Can I Work While My Visa Application Is Being Processed?

There is, unfortunately, no simple answer to the question ‘Can I work while my visa application is being processed?’.

If you’ve applied to extend or change your work visa, you may be permitted to carry on working for your existing employer pending a decision from the UK Home Office, but this will depend on both the timing of your application and the conditions of your previous leave.

To work legally in the UK, all foreign nationals must hold valid immigration status which permits them to do the work in question, usually by way of a work visa. This means that if you’ve not yet been granted a work visa where one is required under the UK’s Immigration Rules, you will be prohibited from undertaking employment. Even if you’ve previously been granted a visa, you may be prohibited from working if this is no longer valid or has expired.

Below we examine the rules relating to the right to work in the UK, including the circumstances in which a person may be permitted to work while waiting for a visa decision.

 

Working without the right to work

It’s illegal for someone who is subject to immigration control to undertake work in the UK if they’re disqualified from working by reason of their immigration status, and that person either knows or they have reasonable cause to believe that this is the case.

This means that if you have not yet been granted the right to work in the UK, or do not otherwise have the right to work under the Rules, it would be illegal for you to undertake work of any kind. You can also be classed as an illegal worker if the leave you have is invalid or ceased to have effect, or doesn’t allow the kind of work that you’re doing.

Equally, it’s a criminal offence for an employer to employ someone that they know or has reasonable cause to believe doesn’t have the right to work in the UK. This includes where an employer is aware or suspects that a worker doesn’t have leave to enter or remain in the UK, any prior permission has expired, or they’re not permitted to do certain types of work.

Working illegally in the UK, or turning a blind eye to employing illegal migrants, is punishable by imprisonment, a fine or both. Any employer who fails to carry out a prescribed right to work check before employing a migrant worker, or to carry out a follow-up check for someone with time-limited permission to be in the UK, may additionally be liable to a civil penalty.

 

What does the law say about working while a visa is being processed?

If a person subject to immigration control requires a visa to undertake work in the UK, and doesn’t currently hold a valid visa, they will not be permitted to undertake work unless and until a positive decision is made by the Home Office on any pending application. If you do work in circumstances where you’re not legally permitted to do so, you could be criminally prosecuted. This could also jeopardise any pending or future immigration application.

However, there are specific legislative provisions that will enable an individual to continue to work for their existing employer, having already been granted permission to work in the UK but where an extension or variation of their visa is required. Under section 3C of the Immigration Act 1971 (as amended), where an application is made to extend or vary a person’s existing leave, and the application is not decided before that leave expires, that permission will be extended until the application is decided or withdrawn. However, any application for a new visa must be made in time. An in-time application is one made by a person in the UK who at the time of applying has leave to enter or remain.

Essentially, you will be granted section 3C leave if:

• you have either limited leave to enter or remain in the UK
• you apply for variation of that leave
• your application for variation is made before the leave expires
• your leave expires without the application having been decided
• your application for variation is neither decided nor withdrawn.

 

The purpose of section 3C leave is to prevent anyone who makes an in-time application to extend or vary their leave from becoming an overstayer while they’re awaiting a decision from the Home Office, and while any appeal or administrative review they’re entitled to is pending.

 

Section 3C continuation of leave 

To benefit from section 3C leave while a visa application is pending, and to be able to work in the interim period, there are certain rules that must be followed.

Specifically, section 3C does not extend leave where the application is made after any current grant of leave has expired. This means that even if you held a work visa, if you apply to extend that visa after it runs out, you will not benefit from any continuation of leave. Your application must be made during the currency of your existing right to work. That application must also be valid, where an invalid visa application does not extend leave under section 3C.

Where a work visa application is made in time, but is procedurally defective, the application may be rejected as invalid. This could be, for example, where the wrong fee is paid, the wrong form is used, mandatory sections are incomplete or mandatory documents are not submitted.

Where an invalid application is received and a fee has been paid, even if it’s the wrong fee, the Home Office may provide the applicant with a single opportunity to correct any omission or error. However, you will only be given 10 working days to respond to the request.

If the error or omission is satisfactorily rectified, the application will be classed as ‘validated’. This means that it will be treated as valid from the date it was first made. Where the error or omission is not rectified, for example, where the requested fee or further information is not received, or the application still remains invalid, then leave will not be extended by section 3C.

 

Are the rules different for different types of visa application?

The rules relating to section 3C leave apply equally to all extension applications. Having submitted a valid and in-time application, the provisions of section 3C should come into play. The benefit of having Section 3C leave is to enable, amongst other things, an applicant who has submitted a timely application to continue in employment whilst awaiting a decision from the Home Office, provided the conditions of their leave permit this.

In all cases, unless the conditions of their leave are varied, a visa applicant with section 3C leave will remain subject to the conditions attached to their extant leave. For example, anyone subject to a condition allowing employment may continue to work as they did before, although any restrictions on the type of work allowed will still apply. This means that your immigration status will stay the same while you wait for a decision, but you will not usually be permitted to work in a completely different job or for a new employer in the interim period.

It’s important to bear in mind that section 3C leave can be cancelled with immediate effect if you fail to comply with a condition attached to your previous grant of leave, or where deception is used or has been used in seeking leave to remain, such as submitting false documentation or making false representations. Additionally, leave under section 3C will lapse if you leave the UK, so even though you will still retain your passport while waiting for a decision, you must not travel overseas while your visa application is being processed.

 

What if your visa application is delayed?

Provided you’ve submitted your extension application prior to expiry of your existing visa, and that application is not rejected as invalid, any delay in deciding your visa application will not usually impact any continuation of leave. This is because section 3C leave will be triggered on any valid in-time application where your leave expires pending a decision from the Home Office. However, you will be limited to the conditions of your prior grant of leave.

The waiting time for a visa application starts once you’ve submitted your application and ends when you get either a letter or an email with a decision from the Home Office. In most cases, you should usually get a decision on your work visa within 8 weeks. You might need to wait longer for a decision if your application isn’t straightforward, for example, if your documents need to be verified or because you need to attend an interview.

You may be able to pay for a faster decision using the priority or super priority services. Under the priority service, you can get a decision within 5 working days at an additional cost of £500, or by the end of the next working day under the super priority service at a cost of £800. If you apply for a faster service and your application is not straightforward, this may take longer, but your application will still be prioritised at every stage of the decision-making process.

 

Proving your eligibility to work to an employer

By law, your employer must conduct a prescribed right to work check before employing you. They must also conduct a follow-up check if you have time-limited permission to be in the UK.

In most cases your employer can use the Home Office online ‘Right to Work Checking Service’. This means that if you apply for a new work visa and a positive decision is made on your application prior to expiry of your existing leave, you will usually be able to prove your ongoing right to work online. The online service works on the basis of you first viewing your own Home Office right to work record, where you can share this information with your employer by providing them with the correct ‘share code’. Alternatively, your employer can conduct a manual check of your right to work.

In circumstances where you have made an extension application but a decision has not yet been made, proving your right to work can be a little trickier. You may not have received clear notification from the Home Office confirming receipt of your extension application and/or the date that this was received. This can cause considerable anxiety for an applicant waiting for a decision, especially where their existing work visa is due to expire.

However, where you cannot show your documents because of an outstanding appeal, review or application with the Home Office, your employer can ask the Home Office to check your immigration status using the online ‘Employer Checking Service’. To request a check, your employer will need to provide the Home Office with the following information:

• Your name, date of birth, nationality and home address
• Your job title and hours worked per week
• Your Home Office reference number or case ID, if you have either.

 

If you’ve not yet been allocated a Home Office reference number or case ID, you should contact UK Visas and Immigration by post or email, although you may also want to seek expert advice from an immigration specialist, especially if cessation of employment is a possibility.

The rules around section 3C leave are complex and, in some cases, can result in unfathomable consequences for even the most careful visa applicant. For example, if you make an in-time application well before your existing grant of leave expires, but that application is refused while you still hold extant leave, you will not have met the fundamental prerequisite that your application was still pending at the point your leave expired. In these cases, another application will need to be submitted very quickly. By seeking expert advice, this can help to avoid any section 3C leave issues, ensuring you can continue to work regardless of your wait.

 

Need assistance?

DavidsonMorris are UK immigration specialists. For expert guidance on a UK visa application and your eligibility to work, contact us.

 

Right to work while awaiting a visa decision FAQs

Can I work while waiting for a visa application?

Under section 3C of the Immigration Act 1971, you can continue to work in the UK while waiting for a visa application, so long as you submitted your extension application before your existing work visa expires.

Can I work in the UK while waiting for my visa?

Provided your most recent visa allowed you to work in the UK, and either that visa has not yet expired or you submit a valid in-time application for a new visa, you can work while waiting for a decision.

Can I work while my application is being processed?

Whether or not you can work while your visa application is being processed will depend on the timing of your application and the conditions of your existing leave.

Can I start work while waiting for Tier 2 visa?

If you apply for a Tier 2 visa for the first time, you must usually wait until you've received a positive decision from the Home Office before starting work.

Last updated: 24 August 2021