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Suspended from work pending application decision

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mwink
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Suspended from work pending application decision

Post by mwink » Thu Jan 31, 2013 8:22 pm

Hi there.
My partner submitted an in-time application for ILR on 3/1/13 through our solicitors. Received by UKBA 4/1/13.
Her FLR (unmarried partner) was due to expire on 12/1/13.
On 2/1/13 she had surgery and was off sick for 3 weeks (later extended for another 2 weeks).
No UKBA acknowledgment letter received, so employer decided to suspend her without pay, via a phonecall, on 22/1/13 (last day of her original sick note).
Same day she provided her employer with a letter from our solicitor stating that her application was pending, and as such her leave to remain was continued by virtue of Section 3C Immigration Act 1971.
Employer passed this through the HR department, whom would not accept it.
She asked the employer to provide written reasons for the suspension, to which they relied solely on potential illegality.
There was a lack of a proper disciplinary procedure in respect of suspending her.
She told the employer that they should use the UKBA Employer Checking Service to ascertain her right to work. Employer seemed totally oblivious to this, and pretty much refused to use this facility.
She is in the process of writing a formal grievance letter to the employer.

Does anyone have any advice on what her next step should be?

Bildor
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Post by Bildor » Thu Jan 31, 2013 9:49 pm

Seems really unfair.
Maybe u can try referring them to ukba website where it states clearly that ur status continues to be what it was as long as application is submitted before visa runs out.

http://www.ukba.homeoffice.gov.uk/visas ... tiontypes/

wpilr_nov12
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Post by wpilr_nov12 » Thu Jan 31, 2013 10:23 pm

Employers are not required to make use of the UKBA checking facility if the employee cannot furnish proof of right to work. It is pretty normal for employers to take employees off of payroll until such proof is submitted. Acknowledgement letter from UKBA is one such proof.
Please do not send me PM if I haven't sent you one yet.
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mwink
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Post by mwink » Thu Jan 31, 2013 10:46 pm

wpilr_nov12 wrote:Employers are not required to make use of the UKBA checking facility if the employee cannot furnish proof of right to work. It is pretty normal for employers to take employees off of payroll until such proof is submitted. Acknowledgement letter from UKBA is one such proof.
Doesn't that represent an unlawful deduction from salary though? Contrary to the Section 13 of the Employment Rights Act 1996, and also a loss of statutory rights in regards to the effects of Section 3C of the Immigration Act 1971.

Having read the relevant case law, its clear that in certain circumstances an employer can fairly dismiss an employee for potential illegality, though only if they can show a genuine belief that such illegality exists. How can they show such a thing without conducting a reasonable investigation of the immigration status of the employee? A reasonable investigation would clearly follow UKBA guidelines, including an Employer Checking Service request. Surely? And how about the complete disregard for a letter from an immigration solicitor that clearly states that such rights exist?

wpilr_nov12
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Post by wpilr_nov12 » Thu Jan 31, 2013 10:59 pm

You are protected by 3C, but the only way to prove it to someone else is to present UKBA issued document acknowledging your in-time application. It is UKBA's incompetence that they cannot send those out quickly enough. And as always we poor souls suffer needlessly.

And until such time you cannot prove such, I am afraid the employer is within their right/obligation to remove you from payroll, and it would not fall under unfair treatment/dismissal.

Your employer is behaving like a little donkey.
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My ILR, MN1 and kids PP stories.

wpilr_nov12
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Post by wpilr_nov12 » Thu Jan 31, 2013 11:15 pm

Coming back to the question on hand, your best bet would be to convince your employer to use the UKBA checking facility. Barring that I would assume an acknowledgement letter from UKBA should not be too far into the future.
Please do not send me PM if I haven't sent you one yet.
My ILR, MN1 and kids PP stories.

bobby80gh
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Post by bobby80gh » Fri Feb 01, 2013 1:53 pm

If you want your wife to keep her job then you should pray that her employer does NOT use the employer checking service to confirm her status. As she has not given her biometric, the employer checking service will confirm she has NO right to work in the UK. This will give the employer enough grounds not just to suspend her but to sack her. That's how useless the employer checking is. It is a total waste of the tax payers money.

wpilr_nov12
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Post by wpilr_nov12 » Fri Feb 01, 2013 2:32 pm

bobby80gh wrote:If you want your wife to keep her job then you should pray that her employer does NOT use the employer checking service to confirm her status. As she has not given her biometric, the employer checking service will confirm she has NO right to work in the UK. This will give the employer enough grounds not just to suspend her but to sack her. That's how useless the employer checking is. It is a total waste of the tax payers money.
INCORRECT. And the person in question understands why (3C).
Please do not send me PM if I haven't sent you one yet.
My ILR, MN1 and kids PP stories.

bobby80gh
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Post by bobby80gh » Fri Feb 01, 2013 6:29 pm

wpilr_nov12 wrote:
bobby80gh wrote:If you want your wife to keep her job then you should pray that her employer does NOT use the employer checking service to confirm her status. As she has not given her biometric, the employer checking service will confirm she has NO right to work in the UK. This will give the employer enough grounds not just to suspend her but to sack her. That's how useless the employer checking is. It is a total waste of the tax payers money.
INCORRECT. And the person in question understands why (3C).
please do not be ignorant as I really know what I am talking about. I have recently been in the same situation. when i sent a complain letter to ukba they called me on phone and explained to me that currently until you receive the biometric invitation any check you do will come out negative. Many people on this forum has experience the same predicament.

z18runway
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Post by z18runway » Fri Feb 01, 2013 6:30 pm

bobby80gh wrote:If you want your wife to keep her job then you should pray that her employer does NOT use the employer checking service to confirm her status. As she has not given her biometric, the employer checking service will confirm she has NO right to work in the UK. This will give the employer enough grounds not just to suspend her but to sack her. That's how useless the employer checking is. It is a total waste of the tax payers money.
I think it is somewhat right.

cs95tdg
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Post by cs95tdg » Fri Feb 01, 2013 7:32 pm

bobby80gh wrote:If you want your wife to keep her job then you should pray that her employer does NOT use the employer checking service to confirm her status. As she has not given her biometric, the employer checking service will confirm she has NO right to work in the UK. This will give the employer enough grounds not just to suspend her but to sack her. That's how useless the employer checking is. It is a total waste of the tax payers money.
bobby80gh wrote:I have recently been in the same situation. when i sent a complain letter to ukba they called me on phone and explained to me that currently until you receive the biometric invitation any check you do will come out negative.
If this is the case, then it's a serious issue. As how would a new employer verify a potential/new employees right to work in the UK, if they have a pending postal application (where processing times are lengthy, i.e. biometric enrollment happens one or several months after the application itself is submitted). May I ask whether you questioned (UKBA), how then employers should go about verifying any potential employees right to work in the UK (in the event the employee has an outstanding immigration application)? And what they said in response?

It appears that the definition of outstanding application is not clearly stated in their guidance to employers under the following link. My interpretation would be that from the point that the UKBA receive an application in the post/PEO and make a decision on it, it should be considered an outstanding application.

a) where the individual has an outstanding application or appeal with the UK Border Agency;
b) where the individual has presented an application registration card (ARC) which requires validation; or
c) where the individual has presented a certificate of application which requires validation.

http://www.ukba.homeoffice.gov.uk/busin ... pport/ecs/

wpilr_nov12
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Post by wpilr_nov12 » Fri Feb 01, 2013 10:10 pm

Please note that immigration rules supersedes anyone's opinion or experience. If your most recently expired leave allowed you to work, then 3C leaves retains that leave's conditions. The problem is in the mechanics of UKBA confirming that someone has a pending application which is the most authoritative way of establishing you on 3C leave.
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cs95tdg
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Post by cs95tdg » Fri Feb 01, 2013 11:49 pm

Yes, I agree completely with the fundamental S3C legislation/immigration law. The key question raised above is how the UKBA enable employers to verify an employees right to work in the UK, if their so called "employer checking service" has such a limitation (I.e. it only recognises outstanding applications where biometrics have been submited) as that which has been described in this thread.

If this limitation/flaw has been acknowledged by the UKBA, then they clearly need to either address it via systematic means or some other manual process, to avoid both employers and potential/current employees from being affected by it.

mwink
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Post by mwink » Sat Feb 02, 2013 10:11 am

Biometric Enrollment Invitation letter received this morning.

uksettlement
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Post by uksettlement » Sat Feb 02, 2013 10:13 am

mwink wrote:Biometric Enrollment Invitation letter received this morning.
Awesome congrats!
Thanks!

Disclaimer: I am no immigration lawyer nor am I OISC qualified. Suggestions given by me are based on personal experience of dealing with UKBA. Don't treat my advice as a substitute for legal opinion.

mwink
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Post by mwink » Sat Feb 02, 2013 6:06 pm

Still going to go ahead with the grievance, just to make sure she gets paid in full for the suspension period.

safdar
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Re: Suspended from work pending application decision

Post by safdar » Sat Feb 02, 2013 7:07 pm

mwink wrote:Hi there.
My partner submitted an in-time application for ILR on 3/1/13 through our solicitors. Received by UKBA 4/1/13.
Her FLR (unmarried partner) was due to expire on 12/1/13.
On 2/1/13 she had surgery and was off sick for 3 weeks (later extended for another 2 weeks).
No UKBA acknowledgment letter received, so employer decided to suspend her without pay, via a phonecall, on 22/1/13 (last day of her original sick note).
Same day she provided her employer with a letter from our solicitor stating that her application was pending, and as such her leave to remain was continued by virtue of Section 3C Immigration Act 1971.
Employer passed this through the HR department, whom would not accept it.
She asked the employer to provide written reasons for the suspension, to which they relied solely on potential illegality.
There was a lack of a proper disciplinary procedure in respect of suspending her.
She told the employer that they should use the UKBA Employer Checking Service to ascertain her right to work. Employer seemed totally oblivious to this, and pretty much refused to use this facility.
She is in the process of writing a formal grievance letter to the employer.

Does anyone have any advice on what her next step should be?
you can ask ur employer to contact ,,command and control unit of home office

mikkiii
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Post by mikkiii » Mon Sep 23, 2013 12:03 pm

Hiya,

I have received my Biometric, but my lawyer says dont go for quick enrollment. and my employer gone for "employer checking service" will I get positive response from UK border saying I am eligible to work.

I dont know why my lawyer asked me not to go for Biometric quickly.

I am afraid of response from UK to employer now.

Please help.

Thanks.

Mikki
cs95tdg wrote:Yes, I agree completely with the fundamental S3C legislation/immigration law. The key question raised above is how the UKBA enable employers to verify an employees right to work in the UK, if their so called "employer checking service" has such a limitation (I.e. it only recognises outstanding applications where biometrics have been submited) as that which has been described in this thread.

If this limitation/flaw has been acknowledged by the UKBA, then they clearly need to either address it via systematic means or some other manual process, to avoid both employers and potential/current employees from being affected by it.

rainbow100
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Re: Have you got paid for your suspension period ?

Post by rainbow100 » Thu Jan 26, 2017 6:07 pm

mwink wrote:Still going to go ahead with the grievance, just to make sure she gets paid in full for the suspension period.
Hello mwink,

I came across this thread , since I'm in the same situation now , though I'm eligible to work as per the immigration Rule section S3, I have been suspended from the employment due to the lack of proof. I have been suspended since a month so I was planning to write grievance letter as well ? Though the post here is too old, I would really appreciate if anyone can be of any help ?

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