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Ask the expert: Employee’ residence permit expires on maternity leave – what do we do?

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This time the experts, Esther Smith and Martin Brewer give their advice on what an employer should do when an employee’s residency permit runs out during maternity leave.

The question: Employee’ residence permit expires on maternity leave – what do we do?

I realise that one of our employees’ residence permit expires shortly (whilst she is on maternity leave). As she remains our employee, what action must we take?
 

Legal advice:
 

Martin Brewer, partner, Mills & Reeve
 

This is a complex area and care needs to be taken.  It’s not clear what you mean by ‘residence permit’ and why this of itself is an issue.

You have not really given sufficient information for a meaningful response beyond this: if your employee does not have the right to be and work in the UK then it is unlawful for you to employ her however, you may do so if she has a pending application for, for example, an extension. 

You should take urgent specific legal advice on the precise circumstances of your case and you should also visit the UK Border Agency web site which has a great deal of useful information.
 

Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar
 

I am not sure whether you are referring to the expiry of an employee’s residency permit (their right to reside in this country) or their work permit (their right to work in this country), which are slightly different things.

However, the first thing I would suggest is, if you have not already done so, contacting the employee about this matter and making sure that she is aware of the imminent expiry so that she can take any such action as she needs to, to get it renewed if applicable. This will depend on what type of permit you are talking about. 

If we are looking at a work permit, and the expiry means that we cannot continue to legally employer her in the UK, then we need to make her aware of this as if the permit does expire then we would need to terminate her employment.

If the work permit is one that is sponsored by the employer, then you may be able to take action on her behalf by contacting the Home Office to seek an extension, but without further details it is hard to comment further!

The Home Office website is really useful as a starting point to signpost where to go for further help.
 

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

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