As a migrant worker in the UK, it is imperative not to jeopardise your immigration status by breaching the conditions of your leave. If you have recently applied for a visa extension, as long as you did so before your current leave expired, then your legal status will be assured while you are waiting for a decision. Likewise, if you have made an application to switch to a different visa type, and this is permitted under UK immigration law (remember not all visas can be switched), then your leave will simply continue while the Home Office makes its decision. In this article, we will focus on the question of whether it is possible to work in the UK while waiting for a visa application to be processed.
Understanding Section 3C Of The Immigration Act 1971
Section 3C of the Immigration Act deals with the specific scenario of an individual who is applying for a variation of leave (i.e. they have made an application to the Home Office for an extension or new visa). It states the following:
“Continuation of leave pending variation decision
(1)This section applies if—
(a)a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b)the application for variation is made before the leave expires, and
(c)the leave expires without the application for variation having been decided.
(2)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(a)the application for variation is neither decided nor withdrawn,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, 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)
(c)an appeal under that section against that decision, brought while the appellant is in the United Kingdom,] is pending (within the meaning of section 104 of that Act)
In other words, as a migrant in the UK, the rights you have under your current leave will continue as long as you made an application to the Home Office before that leave expired. This extension of your rights will continue until the application is decided or withdrawn, or there is an ongoing appeal of a decision.
This means that if your current visa allows you to work, then you will be able to continue working according to the same conditions. Hence, if you are currently on a Tier 2 skilled work visa, and you have applied for an extension, you will be able to work legally with the same employer. Paragraph 224 of the current Tier 2 immigration rules guidance confirms this; “You can continue working while we are considering your extension application, provided you submitted the application before your previous leave expired”.
Understanding The Current COVID-19 Exemptions On Permission To Work In The UK
Ordinarily, by submitting an application for a new visa or an extension after your current leave expired, this would be a breach of the immigration rules and your legal status would not continue. There is an exception to this, however, due to COVID-19. Specifically, if your leave expired between 24th January 2020 and 31st August 2020, according to the current immigration guidance on COVID-19, “there will be no future adverse immigration consequences if you didn’t make an application to regularise your stay during this period”. In other words, you will not be classed as an overstayer if your leave expired during this period of time.
Another COVID-19 exemption states that those waiting for a decision on a Tier 2 or Tier 5 application can start work if certain conditions are met. The guidance states, “If you’ve applied for a Tier 2 or 5 visa and are waiting for a decision on your application. You can start work before your visa application has been decided if:
- you’ve been assigned a Certificate of Sponsorship (CoS)
- you submitted your application before your current visa expired and you show your sponsor evidence of this
- the job you start is the same as the one listed on your CoS
- If your application is eventually rejected as invalid or refused your sponsor will stop sponsoring you and you must stop working for them”.
This acknowledges that applications may be delayed as a result of the COVID-19 pandemic, and it is possible to work on the proviso that you meet the above criteria.
How Can I Prove To My Employer That I Am Still Able To Work If My Visa Has Expired?
Employers are legally required to check that the employees they sponsor have the right to work. If your existing visa has already expired, if requested you can show your employer an official Home Office receipt of your application. If this is not acceptable, then they can use the Home Office’s online Employer Checking Service. This is designed to be used where you, as an employee:
- cannot show your documents because of an outstanding appeal, review or application with the Home Office
- have an Application Registration Card
- have a Certificate of Application that’s less than six months old
Final words
In general, if you are applying to switch your visa or to extend your leave, and your current visa allows you to work, then you can carry on doing so while you wait for a decision, as long as you applied before it expired. At any stage, if you are unsure if you have the right to work, it is always advisable to err on the side of caution and check with an immigration lawyer. An immigration Solicitor will be able to explain your overall immigration and visa options based on your individual circumstances and your future plans.
