Employment whilst awaiting decision for ILR application

[kittykat]

Hi

Just wondering whether anyone else has had any problems with continuing to undertake employment whilst waiting for a decision on an ILR application?
I am applying for ILR after 5 years continuous stay on Ancestry visa - applied in time and payment was processed without a problem.
Under Section 3C of the Immigration Act 1971 we should have the right to continue to work.
However my employer does not recognise this.

Has this happened to anyone else? How did you resolve it?
I can't see a thread about this anywhere else but please feel free to redirect me if I've missed it.

Thanks for reading.

[mulderpf]

Have a look at this post. The fines for illegally employing someone is huge (up to £10,000) and it's understandable that employers would want to err on the side of caution.

[Kitty]

Has your employer called the Employer helpline for confirmation, as in the thread mulderpf linked to?

The current

Comprehensive Guidance for Employers on Preventing Illegal Working

says:

If at the time of the checks the prospective
employee (or employee when conducting repeat
checks) has an application to extend their leave
in the UK outstanding, you should contact the
Employer Checking Service

(page

You could direct them to this document in the first instance!

[Kitty]

Sorry, that's page 8 (accidental emoticon!)

[vinny]

Under Section 3C of the Immigration Act 1971 we should have the right to continue to work.
However my employer does not recognise this.

What justification does your employer have for not recognizing an Act of Parliament?

[kittykat]

Thanks for the replies.

Kitty, my employer has contacted the employer checking service, but chose to send in an email checking form, claiming that the 0300 number was constantly engaged. The employer checking service wrote back to them and stated that 'I cannot confirm that xxx is eligible to work in the UK on the basis of an outstanding application'. On this basis they will not continue to employ me.

I rang the helpline myself and they say this means one of three things: my application wasn't timely (it was); it was incomplete (assume not, as it's been five weeks and no caseworker has contacted me); or it hasn't been logged on the system yet. I think this may be the problem - my application is sitting in a box somewhere and hasn't been put on the database.

Yet I have had an acknowledgement letter, and the payment has been taken.

I have now spoken to the employer checking helping twice, and the Immigration Advisory Bureau (the 0870 number) three times, and each time I get different information. Nobody will put me through to a manager and they refuse to look up my individual case. They don't give reference numbers for the call, and I suspect they aren't giving real names either. It's very frustrating!

Vinny, as mulderpf pointed out, I think my employer is being overcautious and getting advice from an employment lawyer not familiar with immigration law. But it was my understanding too that I am eligibile to work under Section 3C of the Immigration Act 1971.

But all of this means I can't work, and I can see from the timeframes thread (http://www.immigrationboards.com/viewtopic.php?t=43574) that there is a backlog and the UKBA is running very behind with applications. If it does take the full six months and I don't have confirmation of my eligibility to work I am in trouble!

[vinny]

But it was my understanding too that I am eligibile to work under Section 3C of the Immigration Act 1971.

That's my understanding too, as long as the valid application was submitted in-time.

[Kitty]

There has been a recent decision in the Employment Appeal Tribunal about dismissals arising out of an employer's belief that an employee did not have the right to work in the UK. Unfortunately it simply says that as long as the employer has a "genuine belief based on a reasonable investigation", then the dismissal will be fair.

http://www.xperthr.co.uk/article/108989 ... nable.aspx

That's not very helpful to you, kittykat, I know.

However, in that case, the worker had an ongoing appeal dating back to 1997 (I know! ). The UKBA would also not confirm her status to her employer, but as it seems she had originally been employed on a work permit, and by a different employer, her immigration case was somewhat different from the OP.

My thinking in terms of employment law is that if you present the relevant law to your employer, and evidence that your application was in-time and valid, then they will find it more difficult to maintain that they have a "genuine belief" that it would be illegal to employ you.

Does your contract say anything about requirements for confirmation of status?

Have you been suspended (with or without pay?) while this has been going on?

[kittykat]

Thanks for this Kitty - I suspect that my employer can argue that they made all reasonable attempts to investigate my eligibility to work, and in my dismissal hearing I was unable to provide suitable evidence to support myself - they would not accept the UKBA acknowledgement letter as evidence.
Thanks for the link, it's really helpful to know what the precedents in this kind of case are. But I would just like my job back!
I've been dismissed without pay - not suspended.

By the way, that link from vinny to the application forms guidelines is truly terrifying! I wish I had seen this before I submitted my application.

[Kitty]

Not accepting the acknowledgement letter seems weird to me.

When were you dismissed? Were you dismissed without notice? Did you appeal?

Having looked at vinny's link, are you now concerned that your application might not have been valid? The fact that payment has been taken suggests that it was.

[kittykat]

Yes, my employer claims that the acknowledgement letter is evidence of nothing, because it does not state what application it is acknowledging (though it does, it states 'Thank you for the application by the above-named (me) on Form SET (O)'. But I ran out of patience arguing that point).

I was dismissed a week ago, immediately without notice, on the date that my visa expired. I have two weeks in which to appeal the dismissal, but I need to supply the evidence they have asked for - which is confirmation in writing, directly to my employer, that I am eligible to work.

As I posted in this other thread (http://www.immigrationboards.com/viewtopic.php?p=50663) I have now got email confirmation via my MP's office that I am eligible to work, however I do not know whether this will be suitable as it is not directly addressed to my employer.
However I am going to ring the employer checking service in the morning in the hope that they have now 'logged me on the system'.

Am sure my application was valid, was on the correct form, signed everything, passport photos were correct... but who knows now!

[Kitty]

Can I ask how long you have been employed by your current employer?

Did your employer discuss your visa situation with you in the run up to the visa expiry date?

I suggest you appeal anyway, just to keep your options open. Include the email that you have now received, any proof you have of the date your application was sent and/or received, and references to the relevant law.

Your acknowledgement letter confirms that you are making a settlement application (form "SET(O)"). It is therefore proof that you have applied in a category that permits work. However, the point of permission to remain in the UK under Section 3C is that the conditions of your old visa continue to apply until the application and appeal processes are exhausted. It therefore should not matter to your employer what type of application you have made.

Depending on what your contract says about the supply of visa documents and the consequences of failure to do so, you may have a claim for damages (e.g. your lost earnings) against your employer for dismissing you without notice.

If they reinstate you, make sure you ask for the pay you would have received if they had not dismissed you. It may be a battle you don't think is worth fighting, but there should not be any harm in asking.

[kittykat]

Yes, I've been employed by them for eighteen months.

They were well aware of my visa situation, however I don't think they've come across this before (I am the only employee who is not a British national). The confused terminology they use in all their communications certainly supports this.

Annoyingly, they are citing the 'unhelpfulness' of the UKBA as further evidence against me, however there is nothing I can do to make the UKBA respond to our enquiries.

I will appeal, with the evidence that I have.

My contract and the related policy refer to the Immigration and Asylum Act and state that summary dismissal for gross misconduct will be applied if the employee undertakes work without the legal right to do so.
I suspect that this will be what they are using.

Thank you once again for all your advice, it is very much appreciated.

[Kitty]

Yes, I've been employed by them for eighteen months.

This is useful to know because it means that, should it come down to it, you qualify to claim unfair dismissal (which requires a minimum of one year's employment).

My contract and the related policy refer to the Immigration and Asylum Act and state that summary dismissal for gross misconduct will be applied if the employee undertakes work without the legal right to do so.

It is interesting because if you were dismissed under this requirement alone then you may argue that you had not committed the misconduct they complain of: you were not working illegally! (Did they even dismiss you before your old visa actually expired?) There is still the question of their "genuine belief", but I think you are in a stronger position than the lady in the case I referred to earlier.

Let's hope the email sorts things. All the best.

ETA: Do keep all correspondence, notes etc. that relate to the dismissal. If you have a further meeting for the appeal, keep notes from that as well.

[kittykat]

Thanks Kitty.
Yes, they dismissed me on the day that my visa expired, so at that point I had not committed any 'breach' of contract.
I will follow up the appeal and post back here the outcome.
Thanks!

[kittykat]

Post being edited

[kittykat]

Post being edited.

[kittykat]

Just updating on the outcome:
The UKBA has now advised that I am eligible to work. I assume that is as a result of the badgering I did, or just that they caught up with the backlog and logged me on the correct database. I now have a record of my right to work, as well as the ack letter we all get initially. My employer has recognised this and I have been re-instated.
Thanks all for your help.
BTW Apols for editing my earlier posts, I had to check some information and was unable to delete.

[Kitty]

Good news kittykat. Well done

So how long did it take between your applying and the UKBA checking system recognising a valid applicaiton?

[kittykat]

Good question... Six weeks in total.

[Kitty]

Wow. Thanks for the information though.

[9ja4life]

Hello,
I just posted a topic similar to yours, my employment was terminated too by my employer. I think a lot of these employer are very ignorant of the rules , they are mostly concerned about the fines from employing illegal worker forgeting they could pay huge sum too for compensation for unfair dismissal.
I submitted my application a month before my visa expired, went for my biometrics already, but i lost my biometrics letter . So i called the home office to get a newone, meanwhile i gave them the case reference number so they could contact the employee checking service but they chose to terminate my employment instead, giving excuse that it will take 10 days before they get response from HO and by then my 28 days grace would have expired and they could get fine.
I argued that my application was posted a month before it expired and the law states my existing rights to work will continue for a further 6 months.
I expected a big company like mine to know all these rules but they are so so ignorant. Am taking them up on unfair dismissal at the tribunal

Akins