The answer depends on whether an individual has a time limited check or a non-time limited check. Additionally, it will depend on a business’ resources and the volume of people requiring a check. For instance, if an individual has evidence of their British citizenship, indefinite leave to remain, or another form of permanent status then you do not need to carry out any further checks. However, if an individual’s leave is time limited then you will need to mark the date in which their leave expires and then carry out a check before that date to ensure that you are not employing someone whose visa has expired.
At Paragon Law we recommend that you commence the checking 3 months before an individual’s visa expires. This length of time ensures that the individual is aware of what is happening and enables them to sort out relevant processes, e.g., talk to their legal representative or allow their sponsor to prepare their application. You need to ensure that the application has been submitted prior to the person’s visa expiring, once you receive this confirmation then you can proceed with the ECS.
If the staff are paid by the agency, then it is the agency’s responsibility to ensure that they have the right to work in the UK. Make sure that you have this in your contract in order to mitigate against any possible implications.
However, it is important that you have checked that the agency has carried out these right to work checks. This is because if you have an unannounced visit at your business premises and it turns out that the agency workers do not have the right to work in the UK then you are still likely to face reputational damage.
If someone applies to extend their visa very close to when their leave expires and you’re not getting a positive ECS check or a positive verification notice (PVN) and someone is insistent that they have made an immigration, and you are aware of the delay in the UKVI’s system then you are in a difficult position.
It is important to encourage everyone to apply for a visa extension as early as they can – we recommend applying for an extension at least one month in advance.
However, if you do find yourself in this situation, we advise that you try and get as much evidence as you can to prove that their application has been made. You should then put this on file and explain why you’re not letting that person go or suspending them (e.g., you know that the ECS check can take up to 28-days to be updated). Ask the individual to provide as much information as they can to show that they have the right to work in the UK, evidence can include:
The email confirmation from the UKVI confirming that their application has been submitted.
The email receipt from the UKVI confirming that they have paid for their application.
A digital download of their immigration application.
It is always better to do a right to work check than to not do one at all. So even if you are creating a share code after you have employed someone at least it shows that you have done one.
When someone is given a dependent visa, they will also be given a letter confirming that they have been given status as the dependant of XYZ. If you have any concerns about an individual’s dependent status, then it is worth asking for this letter. It is worth bearing in mind that this letter does not act as their status, rather you can only use it to link the individual to a dependent. Usually, these individuals’ leave will line up with one another.
If the visa has been approved from outside of the UK, then applicants get a letter attached to their passport. Since this letter is sent out digitally it means that we can view the in-country letter. The difference between in-country and out of country visas is that out of country visas specifically state when they can collect their BRP. In the cases where a visa has been approved from outside of the UK, but the individual does not have this letter, then the individual may only have the 3-month endorsement on their visa as dependents to enter.
When assessing the genuineness of a dependent visa you need to consider that many women will continue to use their maiden name after marriage, and so, you may want to request their marriage certificate to prove their relationship.