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Senior Partner
Senior Partner, Solicitor
Category: Law
Satisfied Customers: 13323
Experience:  Solicitor with more than 30 years experience
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We have an employee who has been working for us for the last

Customer Question

We have an employee who has been working for us for the last two and a half years. He is not a UK or EU national as he holds a Bangladeshi passport. He was hired by a former director of the company who is no longer a Director but he was responsible for running the company previously until my wife and I are took over the running of the company in January 2013 are now the only remaining directors of the company. When we took over the company in January 2013 we asked this employee about his visa status and he said he was on a Tier 1 Enterpreneur Visa which entitled him to work as many hours as he wanted. We recently heard a rumour that this Bangladeshi employee was illegally staying in the UK. We asked him about i a month ago and he insisted that he was on a Tier 1 Visa. We asked him for a copy of the visa and he said he will send it. But he kept procrastinating for a month until a couple of days ago we sent him a letter suspending him for failing to providing satisfactory evidence of his eligibility to work in the UK and we invited him to a formal meeting to discuss his status in the UK. He immediately replied to that email and sent us a copy of his visa. It turned out he was holding a Tier 4 Student Visa, which not only meant that he was only entitled to work a maximum of 20 hours per week while he was working for us for 30 to 40 hours, but on top of that the visa expired in October 2012!!! He also sent us an email saying he that he has applied for a new student visa and it will take one month for the UKVI to decide on his application. He sent us a copy of the email he received from the UKVI, dated July 23 2014, acknowledging that he has applied for further leave to remain in the UK. This is the email: From: UK Visas and Immigration Date: 21 July 2014 11:31:12 BST To: ***** *****: Application XXXXXXXXXXX UK Visas & Immigration | XXXX XXXXXX XXXX - 100xxxxxx9784 Thank you for your application for further leave to remain in the United Kingdom. Following your biometric enrolment your application is now valid and will be considered by a caseworker on behalf of the Secretary of State. For up to date turnaround times on particular applications please visit our website http://www.ukba.homeoffice.gov.uk. Our general advice to applicants is not to make any non-urgent travel plans until we have decided their application and returned their passports or travel documents. Please do not telephone or make written enquiries about the progress of your application before you hear from us unless you need a passport or other document urgently as this diverts resource from caseworking. Please note that it is no longer possible to make enquiries in person about the progress of an application at any of the UK Border Agency's Public Enquiry Offices. Provided an applicant has permission to be in the United Kingdom when an application is made, he or she is legally entitled to remain here under the conditions of his or her previous leave until the application is decided. Please do not reply to this email. This email address is for notification purposes only, unfortunately we are unable to respond to general enquiries. Now my question is can we dismiss this employee for lying about his eligibility and for being an illegal worker since his visa expired in October 2012 and he did not inform us? The above email says that Provided an applicant has permission to be in the United Kingdom when an application is made, he or she is legally entitled to remain here under the conditions of his or her previous leave until the application is decided. However, when he applied last month for further leave to remain, he did NOT have permission to be in the UK because his student visa had expired in October 2012. This means that he currently does not have the right to be in the UK. So is this grounds for a fair dismissal and how should we dismiss him?

The other question is whether we should inform the Home Office about this employee, or will we get fined? We want to avoid the risk of getting a fine. So ideally we should dismiss him without having to report the issue to the Home Office or to UKVI to avoid fines. Or is it better to report it? Many thanks.

Submitted: 2 years ago.
Category: Law
Expert:  Senior Partner replied 2 years ago.
Thank you for your question. first of all base upon what you say he is in the UK unlawfully has no right to be here and has no right to work. The basic principle is that a foreign national who is here on limited leave to remain must apply for an extension of leave before the current leave expires. IF his tier 4 visa expired in OCtober 2012 and he has not applied for an extension or renewal until july 2014 then his application will be refused and he is not eligible to apply for such a visa whilst here unlawfully and he will be told to leave and make any subsequent application form abroad.

The result of course is that he is not eligible to work and it is unlawful to employ him. The company is oblige to check that its employees are eligible to work and should have obtained a copy of his visa when he was employed. So the company is in theory liable to be fined.

You can and should terminate his employment. First you can do so for lying but secondly you cannot employ him as it is unlawful . So you should write to him and say he is employment is terminated immediately as he has been working without a valid visa and has lied to you about his immigration status. You can point out that his visa expired in 2012 and unless he applied for an extension before its expiry he has no right to work or remain in the uk.

The home office will no doubt take action as appropriate based upon his out of time application so it is up to you if you wish to report it. They would be unlikely to fine you if you explain that you took over the company and have taken action to rectify the position.

You can report it but you are not obliged to.
Customer: replied 2 years ago.

Thanks for your reply. I was told by our employment advisers that he can sue us for unfair dismissal if we fire him now. Should we wait for the result of his application before we dismiss him? Today he forwarded us an email he received from the Home Office which said:


Your application is still under consideration by a caseworker on behalf of the Secretary of State. For up to date turnaround times on particular applications please visit our website http://www.ukba.homeoffice.gov.uk.

Our general advice to applicants is not to make any non-urgent travel plans until we have decided their application and returned their passports or travel documents.
Please do not telephone or make written enquiries about the progress of your application before you hear from us unless you need a passport or other document urgently as this diverts resource from caseworking. Please note that it is no longer possible to make enquiries in person about the progress of an application at any of the UK Border Agency's Public Enquiry Offices.

Provided an applicant has permission to be in the United Kingdom when a valid application is made, he or she is legally entitled to remain here under the conditions of his or her previous leave until the application is decided.

Please do not reply to this email. This email address is for notification purposes only, unfortunately we are unable to respond to general enquiries.

Yours sincerely

UK Border Agency
On behalf of Secretary of State for the Home Office

Does the above mean he is not allowed to be in the UK because the email says: Provided an applicant has permission to be in the United Kingdom when a valid application is made, he or she is legally entitled to remain here under the conditions of his or her previous leave until the application is decided.

thanks.

 

Expert:  Senior Partner replied 2 years ago.
The advice is wrong. I cannot believe this advice came from a qualified solicitor..He cannot bring a claim for unfair dismissal. He has no legal right to work here and you are breaking the law by employing him. You must not do so unless he can produce valid evidence of the right to work for you. The email from the home office is a standard one. The important sentence is "Provided an applicant has permission to be in the United Kingdom when a valid application is made". This means that the application must have been made BEFORE his leave expired. If his visa expired in 2012 then he had no permission to be here when he applied.

The company is required to get evidence of his right to work in the form of a copy of a valid visa in his passport or a home office letter of consent. He cannot provide either of those. It is not unfair dismissal to terminate a contract which is unlawful and he will have no claim.

Unless he can prove he applied for an extension before his last visa ran out you must terminate his employment. You will definitely be liable to be fined if you do not.

Please come back to me if I can clarify further
Customer: replied 2 years ago.

Thank you for your reply and for explaining. Is it possible to draft a termination letter for the employee? thank you.

Expert:  Senior Partner replied 2 years ago.
All you letter needs to say is :

Dear X
We have asked you to provide evidence of your right to work in the UK. You have produced a visa that expired in October 2012. You have been unable to produce any evidence of valid leave to remain in the UK or right to work here. Accordingly we are unable to employ you as it would be unlawful under s15 to 25 of the Immigration Asylum and Nationality Act 2006. You employment is therefor terminated with immediate effect.
yrs etc

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