Tier-2 Extension in process - HR questioning visa status

[inlondon123]

Hi,

My Tier-2 visa expires tomorrow, and my employer has already put a request for my Tier-2 extension about 2 weeks back. My wife's visa is also being extended as my dependent with my application.

My wife’s organisation, mainly HR, is raising questions around legality of my wife’s UK work status beyond visa expiry. We have already provided HR, the Unique Application Number of our extension request last week. HR apparently has raised a Employer Checking Service with Home office to check my wife visa status but not got any response from Home office yet.

HR is suddenly now saying that they might not be able to employ her after visa expiry (tomorrow) - mainly because of HR’s fear of breaking immigration law and lack of understanding of whole extension process.

Can someone experienced, please point me to the relevant section of Immigration Rules that states that Tier 2 applicants (and their dependent) visa status remain intact when they have applied for visa extension before the expiry. I want to show my wife’s HR – that it is wrong to dismiss my wife – because we haven’t broken any immigrating law and we are following the right process of home office.

Is there anything else that I can provide to HR to give them some assurance please?

Any urgent help with be appreciated - thanks!

[vinny]

Section 3C.

[inlondon123]

Thanks Vinny – appreciate your quick response!

Yesterday, my wife provided the details of 3c section to her HR.
HR is insisting that they will base their decision only on the outcome of Employer Checking Service. If it’s negative, she won’t be allowed to work. So basically, it seems it will depend on reliability of the Employer Checking Service and how thorough the HR was while providing details in the service request.

Is there anything else that senior members can recommend that we can do on our side in the meantime?
Thanks in advance

[vinny]

See also Sponsors, paranoia and unfair dismissal.

A possible complication is that prior to the UKVI's verification that the submitted application is valid, they may be unable to confirm an applicant's right to work.

[hitsis]

If the employee submitted the visa application before expiry date, then the employer will get 28 days grace period of statutory excuse.
check p21-22
https://www.gov.uk/government/publicati ... yers-guide

[vinny]

Thanks for the info! So, the employer may and should postpone the checks for at least 28 days from the date of expiry, thereby giving the UKVI some time to verify the validity of the submitted application.

[Frontier Mole]

ECS take a simplistic approach because they can't postpone a reply beyond the SLA.
If an in time visa application has been made it is assumed 3(c) is engaged regardless of the basic checks being applied to the application.
They will give a positive verification as long as visa application shows on the system.

[vinny]

Thanks!

So, it all depends on when an application will show up on their system.

[Frontier Mole]

Normally everything shows up on the main system in about 5 working days. There is also a sub system that shows very basic information to identify applications made / fees paid before they go onto the main system. ECS I believe have access to the sub system.

[vinny]

Good to know. Thank you!

[hitsis]

Normally everything shows up on the main system in about 5 working days. There is also a sub system that shows very basic information to identify applications made / fees paid before they go onto the main system. ECS I believe have access to the sub system.

The problem with ECS is that it takes up to 5 days to get the result. So the employer can't make sure the applicant can continue work during this period. That's why the 28 days grace period is important to protect the employer from civil penalty.

[inlondon123]

Folks, some good news from my side.

The ECS result came positive and so HR is happy to continue with employment.

For the benefit of group members - providing some more details for future reference.

Tier-2 extension submitted in-time: calendar day1
ECS initiated: day5
Visa expired: day10
ECS positive outcome: day11

ECS was done based on name, dob, and nationality details only.

Thanks guys for all your support and info!!