The continuing digitalisation of the United Kingdom’s immigration system was intended to make immigration status easier to establish and verify, yet for some migrants whose leave is extended automatically by section 3C of the Immigration Act 1971, the practical experience can be considerably more difficult. A person may remain lawfully present in the United Kingdom, continue to enjoy the same permission to work that attached to their previous immigration leave, and nevertheless find themselves suspended from employment, deprived of wages or even dismissed because an employer cannot immediately see satisfactory digital confirmation of that continuing status.
This creates a troubling distinction between possessing a legal right and being able readily to demonstrate that right to a third party.
For an employee who has submitted a valid immigration application before the expiry of their existing leave, the date shown on an expired visa, Biometric Residence Permit or previous grant of permission does not necessarily mark the date upon which their lawful residence or right to work ended. Where the statutory requirements of section 3C are satisfied, Parliament has provided for the previous leave to continue automatically while the immigration application remains outstanding and, in appropriate circumstances, during a pending appeal or administrative review.
The practical difficulty arises when the legal continuation of leave is not immediately reflected in the digital evidence available to an employer. Faced with the potentially serious consequences of employing someone without permission to work, some employers adopt an understandably cautious but legally questionable approach: they treat the absence of immediately available digital evidence as equivalent to the absence of a right to work.
Those two propositions are not the same.
For migrants affected by this problem, the consequences can extend far beyond immigration administration. Loss of employment may mean loss of income, inability to pay rent or a mortgage, difficulty supporting children and other dependants, damage to professional careers and, in some cases, considerable emotional and financial hardship while an immigration application that was properly made remains unresolved.
This article examines the legal framework governing section 3C leave, the obligations placed upon employers conducting right-to-work checks, the difficulties created when digital evidence does not accurately or immediately demonstrate continuing status, and the possible employment and discrimination consequences where an employee is suspended or dismissed without the employer first using the verification mechanisms provided by the Home Office.

Section 3C is a statutory protection, not a discretionary concession

The starting point is section 3C of the Immigration Act 1971.
Its purpose is to prevent an individual who has made an appropriate immigration application while still lawfully present in the United Kingdom from becoming an overstayer merely because the Secretary of State has not determined that application before the individual’s existing leave expires.
The current Home Office guidance explains that section 3C will ordinarily operate where an individual has limited leave to enter or remain, makes an application to vary that leave before it expires, and the existing leave subsequently expires while the application remains undecided and has not been withdrawn.
The significance of this protection should not be underestimated. Immigration applications may remain outstanding for weeks or months, and in particularly complicated cases considerably longer. Without section 3C, a person whose application was properly made before expiry could become an overstayer solely because of the time taken by the Home Office to reach a decision.
Parliament avoided that consequence by providing for the continuation of leave by operation of law.
Accordingly, when section 3C applies, the person’s lawful immigration status does not depend upon the Home Office having issued a fresh grant of permission after the expiry date appearing on the previous immigration document. The statutory extension itself provides the legal basis upon which the individual remains in the United Kingdom.
The Home Office’s 3C and 3D Leave caseworker guidance expressly states that the purpose of the provision is to prevent an applicant who makes an in-time application from becoming an overstayer while awaiting the decision and, where applicable, while an appeal or administrative review remains pending.
Home Office: 3C and 3D Leave Guidance

Section 3C generally preserves the conditions of the previous leave

The importance of section 3C is not limited to lawful residence.
Where section 3C operates, the conditions attached to the person’s existing leave ordinarily continue during the statutory extension unless those conditions are subsequently varied by the Secretary of State.
The Home Office guidance gives employment as a specific example: where a person was subject to a condition permitting employment before section 3C arose, that person may continue to work under the same conditions while section 3C leave continues.
The converse is equally important. Section 3C does not normally improve or enlarge a person’s previous employment rights. If the person’s previous permission restricted the type of work they could undertake, the employer for whom they could work or the number of hours they could work, those restrictions generally continue.
Section 3C therefore operates principally as a mechanism of continuity.
A Skilled Worker whose existing permission allowed employment for a particular sponsor does not suddenly acquire unrestricted access to the labour market merely because section 3C has arisen. Equally, however, an individual whose conditions permitted them to continue working does not ordinarily lose that permission simply because the expiry date stated on their previous grant of leave has passed.
This distinction is fundamental to understanding the problem.
The expiry of the document is not necessarily the expiry of the legal right.

The practical problem: “Your visa has expired, so you cannot work”

For many affected migrants, the difficulty begins with a conversation with an employer or human resources department.
The employer’s records indicate that the employee’s immigration permission expires on a particular date. The employee makes an immigration application before that date, but the Home Office has not decided it when the expiry date arrives.
The employer then asks the employee to demonstrate their continuing right to work.
Where the employee is able to generate a share code and the Home Office online service correctly displays the continuing right to work, there may be little difficulty. The employer conducts the appropriate check, retains the required evidence and employment continues.
The problem becomes considerably more serious where the employee cannot generate satisfactory digital evidence or where the online system does not immediately demonstrate the section 3C position.
The employee may produce evidence that the immigration application was submitted before the previous leave expired, including an application acknowledgement, payment confirmation and Home Office reference number, but the employer may nevertheless take the view that, without a share code or a digital status showing a future expiry date, continued employment is too risky.
Some employees are then suspended without pay.
Others are removed from work schedules.
Some are told to remain at home until they can provide evidence that may not be within their power to obtain.
At the extreme end, employees may be dismissed.
The central legal difficulty is that an employer may thereby be treating an evidential problem as if it were an immigration-status problem.

Why employers are understandably cautious

It is important to recognise that employers themselves operate within a strict statutory framework.

Sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 establish the civil penalty regime concerning illegal working. An employer may face substantial financial consequences where it employs a person who does not have permission to undertake the work in question and the employer has failed to establish the appropriate statutory excuse.

Employers are therefore entirely justified in taking right-to-work compliance seriously.

The answer, however, is not to replace proper verification with assumptions.

The Home Office has published detailed guidance explaining the steps employers can take to establish a statutory excuse, including circumstances in which an employer should use the Employer Checking Service (“ECS”) rather than relying exclusively upon the ordinary online share-code process.

The current Employer’s Guide to Right to Work Checks, updated in July 2026, expressly recognises section 3C leave and describes it as extending existing immigration permission, together with associated conditions, where an individual makes an in-time application to extend their stay.

Home Office: Employer’s Guide to Right to Work Checks

The Employer Checking Service: the safeguard that should not be overlooked

The Employer Checking Service exists because the Home Office recognises that there are circumstances in which an individual may possess a right to work but be unable to demonstrate that right through the usual documentary or digital methods.

This is particularly important where there is an outstanding immigration application, appeal or administrative review.

Where the circumstances identified in the Home Office guidance are satisfied, the employer can request verification directly from the Home Office. If the Home Office confirms that the individual has the relevant right to work, it can issue a Positive Verification Notice (“PVN”).

The PVN is important for both parties.

For the employee, it provides official confirmation capable of resolving the employer’s uncertainty about the continuing right to work.

For the employer, it can establish a time-limited statutory excuse against liability for a civil penalty, provided the required procedure has been correctly followed.

There may therefore be a significant difference between an employer saying:

“The employee cannot produce a share code, therefore we have no alternative but to dismiss them,”

and an employer saying:

“The employee cannot presently demonstrate their status through the online service, so we will use the Employer Checking Service to establish the true immigration position before deciding what action is necessary.”

The latter approach is considerably more consistent with the structure of the Home Office’s own right-to-work regime.

Section 3C is not automatic merely because an application was submitted

Although section 3C provides an important safeguard, employees and employers must equally avoid assuming that every application made before the date appearing on a visa necessarily produces section 3C leave.

Validity matters.

The Home Office guidance makes clear that an invalid application does not ordinarily extend leave under section 3C unless the defect is subsequently corrected in circumstances in which the application is treated as validated from the original date.

This can become particularly complicated where there are problems concerning application fees, the Immigration Health Surcharge, biometrics or other validity requirements.

The Supreme Court has considered the relationship between validity and section 3C in cases including R (Afzal) v Secretary of State for the Home Department; R (Iyieke) v Secretary of State for the Home Department [2023] UKSC 46.

The practical lesson is that neither employee nor employer should determine the position merely by asking whether an online form was submitted before the previous visa expired. It may be necessary to establish whether there was a valid in-time application capable of engaging section 3C and whether anything subsequently occurred that brought the statutory extension to an end.

This is one reason why specialist advice may be required where the immigration chronology is complicated.

The digital status problem and the RAMFEL litigation

The difficulties experienced by migrants who possessed section 3C leave but could not readily prove that status came before the courts in the important litigation brought by the Refugee and Migrant Forum of Essex and London (“RAMFEL”) and Cecilia Adjei.

In R (RAMFEL & Adjei) v Secretary of State for the Home Department [2024] EWHC 1374 (Admin), the High Court examined the position of individuals who had section 3C leave but lacked documentation that enabled them readily to demonstrate their continuing lawful status and associated rights to third parties.

The litigation highlighted a fundamental practical problem within an increasingly digital immigration system: a legal status that cannot readily be demonstrated may become extremely difficult to exercise in everyday life.

The consequences are particularly acute in employment.

A worker may know that they submitted a valid application before their previous leave expired. Their immigration adviser may confirm that section 3C is operating. The legislation may continue their previous leave automatically. Yet, if an employer cannot see satisfactory evidence through the systems available to it, the employee may find that the theoretical existence of the legal right does not prevent immediate financial hardship.

The High Court originally found aspects of the Secretary of State’s approach unlawful. However, the litigation subsequently proceeded to the Court of Appeal, and it is essential that the High Court judgment is not presented as though it remains the final statement of the law.

The Court of Appeal: an important qualification to RAMFEL

In R (RAMFEL & Adjei) v Secretary of State for the Home Department [2025] EWCA Civ 1843, the Court of Appeal overturned the High Court’s conclusion that the Secretary of State’s approach was irrational in the public-law sense.

The litigation continued in relation to a further issue, resulting in R (RAMFEL & Adjei) v Secretary of State for the Home Department [2026] EWCA Civ 86, handed down on 17 February 2026.

The Court of Appeal’s judgments are important because they mean that the 2024 High Court decision cannot safely be cited for the broad proposition that the Home Secretary is presently under a general public-law duty to issue every person on section 3C leave with immediate digital documentary proof of that status.

That does not, however, make the underlying problem disappear.

Indeed, the litigation itself arose because of the genuine difficulties experienced by migrants who had lawful section 3C status but encountered obstacles in demonstrating it to employers and other third parties. The Court of Appeal’s 2026 judgment expressly described the proceedings as arising from the difficulties faced by some migrants enjoying section 3C leave who were not provided with documentation demonstrating that status to third parties.

The distinction is therefore critical:

The courts’ ultimate conclusions about the scope of the Secretary of State’s public-law duty do not mean that an employer is entitled to assume that absence of immediately available digital proof equals absence of a right to work.

The employer’s obligations must instead be considered under the statutory illegal-working regime, the Home Office right-to-work guidance and, where applicable, employment and equality law.

A digital record is evidence of status; it is not necessarily the source of the status

This distinction deserves emphasis.

An eVisa is an online record maintained by the Home Office showing a person’s immigration status and the conditions attached to it. A share code enables an authorised third party, such as an employer, to access relevant information from that digital record.

Section 3C, by contrast, is a statutory mechanism created by Parliament.

Where its legal requirements are satisfied, the continuation of leave occurs because the statute provides for it, not because an online screen has been updated.

Consequently, where there is a discrepancy between the underlying legal position and what an employee is immediately able to demonstrate digitally, the appropriate response should ordinarily be to establish the actual immigration position through the verification procedures provided by the Home Office rather than to assume that the digital difficulty has extinguished the underlying right.

Prove Your Right to Work

The discrimination dimension: immigration compliance must be undertaken fairly

Employers’ obligations do not end with immigration law.

The Equality Act 2010 prohibits unlawful discrimination in employment, including discrimination because of race. For these purposes, race includes colour, nationality and ethnic or national origins.

The Home Office itself has published a Code of Practice for Employers: Avoiding Unlawful Discrimination While Preventing Illegal Working, recognising that right-to-work checks must be conducted in a manner that does not result in unlawful discriminatory treatment.

The two legal obligations are complementary rather than contradictory.

An employer must take reasonable and lawful steps to prevent illegal working, but it should do so consistently and without making assumptions based upon an individual’s nationality, ethnicity or perceived immigration status.

An employer who subjects migrant workers to unnecessarily onerous requirements, refuses to use an available Home Office verification process, or operates a blanket policy that disadvantages particular groups may therefore need to consider whether its approach gives rise to equality-law consequences.

Home Office Code of Practice: Avoiding Unlawful Discrimination

Could suspension or dismissal amount to unlawful discrimination?

There is no universal answer, because liability will depend upon the particular facts.

However, the possibility should not be overlooked.

A blanket employment policy providing that any migrant worker who cannot immediately generate an online share code must stop working, notwithstanding evidence of an outstanding in-time application and the availability of the Employer Checking Service, may require careful examination under the Equality Act 2010.

Depending upon the formulation and application of the policy, questions of direct discrimination, indirect discrimination and justification may arise.

Indirect discrimination can be particularly relevant where an apparently neutral provision, criterion or practice places people sharing a protected characteristic at a particular disadvantage compared with others and places the individual claimant at that disadvantage, unless the employer can demonstrate that the measure is a proportionate means of achieving a legitimate aim.

Preventing illegal working is plainly a legitimate and important objective.

The more difficult question may be whether immediately suspending or dismissing a worker was a proportionate means of achieving that objective where an official Home Office verification procedure was available that could have established whether the individual remained entitled to work.

Each case requires individual legal analysis; nevertheless, employers should not assume that immigration compliance provides an automatic defence to every form of differential treatment.

Could the dismissal be unfair?

Separate questions may arise under ordinary employment law.

Where an employee has the necessary statutory qualifying status for an unfair dismissal claim, an employer who dismisses because it believes continued employment would contravene immigration legislation may seek to rely upon an appropriate potentially fair reason, depending upon the circumstances.

That does not necessarily end the enquiry.

An Employment Tribunal may still need to consider the reasonableness of the employer’s decision and the procedure followed before dismissal.

Relevant questions could include whether the employer:

• gave the employee an opportunity to explain the immigration position;
• considered evidence of the outstanding application;
• obtained the relevant Home Office reference information;
• understood the possibility of section 3C leave;
• attempted an online right-to-work check where appropriate;
• used the Employer Checking Service where the guidance indicated that it should;
• waited for Home Office verification where reasonable; and
• considered alternatives to dismissal while verification was being obtained.

An employer who exhausts the appropriate verification mechanisms but receives confirmation that the individual has no continuing right to work is in a materially different position from an employer who dismisses simply because an expired document appears on the personnel file.

The quality of the investigation may therefore become important.

Suspension without pay is not necessarily a risk-free solution

Some employers, concerned about dismissal, instead suspend the employee without pay until immigration status can be demonstrated.

Although this may appear to be a safer middle course, it can itself raise significant contractual and employment-law questions.

Whether an employer is entitled to suspend without pay will depend upon the employment contract, the circumstances giving rise to the suspension, the employee’s actual continuing entitlement to work and other relevant legal principles.

Where the employee in fact retains permission to work under section 3C and the employer could have verified that permission through the Employer Checking Service, prolonged unpaid suspension may potentially expose the employer to claims concerning unpaid wages, breach of contract or other employment rights, depending upon the circumstances.

Employers should therefore resist the temptation to regard unpaid suspension as an automatic solution whenever immigration evidence is temporarily unclear.

The human consequences can be profound

It is easy for discussion about section 3C to become dominated by technical questions concerning statutory wording, application validity, digital records and Home Office verification procedures.

For the individual worker, however, the consequences are intensely practical.

A person may have lived and worked lawfully in the United Kingdom for years, submitted their extension application in good time and continued to comply with the conditions of their immigration permission, only to find themselves unexpectedly removed from work because the digital evidence required by their employer cannot immediately be produced.

A household that previously depended upon regular wages may suddenly be unable to meet rent, mortgage payments, utility bills, childcare costs or other essential expenditure.

For sponsored professionals, interruption of employment may create further anxiety about the immigration application itself.

For families with children, the consequences of abruptly losing household income may be particularly serious.

This is why employers should regard section 3C cases not merely as administrative inconveniences but as situations requiring careful, informed and proportionate decision-making.

What migrant workers should do when their employer questions their right to work

Where an employee believes that section 3C is preserving their right to work but the employer says that their immigration permission has expired, the first priority should be to establish the immigration chronology accurately.

The employee should retain and, where appropriate, provide evidence showing the date upon which the previous leave expired and the date upon which the new application was submitted.

Application confirmation emails, payment records, Home Office reference numbers, evidence concerning the Immigration Health Surcharge and correspondence confirming the outstanding application may all be important.

Where an employer cannot complete the ordinary online right-to-work check, the employee should draw the employer’s attention to the Employer Checking Service and the Home Office guidance concerning outstanding applications.

The employee should also ensure that important communications with the employer are recorded in writing. If discussions take place orally with management or human resources, it may be sensible to follow them with an email confirming what was discussed.

Most importantly, an employee who is threatened with suspension or dismissal should avoid resigning impulsively. Resignation can significantly alter the employment-law analysis and may affect the remedies subsequently available.

Where employment is at immediate risk, advice should be obtained promptly on both the immigration and employment aspects of the case.

What responsible employers should do

Employers should approach section 3C cases systematically rather than defensively.

Where an employee’s recorded immigration permission is approaching expiry, the employer should engage with the employee before the expiry date and establish whether an extension application has been made.

If the employee states that an application was made before expiry, the employer should obtain sufficient information to understand the chronology and conduct the appropriate Home Office check.

Where the online right-to-work service provides the necessary confirmation, that evidence should be retained in accordance with Home Office requirements.

Where the employee cannot use the ordinary digital process and the circumstances fall within those identified in the Home Office guidance, the employer should consider using the Employer Checking Service.

The employer should also avoid imposing requirements upon migrant employees that are inconsistent with the Home Office’s own checking regime.

A compliant right-to-work process should protect the business from illegal-working penalties without unnecessarily depriving lawful workers of employment.

That balance is entirely achievable when the statutory and Home Office procedures are properly understood.

A warning for employees: section 3C can come to an end

Employees should equally understand that section 3C is not indefinite.

Its duration depends upon the statutory circumstances.

Leave may come to an end when an application is decided or withdrawn, subject to any applicable period during which an in-country appeal or administrative review can be brought or remains pending.

An individual may also lose section 3C protection by taking steps that have consequences under the legislation, including leaving the United Kingdom.

Late appeals and administrative reviews raise further complications.

For example, the Court of Appeal decision in R (Akinola) v Upper Tribunal [2021] EWCA Civ 1308 is reflected in Home Office guidance dealing with circumstances in which section 3C may resurrect after an out-of-time appeal is permitted to proceed.

Employees should therefore avoid telling an employer simply, “I have an appeal, therefore I have section 3C leave.” The precise chronology matters.

Why specialist advice may be necessary

Section 3C cases frequently sit at the intersection of immigration law and employment law.

An immigration solicitor may need to establish whether section 3C actually arose and whether it remains in force.

The employment-law analysis may then require consideration of whether the employer followed a reasonable process, whether suspension or dismissal was contractually and statutorily permissible, whether wages remain payable, whether discrimination issues arise and what remedies may be available.

Where an employee has already been dismissed, time limits for bringing Employment Tribunal proceedings can be short. Immigration correspondence should therefore not be allowed to distract from protecting employment-law limitation periods.

Similarly, an employer confronted with uncertain immigration evidence should seek advice before taking irreversible action, particularly where the employee asserts section 3C leave and provides evidence of an in-time application.

BWF Solicitors’ perspective

The development of eVisas and online immigration records represents a fundamental transformation in the way immigration status is evidenced in the United Kingdom. Digitalisation may ultimately make verification faster and more reliable, but it does not eliminate the need to distinguish carefully between immigration status itself and the mechanism through which that status is demonstrated.

Section 3C illustrates that distinction particularly clearly.

Where the statutory requirements are satisfied, Parliament extends the individual’s existing immigration leave notwithstanding the expiry date attached to the previous grant. The conditions of that leave, including an existing permission to work, ordinarily continue unless and until section 3C ends or the conditions are lawfully varied.

Employers unquestionably have a legitimate and important obligation to prevent illegal working, and no responsible employer should disregard that duty. Equally, however, an employer should not treat an inability immediately to produce a particular form of digital evidence as conclusive proof that the employee has become an overstayer or lost the right to work.

The Home Office’s own framework recognises this possibility and provides the Employer Checking Service precisely because not every lawful right-to-work situation can be resolved by looking at an expiry date or requesting a share code.

The safest approach is therefore neither complacency nor panic, but verification.

For employees, that means understanding the basis upon which section 3C operates, preserving evidence of the immigration application and acting quickly where employment is threatened.

For employers, it means understanding the distinction between expired documentation and expired permission, following the Home Office’s prescribed checking procedures, using the Employer Checking Service where appropriate, and ensuring that immigration compliance does not become a vehicle for unnecessary or discriminatory treatment.

A migrant should not lose a lawful job merely because a legal immigration status cannot immediately be seen on a screen. Equally, an employer should not be required to take immigration status on trust. The law provides mechanisms for resolving that uncertainty, and those mechanisms should ordinarily be used before suspension or dismissal is considered.

Key Legal Authorities and Official Guidance

Key Legal Authorities

Immigration Act 1971, section 3C

The statutory foundation for continuation of qualifying immigration leave following an in-time application.

Immigration, Asylum and Nationality Act 2006, sections 15–25

The statutory framework governing employer liability and civil penalties for illegal working.

Equality Act 2010

The principal statutory framework governing unlawful discrimination in employment, including discrimination relating to race and nationality.

R (Afzal) v Secretary of State for the Home Department; R (Iyieke) v Secretary of State for the Home Department [2023] UKSC 46

Important Supreme Court authority concerning section 3C, application validity and the long-residence context.

R (Akinola & Anor) v Upper Tribunal & Anor [2021] EWCA Civ 1308

Important authority concerning section 3C and out-of-time appeals.

R (Refugee and Migrant Forum of Essex and London & Adjei) v Secretary of State for the Home Department [2024] EWHC 1374 (Admin)

The High Court decision addressing the problems experienced by migrants on section 3C leave who could not readily demonstrate their status.

R (RAMFEL & Adjei) v Secretary of State for the Home Department [2025] EWCA Civ 1843

The Court of Appeal’s subsequent decision overturning the High Court’s conclusion on irrationality.

R (RAMFEL & Adjei) v Secretary of State for the Home Department [2026] EWCA Civ 86

The further Court of Appeal judgment completing the appellate consideration of the remaining issue.

Official Home Office Resources

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About the writer:

Bennard Owusu is an accredited member of the Law Society Family Law Accreditation

Scheme and a member of the Ghana Bar Association. Family Law Accreditation is a

recognised quality standard for family law practitioners in the U.K.

About the writer:

Bennard Owusu is an accredited member of the Law Society Family Law Accreditation

Scheme and a member of the Ghana Bar Association. Family Law Accreditation is a

recognised quality standard for family law practitioners in the U.K.