Briefing: an employer’s guide to section 3C leave

This guide outlines the steps UK employers and their foreign national employees should take when a visa is approaching expiry and a new immigration application is pending.

I’ve co-written this with my employment specialist colleague Gillian Moore, because often there is a real tension between the advice an employee may be getting from their immigration lawyer and the advice an employer may be getting from their employment lawyer. But there doesn’t need to be. These days there are much better right to work checking systems in place than there used to be. If both employer and employee are informed and organised about the procedures to follow, there is no reason for this process to be fraught.

We will look at the legal protections available under section 3C of the Immigration Act 1971 (known as “3C leave”) and how this interacts with right to work checking guidance. We will identify compliance risks and dismissal considerations for employers, and end by offering some practical tools for HR teams.

Quick Guide – verifying right to work on 3C leave

If an employee has made an in-time application and their previous leave permitted work:

– Ask them to generate a share code (if they hold an eVisa).
– Use the Home Office online right to work service to check their share code and verify their status. You will need their date of birth.
– If no share code is available, submit an Employer Checking Service request using the employee’s pending application reference number (look for the UAN which is a 12-digit number beginning with 1212 or 3434).
– A valid Employer Checking Service result or online check will provide a statutory excuse for six months. 

What is 3C leave?

Section 3C of the Immigration Act 1971 automatically extends a person’s immigration permission if they submit a valid “in-time” application from inside the UK to extend or vary their leave. An in-time application is an application submitted before midnight on the date that person’s current permission expires.

Example

Agnes has valid immigration permission due to expire on 19 May. Agnes submits an application for further permission on 19 May. Agnes has made an in-time application. Agnes benefits from 3C leave.

Boris had valid immigration permission due to expire on 19 May. Boris submits an application for further permission on 20 May. Boris has not made an in-time application. Boris does not benefit from 3C leave.

3C leave continues until the application is decided, withdrawn, or treated as invalid, including any appeal or administrative review period. 3C leave preserves the right to remain in the UK and, crucially, to continue working under the same conditions as their previous visa. If a person on 3C leave exits the Common Travel Area while their application is still pending, their application will automatically be withdrawn and 3C leave will end.

Right to work during 3C leave

Employees on 3C leave retain the right to work under exactly the same conditions as their previous visa. Any restrictions that applied to a person’s right to work will continue throughout 3C leave, until they are supplanted by a new grant of immigration permission.

Employers must not assume a loss of permission or the right to work based solely on the expiry date of the employee’s visa.  An employer must take steps to verify an employee’s status before taking any decisions regarding their continued employment. Employees should ensure they co-operate with their employer in this process.

Verifying right to work: process and best practice

The method of verification of continued permission to work depends on whether the employee is an eVisa holder with access to their digital UKVI account:

• If the employee is an eVisa holder, they will be able to prove their status immediately during 3C leave using the online share code system.
• If the employee is not an eVisa holder, or cannot generate a share code, the employer must contact the Home Office’s Employer Checking Service. Bear in mind that the Employer Checking Service can take up to five working days to return a response.
• If either an employer or an employee is ever in doubt about how to approach a right to work check, it’s good practice to look up the latest Home Office guidance on right to work checking procedures.

Best practice tips for employers

• Track visa expiry dates and build in reminders well in advance of expiry.
• Request early confirmation from employees that an application is being prepared for submission.
• Think about checking in perhaps three months before expiry, and if appropriate, again one month before expiry. Use your judgement on whether further check-ins are necessary.
• If the employee’s application is still pending on the eve of their expiry date, request a share code (if available) or submit an Employer Checking Service request.
• If you get to the employee’s expiry date and still haven’t been able to verify right to work via share code or Employer Checking Service, ask for evidence of application submission, such as a UKVI payment receipt or email confirmation. If you are reasonably satisfied that they have submitted an application, you should continue to employ pending the outcome of the Employer Checking Service.
• Retain all records of right to work checks, share code results, or Employer Checking Service responses.
• Ask the employee to pro-actively keep you updated on developments.
• Schedule follow-up checks before expiry of your statutory excuse.

Legal framework and case law on right to work dismissals

Employers must be particularly cautious not to make assumptions about immigration status. They must verify the right to work through the appropriate channels. This obligation applies equally to sponsored and non-sponsored workers.

Diligent employers sometimes rush to dismiss an employee where there is any doubt about their right to work.  This happens because diligent employers are, understandably, very concerned about being found to have employed someone illegally and feel under pressure to take action.

However, when an employee’s visa is due to expire or has expired, employers must take care not to act prematurely. Like all employees in the UK, sponsored workers who have been employed for at least two years are protected against unfair dismissal. They are also protected against discrimination from day one of their employment (and even before).

While illegality (e.g. no right to work) is a potentially fair reason for dismissal, it will only apply where employment would actually break the law. It is not enough that the employer simply thinks it might. 

That said, an employer can fairly dismiss an employee for ‘some other substantial reason’ where it has a genuine and reasonable belief that continued employment is illegal. That belief must be based on proper investigation and evidence, not assumptions. A dismissal based on assumptions will likely be unfair and may also be discriminatory on grounds of race or nationality.

Work Rights Centre has produced resources for people whose rights at work have been breached.

The cases below illustrate the risks of hasty or uninformed action by the employer and the importance of following fair procedures. They show that:

• Lack of documentation does not automatically justify dismissal.
• Employers must take reasonable steps to verify the employee’s status.
• Dismissals can still be fair if the employer has genuinely tried to confirm the employee’s right to work, but is unable to do so and follows a fair process.

Employers should rush to investigate any right to work issues, but should not rush to dismiss until they have enough information to confirm that dismissal is either unavoidable or is a reasonable course of action in the circumstances.

Baker v Abellio London Ltd [2017] UKEAT 0250_16_0510

Mr. Baker, a Jamaican national, had lived in the UK since he was a child and was permitted to live and work in the UK without any immigration restrictions. When he failed to produce proof of his right to work, his employer dismissed him. The Employment Appeal Tribunal held that Mr Baker could not have been dismissed fairly on grounds of illegality, because it was not illegal for Abellio to employ him. They may have been able to fairly dismiss him for some other substantial reason, namely his repeated failure to produce the requested documentation, provided they conducted a reasonable investigation and followed a fair process.

Nayak v Royal Mail Group Ltd [2016] UKEAT 0481_13_3003

Mr. Nayak’s visa was expiring and he failed to provide evidence of a new application despite repeated requests. Royal Mail contacted the Home Office but received no confirmation. The tribunal held that Mr Nayak’s dismissal was fair, as the employer acted on a genuine and reasonable belief and followed due process.

Mr F. Afzal v East London Pizza Ltd [2018] UKEAT/0265/17/DA

We wrote this case up at the time, Mr. Afzal submitted a timely application but failed to provide his employer with confirmation before his visa expired. His employer dismissed him immediately without offering an appeal. The tribunal found the dismissal was procedurally unfair. Employers must give employees a chance to explain and provide evidence before taking action.

RAMFEL v Secretary of State for the Home Department [2024] EWHC 1374 (Admin)

The High Court found that the Home Office’s failure to provide proof of status to those on section 3C leave was unlawful. Many were left unable to prove their right to work. Employers should not assume lack of permission where no evidence is provided and should use the Employer Checking Service to verify status. Free Movement covered this one in detail.

Case studies: practical scenarios

Case study: inappropriate dismissal – employer acts too soon

Meena has been employed under a Skilled Worker visa for three years. She submits an in-time application to extend her visa. She informs HR and provides evidence but cannot generate a share code. Her employer dismisses her the day after her visa expires without making an Employer Checking Service check. This dismissal is likely unfair.

Case study: appropriate dismissal – fair process

Pavel’s graduate visa expires and he does not provide his employer with evidence of a pending application. HR contacts Employer Checking Service, which confirms no application is on file. HR follows a fair process, meeting with Pavel to offer him an opportunity to explain before terminating employment. This dismissal is likely to be fair.

Templates and Tools

Sample HR policy wording

Where an employee submits a valid, in-time application to extend or vary their immigration permission, they will continue to have the right to work under section 3C of the Immigration Act 1971.

In such cases, the employee must provide:

• Confirmation of the application having been submitted, and
• A share code (if applicable) to enable a right to work check using the Home Office online system; or
• Permission for HR to submit an Employer Checking Service request.

If the employee does not provide evidence of a pending application and their right to work cannot be confirmed, the matter will be reviewed and may result in dismissal.

Sample staff communication template

Subject: Visa Expiry and Right to Work Confirmation

Dear [Employee Name],

Our records show that your current immigration permission is due to expire on [Date]. Please confirm whether you have submitted an application to extend or vary your visa.

If  you have submitted an application, please provide a share code for us to verify your right to work online.

If you are unable to generate a share code, please provide evidence of application submission (such as a UKVI payment or acknowledgment receipt and application reference number), and let us know so that we can carry out a verification check with the Home Office Employer Checking Service.

If you have not yet submitted an application, please confirm whether you intend to do so, and if so on what date.

We appreciate your assistance in helping us meet our legal obligations and ensuring your continued employment.

Kind regards,
[HR Representative Name]