My Employee Lost Their Right to Work: What To Do

The UK Government is committed to eradicating illegal work in the UK. Having employees with no right to work is a punishable offence.

For further information on Right to Work, follow-up checks, and other immigration matters, visit our website or call us on 0333 305 9375 for immediate help and assistance with your situation. We’re here to help you in person, via the phone, or online.

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    How Does My Employee Lose Their Right to Work?

    Employees lose their right to work in the UK due to the limitation of their immigration status. Employees under immigration control have time-limited leave to work in the UK. They lose their right to work when their leave becomes invalid due to expiry date passage, cancellation, revocation, or curtailment.

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    How Does It Affect Me?

    As an employer, you must ensure that your immigrant workers have the right to work and are not working illegally. If any of your employees are found to be working illegally, and you have not done a follow-up check or contacted the Home Office to verify the employee’s right to work, you may be liable to the following sanctions:

    • You may be issued a civil penalty of £20,000 (or less). Your penalty fee depends on the level of your breach.
    • You may be liable to a criminal conviction resulting in a prison sentence (maximum of five years) and an unlimited fine.
    • You may get a temporary closure notice of your business and a compliance order.
    • You may be disqualified as a director.
    • You may lose your sponsor licence.
    • Your earnings from illegal working may be seized.
    • Your licence for alcohol and late-night refreshment, taxi and private hire vehicle may be reviewed and revoked.
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    How Do I Verify My Employee's Right To Work?

    You must take the responsibility to stay updated on your employee’s duration of leave permission in the UK. When your employee’s visa is about to expire or expires, the first line of action is to ascertain the state of your employee’s right to work. Thus, you must take some follow-up actions to avoid making an unfair dismissal or having an illegal worker.

    An immigrant worker must apply for an extension for immigration permission before their leave expires. The application will be considered ‘in time.’ Your employee’s right to work will stay effective until the outcome of the application.

    During this period, your employee must present evidence demonstrating they have applied for further leave and awaiting another visa when the current one expires. In cases where their application is under appeal due to application denial for further leave, the employee must also be able to prove it.

    If your employee is unable to present evidence of the right to work when their visa expires, it may be due to a delay in getting a new visa. Thus, you must do a follow-up check to avoid being permissible to a civil penalty.

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    When your employee’s leave expires and unable to present evidence of further leave, you must request one of the following documentary evidence from your employee:

    • Proof of in-time application for extending the permission to remain in the UK.
    • Proof of pending administrative review or appeal against the decision on their application.
    • Proof of being a long-term law-abiding resident in the UK since their migration before 1988. This is applicable when your employee is unable to present adequate documentary evidence.

    If your employee submits any of the documents above, it means they applied for further leave in due time, and their application is under review. As a result, you get a grace period of 28 days. The grace period means that your statutory excuse remains effective for 28 days from the leave expiry date of your employee.

    If your employee’s application is successful, they must give you proof that their administrative review or appeal or application (as the case may be) has been granted permission to remain in the UK. Also, you will receive a Positive Verification Notice from the Employer Checking Service (ECS) within the grace period.

    Once you receive the PVN, you can proceed to conduct a right-to-work check to get your statutory excuse for the period of the employee’s immigration permission to work in the UK.

    Employees under the EU settlement scheme will have the right to work until they get a final decision. While awaiting a decision, they must be able to prove their application with a Certificate of Application (CoA). Ensure to verify the CoA from the ECS if it is digital.

    Work with our expert immigration lawyers to receive assistance in verifying your employees' immigration status. Contact Us

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      What If My Employee Cannot Provide Proof of Leave Application?

      If your employee is unable to provide proof of outstanding appeal, administrative review, or application, you must verify their status with the Home Office. Ensure to inform your employee that you want to carry out a verification request and check on their status before taking such action.

      Obtain information on when they submitted or posted the application, appeal, or review. Send a verification request to the ECS 14 days from the date of application or appeal. The 14 days is required because the registration period of applications, appeals, and reviews with the Home Office takes up to 14 days.

      Obtain information on when they submitted or posted the application, appeal, or review. Send a verification request to the ECS 14 days from the date of application or appeal. The 14 days is required because the registration period of applications, appeals, and reviews with the Home Office takes up to 14 days.

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      Employer Checking Service

      The Employer Checking Service is a mechanism to verify from the Home Office if workers with outstanding appeals or applications have the right to work. In situations where employees cannot provide documents proving their application or right to stay, you can verify with the Home Office using ECS.

      Should I Dismiss My Employee Immediately?

      It is normal to want to take a dismissal action to avoid getting sanctioned. However, you need to take precautionary steps to avoid unfair dismissal. You must follow the fair process for employee dismissal.

      If your employee has been under your employment for more than two years continuously, they have the right to appeal. They may appeal for unfair dismissal and discrimination if they find the termination of their employment contract unfair, regardless of not having a valid right to work.

      If you have any questions about your employees' immigration status, our team is happy to assist. Contact Us

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        How to Avoid Unfair Dismissal

        The fact that the ECS has issued you an NVN indicating your employee’s loss of the right to work does not negate the place of investigation and dialogue with the employee.

        You need to conduct a fair investigation through a one-on-one meeting with the employee to discuss the situation. You will be providing a fair hearing for the employee to give reasons for the situation and rectify the problem if they have already applied for further leave and are facing challenges.

        The employee must get a notification for the meeting on time to enable proper preparation before the meeting. The notification should provide information on the purpose of the meeting, likely consequences of action, venue, and time. You may also attach evidence of your claim, such as a copy of the NVN.

        The notification should enable the employee to gather enough evidence and information to prove their situation. If the employee needs time to provide additional evidence based on the outcome of the meeting, you may give the employee 1 to 2 days to prove that they still have the right to work.

        If the employee can prove their in-time application for further leave before the expiry date of their visa, you must suspend the dismissal process and refer to the ECS for further investigation.

        If the ECS feedback is an NVN or the employee cannot provide acceptable proof of right to work, you may proceed with the dismissal. Ensure to give reasonable facts for dismissal and provide the employee with an opportunity to appeal the dismissal.

        Why Should I Provide an Opportunity for Appeal?

        Employees have a right to appeal. If your employee wishes to appeal against your decision, you must provide the process to carry it out. They would notify you in writing of the reasons for the appeal—failure to let the employee appeal may result in sanction if taken to the employment tribunal.

        The appeal must be conducted impartially and without delay by an official that is neutral to the case. You and the employee must agree on the venue and time for the appeal.

        Aside from respecting the employee’s right to appeal, an appeal may help you demonstrate that the termination of the contract was done through the appropriate process. It would be helpful, especially if the worker had a valid right to work at the time of investigation but could not provide proof. Dismissing an employee with a right to work is a punishable offence.

        You must contact the ECS for verification if the worker provides evidence of in-time further leave application. If you get a PVN, you must revoke the termination of the employee’s contract.

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        How Can Total Law Help?

        The UK Government is determined to curb illegal working, and employers are under an obligation to help prevent it. To avoid being at the risk of a civil penalty and other sanctions, you can work with a Total Law lawyer for assistance to verify immigration status, investigate circumstances, and fairly dismiss.

        Total Law is a team of experienced immigration lawyers, and we fully understand UK immigration law. We can guide you on the steps to ensure you employ illegal workers, consistently check employees’ current status, and understand the limitations or conditions of immigration permissions.

        We are well equipped to handle legal issues such as appeals regardless of the case’s complexity. Our services extend to other employment immigration matters such as sponsor licence and responsibilities.

        Visit our website or call us on 0333 305 9375 for immediate help and assistance with your situation. We’re here to help you in person, via the phone, or online.

        Our expert lawyers can answer any of your questions about your employees' immigration status. Contact Us

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