The 28-Day Grace Period for Right to Work: What Employers Must Do
Your employee's visa expired yesterday. They tell you they've applied to extend it. Do you dismiss them immediately, keep them on, or do something else entirely?
This is where most small employers make a mistake — either panicking and terminating employment unnecessarily, or doing nothing and hoping it works out. Neither is right. The correct answer involves a specific 28-day window defined in the Code of Practice on Preventing Illegal Working, and getting it wrong can cost you up to £45,000 per worker.
This guide is for informational purposes only and does not constitute legal advice. For advice on your specific situation, consult a qualified immigration solicitor.
What the 28-day grace period is
When a follow-up right to work check is due because an employee's time-limited permission has expired, your statutory excuse — the defence that protects you from civil penalties — continues for up to 28 calendar days from the expiry date. But only if specific conditions are met.
During these 28 days, you are not liable for a civil penalty even though the employee's current right to work documentation has expired. This gives you time to verify whether the employee has an outstanding immigration application or appeal through official channels.
After 28 days, if you haven't obtained a Positive Verification Notice from the Employer Checking Service, your statutory excuse lapses. From day 29 onward, you're employing someone without a defence — and if they turn out not to have the right to work, you face the full penalty.
When the grace period applies
The 28-day grace period only applies if all of these conditions are true:
- You conducted a compliant initial right to work check before the employee started working for you
- The employee had time-limited permission (List B documents — a visa with an expiry date, or a verification notice)
- You are reasonably satisfied the employee has submitted an in-time immigration application or appeal before their permission expired
- The permission has now expired and the follow-up check is due
It does not apply to:
- New hires. You cannot start someone's employment during a grace period — the check must be complete before their first day
- Employees whose initial check was non-compliant. If you didn't do the initial check correctly, you have no statutory excuse to extend
- Employees who haven't applied to extend. If the visa simply expired with no pending application, there is no grace period — the employee has no right to work
What you must do during the 28 days
The grace period isn't passive. You must take action:
Step 1: Contact the Employer Checking Service
Use the Employer Checking Service to request verification of the employee's immigration status. You'll need:
- The employee's full name
- Date of birth
- Nationality
- Home Office reference number (if known)
Step 2: Wait for the response
The Home Office will respond with one of two outcomes:
- Positive Verification Notice (PVN): The employee has an outstanding application and has the right to continue working. Your statutory excuse renews for 6 months from the date of the notice. Schedule your next follow-up check accordingly.
- Negative Verification Notice: The employee does not have the right to work. You must act on this — continuing to employ them after receiving a negative notice exposes you to civil penalties and potentially criminal prosecution.
Step 3: Record everything
Document the date you contacted the Employer Checking Service, the response received, and the date of the response. This is part of your audit trail — the evidence you'll need if the Home Office visits.
The countdown that catches employers out
Here's why the 28-day period is dangerous: it starts automatically on the expiry date, whether or not you know about it.
If you don't have a system tracking visa expiry dates, you might not even realise the grace period has started — let alone that it's ending. By the time you notice, you could already be past day 28.
| Day | What should happen | What often happens |
|---|---|---|
| Day 0 | Visa expires. Grace period begins. Contact ECS immediately. | Employer doesn't notice — no tracking system in place. |
| Day 7 | Chase ECS if no response. Continue documenting. | Employer still unaware the visa has expired. |
| Day 14 | Response should be received by now. Plan next steps. | Employee mentions their visa expired "a couple of weeks ago." |
| Day 21 | Final week. Escalate if no ECS response. | Employer contacts ECS for the first time — response may not arrive before day 28. |
| Day 28 | Statutory excuse lapses. No more protection. | Employer loses statutory excuse without realising it. |
The window is 28 calendar days — not business days. Bank holidays and weekends count. If the visa expires on a Friday, day 28 falls on a Saturday four weeks later.
Use our follow-up check timeline calculator to generate a full countdown from any visa expiry date, including reminder milestones at 90, 60, 30, 14, and 7 days before expiry — so you're prepared before the grace period even starts.
What happens when your statutory excuse expires
If day 28 passes without a Positive Verification Notice:
- Your statutory excuse is gone. You no longer have a defence against a civil penalty.
- You may be employing an illegal worker. If the employee's application is refused, they've been working without the right to do so — and you have no protection.
- Penalties apply per worker. Up to £45,000 for a first offence, £60,000 for a repeat offence within 3 years. See our guide to illegal worker fines for the full breakdown.
If a Positive Verification Notice arrives after day 28, the gap between day 28 and the notice date is a period where you had no statutory excuse. Whether the Home Office penalises you for that gap depends on the circumstances, but it's a risk you don't want to take.
Practical steps to avoid missing the deadline
- Track every visa expiry date. Maintain a register of all employees with time-limited right to work, including their permission expiry dates. Review it monthly.
- Set reminders before expiry — not after. The grace period starts on expiry day. If you're only reacting at expiry, you've already lost time. Set reminders at 90, 30, and 7 days before expiry.
- Have the employee's details ready. When you contact the ECS, you'll need their full name, date of birth, nationality, and any Home Office reference numbers. Collect this during the initial check and keep it on file.
- Follow up if the ECS doesn't respond quickly. Chase after 7 days if you haven't received a response.
- Document every step. Record when you contacted the ECS, when you received the response, and what it said. This is your audit trail — our right to work checklist template gives you a starting framework.
For the full compliance lifecycle — from initial check through follow-up scheduling — see our employer's guide to ongoing RTW compliance and the dedicated guide to follow-up right to work checks.