Waiting time Conditions For UK Work Visa: Can I Start Work While waiting for a Decision?

The general rule of thumb is that you should always wait to receive permission from the Home Office before you undertake the purpose of your application, whether this is a course of study, moving to the UK to start up a new business venture, or employment with a licenced sponsor. As with many aspects of immigration law, however, there are some exceptions that apply, one of which relates to the current COVID-19 pandemic. In this article, we will outline the conditions under which a worker can start work before receiving a decision on their visa application from the Home Office.

Exception Due To The COVID-19 Pandemic

During 2020, the pandemic caused a considerable backlog of all immigration application types, largely due to the closure of visa processing offices in the UK and worldwide. While service has now returned to relative normality, there are still residual impacts that will take time to resolve during 2021. For this reason, the Home Office still has in place an exception for the starting work rule, which many applicants can take advantage of. As of the time of writing this article (24th February 2021), the current Home Office covid guidance states that the following visa type applicants can use the exception to start work before receiving a decision:

• Skilled Worker visa

• Health and Care Worker visa
• Intra-company Transfer visa
• T2 Worker visas
• T5 Temporary Worker visas

Not everyone will be eligible to use this exception, however. To be eligible, you must have

• been assigned a Certificate of Sponsorship (CoS) and either:

• you’re applying under the Health and Care visa, or;
• your CoS was assigned before 1st January 2021

• you submitted your application before your current visa expired, and you show your sponsor evidence of this

• the job you start is the same as the one listed on your CoS

If these do not apply, you will need to wait until you receive a decision on your application before starting work.

It is important to note that if you do start work in the UK and your application is eventually rejected, you will need to stop working immediately and then arrange to leave the UK or apply for a new visa or another immigration status.

Extending Your Work Visa

If you have applied to extend your current work visa, you will also be able to carry on working for your employer until you receive a decision from the Home Office. In this case, you must have applied before your work visa expired. If you are still awaiting a decision, even if your visa has now expired, you will be able to carry on working.

This also applies if you are switching to a work visa from another visa category from within the UK; e.g. if you are currently on a long-term student visa for a course that is due to end and switch to a Skilled Worker visa if you have a job offer from a licenced employer in the UK in a role which meets the minimum salary requirement.

The immigration rules, which define whether it is possible to work while waiting for a decision, are defined in section 3c (Continuation of leave pending variation decision) of the Immigration Act 1971. Section 3c states that this applies if:

• a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave, and;
• the application for variation is made before the leave expires, and;

• the leave expires without the application for variation having been decided.

This section further clarifies that leave will be extended if:

• the application for variation is neither decided nor withdrawn

• an appeal has been brought against a negative decision which is pending
• an administrative review of the decision on the application for variation could be sought or is pending

It is important to note that if you continue to work for your UK employer while waiting for your visa extension decision from the Home Office, your leave to remain may be at risk if you

• breach the conditions of your stay
• have used deception when applying for your extension

Starting Additional Work

If you currently hold a work visa in the UK and would like to take on additional work, you will be able to do so without seeking permission first if:

• it is for the same job/occupation code you are sponsored for, or it is in a shortage occupation
• the additional work will not exceed 20 hours per week

It is also possible to undertake unpaid voluntary work without seeking permission from the Home Office. If, however, the additional work you want to take on is outside of your current job type, or it exceeds 20 hours, you will need to request a Certificate of Sponsorship from the second employer and apply to the Home Office to vary the conditions of your visa – you will need to wait until you have a decision before starting this additional work.

Final Words

Unless you are specifically extending or varying the conditions of your existing valid work visa or the covid exception outlined above applies, it is always safer to assume that you will not be able to work until you have a positive decision from the Home Office. If you do start work and you are not entitled to do so, this may jeopardise your pending application and any future immigration applications. It may also mean that you are forced to leave the UK. For these reasons, if you are in any way unsure if you can start work, speak to immigration Solicitors who will be able to advise you. They will be able to outline your options to achieve your immediate and longer-term goals for you and your family.