 a period during which you will not be fined. This gives the Home Office time to process applications made in time.
Once you’ve done the positive verification, keep the notice safe. It is valid for the next six months unless the visa is refused and you become aware of it.
What happens after six months
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. But 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. If this happens you or your employee may need legal advice.
Expediting visa applications
Note that it is possible to expedite most visa applications, but it may cost extra. There is premium service for 24-hour decision making for most visas. There is also a 10-business-day service for Tier 2 visa application.
Get in touch if time is of the essence or there is anything 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.