Visa Expiries
If someone has an end date on their visa and wants to stay in the UK after that date, they must apply:
- to extend that visa, or
- to switch into a different visa route, or
- for settlement (indefinite leave to remain).
Applications can often take months to be granted so, as long as the staff member has submitted the new application before their current visa expired (known as an 'in-time application'), they can remain in the UK on the basis of their previous permission, even after it has expired, until they receive a decision on the new application. This is in line with Section 3C of the Immigration Act 1971.
If the application is due to expire imminently, the staff member may wish to pay extra for ‘value added services’ which will shorten the wait for a decision.
Note: no follow-up right to work check is required for existing staff who hold Pre-Settled Status under the EU Settlement Scheme.
How do we deal with visa expiries?
- The Compliance Team receives a regular report which shows any staff members who have a visa which expires in the next three months, and will remind departments/institutions of staff members affected.
- The person’s line manager must meet with them as soon as possible to discuss their intentions (i.e. will they be taking one of the actions above, or leaving the University).
- If the person is staying in the UK, the Compliance Team follows a three-step process which ensures full compliance with legislative requirements whilst also allowing the staff member to continue working for the University without any interruptions or delays.
The member of staff must provide evidence of having made a new visa application to the Compliance Team:
- A copy of the online application, and
- Proof of payment, and
- A signed consent letter (Word download) giving permission for the Compliance Team to contact the Home Office to request an employment check (see step 2 below).
The Compliance Team may also accept UKVI visa acknowledgment letters – this is assessed on a case-by-case basis.
Important: once an applicant has submitted their new visa application, they cannot leave the Common Travel Area (the UK, Ireland, Jersey, Guernsey and the Isle of Man) for any reason until the application is granted; if they do, the application will be automatically withdrawn by the Home Office.
The Compliance Team will undertake a check with the Home Office Employer Checking Service (ECS) which provides the University with a limited 'statutory excuse' to employee the individual whilst the visa application is pending.
Note: The ECS check should not be undertaken by departments/institutions, unless the person is a casual worker.
A positive result
This provides a statutory excuse to employ the individual for a further 6 months on the basis of their previous permission. This should provide plenty of time for the new application to be granted, and for the department/institution to undertake a follow-up right to work check and provide this to the Compliance Team (see step 3 below).
Note: if the visa application decision is delayed, the HR Compliance Team can carry out a new ECS check to obtain a further 6 months’ statutory excuse.
A negative result
In the event that the ECS check is negative, which may be the result of the individual having had their visa application refused, the University has no 'statutory excuse' to employ the person. In those circumstances the Compliance Team will contact the department and the relevant HR Schools Team to discuss what action needs to be taken. This could lead to dismissal of the individual on the grounds that they have no right to work in the UK. A formal meeting must be held with the individual to establish their right to work status before any action is taken. The Immigration and Compliance Manager must be present at this meeting.
Once the visa application has been granted, the department/institution must complete a further right to work check using the person’s digital status. The verified status document must then be sent to the HR Compliance Team.
Visa rejections and refusals
Visa rejection (invalid applications)
This is not a visa refusal, but instead a return due to a problem outside the person’s control, such as payment being incorrectly processed or missing supporting documents. The person will be contacted by the Home Office to allow them to correct the error or omission within 10 working days. Provided they do so, this will then be classed as an ‘in time application’ and the person will therefore be allowed to continue to work as normal.
You must inform the Compliance Team of an invalid application so that right to work can be monitored.
Visa refusal, administrative review and appeal
A visa refusal occurs when someone has applied for a visa for which the Home Office does not deem they are eligible. Their continued right to work will depend on whether their current permission is still valid and/or whether they have the right to an administrative review of, or appeal against, the refusal (the visa application decision letter will confirm which, if either, is available).
The Compliance Team has a detailed process for managing visa refusals, and you must inform them immediately if this happens.