Shoosmiths LLP
  February 22, 2023 - Milton Keynes, England

Employer Checking Service Checks: when to carry them out and things to watch out for!
  by Shoosmiths LLP

Employer Checking Service (ECS) checks are a vital step in the right to work check process. Positive Verification Notice (PVN) from the ECS can ensure that an employer maintains a statutory excuse against liability for a civil penalty for illegal working in situations where an employee’s visa expires during the course of their employment.  

ECS checks are required in situations where an employee is on a time limited visa that expires during employment.  Employers must carry ECS checks out in these situations to comply with their duties in relation to the prevention of illegal working. ECS checks require the consent of the individual and are carried out online by the employer. 

How long do they take? 

ECS checks take around a week to be processed by the Home Office. The reason for the time it takes is in recognition of the fact that there can be a delay in the Home Office systems being updated after an individual has submitted their application. The right to work guidance advises employers to submit ECS checks two weeks after submission of any visa application. For this reason, employers who have satisfied themselves that an employee has submitted their visa application in time are afforded a grace period of 28 days from the date of expiry of the visa to carry out the ECS check and obtain the result. This grace period only applies to existing employees and does not apply to pre-employment checks. 

What happens when the ECS is processed?

When the check has been processed, the employer will be emailed a verification notice. A Negative Verification Notice (NVN) would indicate that the individual no longer has the right to work and steps would have to be taken to investigate what has happened and potentially terminate employment if it transpires that the negative verification notice is correct. 

A PVN indicates that the individual does have an ongoing right to work. These are valid for six months at which point they must be repeated if the individual’s visa has not yet been granted.  

PVNs – what to watch out for!

A PVN does come with a health warning and there are circumstances in which it will not result in a statutory excuse. 

There are various sections on PVNs and it is important to read each section carefully to understand the conditions of the individual’s right to work. 

Section six on PVNs states that “your time limited statutory excise will not apply if at any time you become aware that this person no longer has the right to do the work in question and you may also be prosecuted for knowingly employing an illegal worker which means you may face an unlimited fine and/or imprisonment.”

What this means is that if the individual’s visa application is refused within the six-month validity of the PVN, and the employer is made aware of the refusal, the statutory excuse may come to an end. 

Where this happens, employers will need to investigate further and find out whether the individual has been given a right of appeal or right of administrative review. If they have, and if they lodge their challenge within the deadline (which is usually 14 days) then their right to work will continue.  Employers are advised to obtain evidence of submission of the appeal/administrative review and keep a record of this on file. 

If the individual chooses not to appeal or seek administrative review of the refusal when they have been given the right to do so, their right to work will end on the last date for challenging the decision. Submission of a fresh application will not in itself reinstate their right to work and individuals in these circumstances will only be allowed to work again if and when their application is granted. 

Employers with any employees in this situation should take legal advice given they will need to bear that in mind and take the appropriate steps to terminate employment, even if within the six-month period from receipt of the PVN. 

Late applications – what effect do they have on the ongoing right to work?

It is a common for employers to question whether a late application will re-instate the individual’s right to work and the answer is a clear ‘no.’ If an employer becomes aware that the individual had submitted their visa application after expiry of their previous visa, they should be aware that a PVN, even if received after the application was submitted, would not constitute a valid statutory excuse. Unfortunately, there can be delays in the Home Office/UKVI systems (which do not always communicate with other) and it means that PVNs are erroneously generated. 

This is why it is important that employers obtain evidence of the date of submission of the application and check this against the previous visa to ensure that it was submitted in time. If the individual is unable or unwilling to share evidence of the date of submission of the application, then this would have to be investigated further as the 28-day grace period only applies where the employer is ‘reasonably satisfied’ that the individual has made an in time application or has an outstanding appeal or administrative review. 

What should employers be doing to manage this risk?

Employers should do the following:

Going forward – what next?

As the Home Office moves towards a fully digitised system, we would hope that this will include an update to an ECS process. Any new system needs to provide up to date information in real time. Unless and until this happens, employers must remain alive to the fact that a PVN may not be something they can rely on in isolation to maintain a statutory excuse and their knowledge of the individual’s circumstances is always relevant. 

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