Can You Employ Someone While Their Visa Application Is Pending?

An employee's visa is about to expire, and they've applied to extend it — but the Home Office hasn't decided yet. Can you keep employing them? Can you hire someone whose application is still pending? The answer is usually yes, but only if you take the right step to protect yourself. Get it wrong and you're exposed to a civil penalty even though the person genuinely has the right to work.

This guide explains how to establish a statutory excuse when an immigration application is pending, and the deadline you can't afford to miss.

This guide is for informational purposes only and does not constitute legal advice. For advice on your specific situation, consult a qualified immigration solicitor.

The short answer

If an employee made a valid application to extend or vary their leave before their existing leave expired, their right to work usually continues automatically while the application is being decided. This protection comes from section 3C of the Immigration Act 1971, often called "3C leave."

But here's the catch: 3C leave protects the employee's right to work. It does not automatically give you, the employer, a statutory excuse against a civil penalty. For that, you need the Home Office to confirm the position — and a document check won't do it, because the person's status is mid-application.

Why a document check doesn't work

When an application is pending, the employee's documents (an expired visa, for example) no longer establish a current statutory excuse on their own. What does work depends on whether they can give you a share code.

What you must do: the online check first, the Employer Checking Service if there's no share code

The Home Office's employer's guide sets out the order. Where an individual tells you they have an outstanding, in-time application, "and they are an eVisa holder, the employer should conduct an online right to work check." In that case "the online service will provide confirmation of the individual's right to work and will provide the employer with a statutory excuse for a period of six months." You run the online share code check in the usual way.

The Home Office Employer Checking Service is the fallback: "In circumstances where the individual is unable to provide an employer with a share code, yet they have an outstanding, in-time application, they should contact the ECS for verification of this." The request asks for the employee's full name, date of birth, nationality, job title, hours worked per week and UK home address, plus your business details.

The guide says the ECS "aims to provide a response within five working days". If the answer is yes, you receive a Positive Verification Notice (PVN), which gives you a statutory excuse for 6 months from the date specified in the PVN. Our Employer Checking Service guide walks through the full request process.

The two scenarios

Existing employee, visa expiring with an application pending. Before their current permission expires, run an online check with a share code, or — if they can't provide one — request an Employer Checking Service check. Either way, a positive result gives you a six-month statutory excuse. If their permission has already lapsed and you didn't check in time, the 28-day grace period may give you a short window to obtain a PVN or carry out an online check and preserve your excuse — but only if a statutory excuse already existed.

New hire with a pending application. You can employ someone whose application is pending, but you must establish your statutory excuse first — with an online check, or through the Employer Checking Service if they can't give you a share code — before they start. Don't rely on "they told me they've applied." Verify it.

The deadline you can't miss

The 6-month limit is the part that catches employers out. If the underlying application is still pending when the 6 months are up, your statutory excuse has expired. You have to run a fresh check — a new online check, or a fresh PVN from the Employer Checking Service — and you have to do it before the 6-month anniversary, not after.

This is the same follow-up trap that catches employers with ordinary visa expiry dates. The difference is that a pending application can drag on for many months, so you may need to repeat the check two or three times before the application is finally decided. Each check buys you 6 months; each renewal needs a reminder. Our visa expiry tracking guide shows how to capture the dates so none slip.

What happens if you don't

If you employ someone without a statutory excuse and they turn out not to have the right to work, you face a civil penalty of up to £45,000 per worker for a first breach. The fact that they had a genuine pending application doesn't help you if you never ran the check that gives you the excuse — the penalty regime is built around whether you took the prescribed steps, not whether the employee was ultimately granted leave. See our civil penalty guide for how the figure is calculated.

The bottom line

You can usually employ someone with a pending, in-time application — their right to work continues under section 3C leave. But to protect yourself, run an online check if they can give you a share code, and use the Employer Checking Service only if they can't. Either way the excuse lasts only 6 months, so diarise the renewal and re-check while the application is still outstanding. The employee's right to work is automatic; your statutory excuse is not.

Sources

• Section 3C, Immigration Act 1971 — legislation.gov.uk
• Employer Checking Service — GOV.UK
• Employer's guide to right to work checks — GOV.UK (the version published on 1 October 2026, which states that it came into force that day)
• Code of practice on preventing illegal working: Right to Work Scheme for employers — GOV.UK (in force from 1 October 2026; penalty level £45,000 per worker for a first breach)
• Penalties for employing illegal workers — GOV.UK