Your Right to Work while waiting for a Visa Application

When you are nearing the expiry date of your visa, your employer may request for proof that you can continue working lawfully.

Many clients, after submitting and waiting for a visa application or extension, have explained the fear of losing their jobs if they are unable to produce a new visa or Home Office letter proving permission to work immediately.

The increased Home Office civil and criminal penalties for employers and employees who are caught to be involved with Illegal working have inevitably caused most companies to be very cautious when hiring or retaining migrant workers.

This is reasonable grounds to worry about getting into a similar situation while you are waiting for, or in the application stages of applying for a new visa. Avoid this stress and any employment issues by getting assistance from QC Immigration.

Can I Work While Waiting For A Visa Application?

In layman's terms, the immigration rules state that, as long as the switching or extension visa application is made before the current visa expires, the Applicant's current leave is extended until a decision is made.

This means that you will continue to have the right to work in the UK while waiting for the decision of your visa application/ visa extension. Unless the decision is made to not grant you a new visa, or your application is not successfully completed, your employment situation should not be affected.

If, however, you have not previously had a valid visa that allows you to work, you will not be permitted to start work in the UK until you have received a positive decision from the Home Office on your pending application.

If you work while waiting for the results of your UK Visa, you risk being criminally prosecuted, as well as risking jeopardising pending/ future immigrant or visa applications.

If you are applying for indefinite leave to remain after five years of working in the UK with valid work visas, it will be possible for you to remain and continue working in the UK as long as you have applied for ILR before your current visa expires. If your work visa has expired before you have applied for ILR you will no longer have the right to work in the UK.

The relevant rules come under 3C of the Immigration Act 1971. This article seeks to highlight the rights to work and reside in the UK acquired under 3C of the Immigration Act 1971 (as amended Immigration Act 2014).

The Immigration Law

This rule prevents you from being an 'overstayer', remaining in the country until a conclusion has been reached on your visa status. It is important to be aware that this will only apply if the application was submitted before the expiry of your current/ previous visa.

Section 3C, what does it mean?

Section 3C leave is designed to prevent anyone who makes an application to the Home Office to extend or change their leave within their designated time frame from becoming an overstayer. This is valid while any administrative reviews they have or they are entitled to are pending.

Section 3C of the Immigration Act 1971 states: Continuation of leave pending variation decision

This section applies if—

(a) You as an applicant have limited leave to enter or remain in the United Kingdom

(c) You have applied to the Secretary of State for variation of the leave.

(b) The application for variation is made before the leave expires.

(c) Your leave expires without the application for variation having been decided, or a solid conclusion drawn.

The leave is extended by virtue of this section during any period when—

(a) The application for variation is neither decided nor withdrawn,

(b) An appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought [F2, while the appellant is in the United Kingdom] against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission).

There are some exceptions to 3C, namely those who have acted in breach of immigration Rules or they may have submitted their renewal after the expiry of the current visa.

Who does Section 3C continuation of leave apply to?

Note that section 3C rights apply only to UK visa applications under the Immigration Rules.

Prior to the new EU Settlement Scheme, it did not apply to EEA Residence Card or Permanent Residence applications under the EEA Regulations.

How can an employer check my right to work while waiting for a Visa Application?

Normally, our clients' employers are satisfied with their checks once we produce the Home Office receipt, acknowledgement letter or Certificate of Application.

With the Home Office reference number, employers can also check the migrant worker's status through the Employer Checking Service

https://www.gov.uk/employee-immigration-employment-status

Working in the UK with a Student Visa

Your student visa expires four months after the end date of your course (unless your course was shorter than 12 months, in which case your student visa expires 2 months after your course ends).

You will be able to use this visa to work in the UK, both throughout your course and for the four-month period while it remains valid afterwards. You will be able to work full-time on this temporary basis after your studying has been completed.

If you would like to remain in the UK after your student visa expires, contact QC Immigration for expert advice on which visa option is right for you.

Working in the UK with a Graduate Visa

The graduate route visa is designed mainly for students from an international scholarship agency, or international students. This visa would be applicable if the applicant wanted to work in the UK for two years (three for PhD students), after completing their degree course qualification.

In order to work in the UK under the graduate route visa you will have to fit certain criteria;

• You must have successfully completed your degree/ qualification
• You must have held a student visa that was still valid at the time of your application
• You must have applied for the visa whilst in the UK
• You must have not previously been granted permission with the Doctorate Extension Scheme (DES)
• You must have studied your course whilst holding a valid passport and student visa.

Can I work while waiting for a Graduate visa?

You may work full-time on a temporary basis provided that:

• your Graduate visa application is still being processed by the Home Office,
• and you applied for a Graduate visa when your Student Visa was valid and before it expired.

Once you've been granted your Graduate visa, you are able to work on a permanent basis. Once your Graduate visa expires, consider the requirements you might have to meet for a Skilled Worker Visa, in the case you decide you want to extend your stay in the UK.

How to know when your visa is going to expire?

The UK Home Office will not give you a reminder that your visa or leave is going to expire. In order to work out the expiry date of your visa, you can check your biometric residence permit, or any stickers/ stamps on your passport.

You should make sure to note that the date that your leave expires will be based on your current visa as opposed to the expiry date on your Biometric Residence Permit.

If you are an overstayer or are about to become one, contact QC Immigration today for expert advice and representation.

QC Immigration can help!

QC Immigration can represent you in dealing with your employer's checks.

We can advise you to ensure your pending visa application does not hinder your ongoing employment or accepting of a new job offer.

We also assist employers in ensuring their recruitment and retention policies are compliant with immigration laws.

We offer expert advice and representation; contact QC Immigration today.

• Book a consultation with us to get advice that is tailored to your circumstances.
• If you are looking for immigration advice, check out our guide on how to find the best immigration lawyer for your needs.