Dismissal during pending visa application

This is a genuinely important question and the answer depends on several interacting factors, so let me walk through it carefully.

The legal framework:

Under the Immigration, Asylum and Nationality Act 2006, it is a criminal offence for an employer to employ someone who does not have the right to work in the UK. Employers must carry out right to work checks before employment begins and, for time-limited permissions, follow-up checks before the existing permission expires. The penalties for non-compliance are severe, including civil penalties of up to £60,000 per illegal worker (as increased from February 2024) and potential criminal liability.

This creates genuine tension with employment law protections, because your employer has a legitimate concern about compliance even where the delay is not your fault.

Your position while a visa application is pending:

If you submitted an in-time application to extend your visa before your existing leave expired, you benefit from what is known as section 3C leave under the Immigration Act 1971. This means your existing leave is automatically extended on the same conditions until the Home Office decides your application, or until any appeal or administrative review is concluded if you challenge a refusal.

If you have section 3C leave, you continue to have the right to work on the same basis as before. Your employer can verify this through the Home Office Employer Checking Service, which will issue a Positive Verification Notice confirming your ongoing right to work. That notice gives the employer a statutory excuse against liability for up to six months.

So the critical questions are:

1. Did you submit your application before your previous visa expired? If yes, section 3C leave applies and your right to work continues.

2. Has your employer checked with the Employer Checking Service? If not, they should do so before taking any action. A Positive Verification Notice will confirm your status.

3. Has your employer actually received a Positive Verification Notice and is still trying to dismiss you? If so, their position is much harder to justify.

Dismissal and unfair dismissal:

If you have at least two years' continuous service, you have the right not to be unfairly dismissed. An employer who dismisses you because your visa has expired and you cannot demonstrate a right to work may potentially rely on the statutory ground of illegality or contravention of a statutory restriction (section 98(2)(d) of the Employment Rights Act 1996), or on "some other substantial reason." However, even where one of these grounds applies, the employer must still act reasonably in all the circumstances, including following a fair procedure.

If your application was made in time and section 3C leave applies, then there is no illegality in continuing to employ you. A dismissal in those circumstances would lack a fair reason and could well be unfair.

If your application was not made in time, or if there is a genuine gap in your right to work, the employer's position is stronger, but they still need to follow a fair process, give you a chance to explain and provide evidence, and consider alternatives such as unpaid leave while the matter is resolved.

Discrimination:

You should also be alert to the possibility of race discrimination. If the employer is treating you differently from how they would treat a British national in a comparable situation, or if their actions are disproportionate given the availability of the Employer Checking Service, there may be grounds for a discrimination claim under the Equality Act 2010. You do not need two years' service to bring a discrimination claim.

Practical steps:

1. Confirm and evidence that your visa application was submitted before your previous leave expired. Keep copies of the acknowledgment or any correspondence from the Home Office, including any Certificate of Application if you have one.

2. Ask your employer in writing whether they have used the Employer Checking Service, and if not, request that they do so before taking any further steps.

3. If you have section 3C leave, make this clear to your employer in writing, explaining that your right to work continues and can be verified through the checking service.

4. If your employer is still pressing ahead with dismissal, ask for the process to be paused while the check is carried out.

5. Keep a written record of all communications and any meetings.

6. If you are dismissed and you believe it was unfair or discriminatory, you would need to notify ACAS for early conciliation before bringing a claim to the employment tribunal. The time limit is normally three months less one day from the effective date of dismissal.

The key takeaway is that an employer cannot simply dismiss you because a visa is being processed, particularly where section 3C leave applies. They have an obligation to take reasonable steps to verify your right to work, and a failure to do so before dismissing you significantly weakens their position. The outcome turns heavily on whether your application was made in time and whether the employer has followed a fair and informed process.