EEA Family Permit: right to work. How to prove it?

Use this section for queries concerning applications on any of the EEA series of forms, and also for applications for EEA Family Permits.

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EEA Family Permit: right to work. How to prove it?

Postby mirwais29 » Thu Nov 03, 2011 5:07 pm

Hello everyone

My husband is from the US and I am Spanish. I am taking a Masters in London at the moment.

Finally my husband got his EEA family permit entry clearance and he plans to be here in the UK in one month (Dec the 1st), but now that I am having a look at the processing times for the 5 years card residence I am getting quite confused. According to the EU regulation and the information on the UK Border Agency he will have the right to work as soon as he steps into the country, but then I can see that it seems to be hard to find a job til you have the Residence Card and that takes UP TO 6 MONTHS!!! That does not make any sense and it is actually contrary to EU law.

Is there any way to prove to a potential employer that a person in such a situation has the right to work? Is there any way to get a National Insurance Number before you obtain the Residence Card? Will the entry clearance will be enough?

Thanks
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Postby Lucapooka » Thu Nov 03, 2011 8:31 pm

Unless the potential employer is immigration savvy, it will be difficult to prove without the residence card. Additionally, if you are studying you'll need CSI for both of you (mandatory for that category of treaty right).
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Postby mirwais29 » Thu Nov 03, 2011 8:37 pm

CSI? Do you mean private health insurance? Comprehensive sick insurance? We do have it... we got it before he applied for the EEA family permit so that it would be easier for him to get the permit. Now I am just concerned about him having to wait for months til he can actually work.

It is funny because someone else working in a charity forum about inmigration matters said to me that any HR department with a basic knowledge of what they do shall be ok with his EEA family permit in order to hire him. This person might be wrong, of course... am just trying to get as much opnions and info as possible!

Thanks
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Postby EUsmileWEallsmile » Thu Nov 03, 2011 9:02 pm

There is a schedule of excuses an employer can make if he hires a worker, who turns out to be not entitled to work. EEA family permit is not on the list.

http://www.ukba.homeoffice.gov.uk/sitec ... alworking/

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

In theory, your husband would get a certificate of application immediately after applying for a residence card. In practice he might wait for a month. A COA is on the list of excuses so can be used to work.

Buena suerte a vosotros.
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Postby Jambo » Fri Nov 04, 2011 7:51 am

The EEA Family Permit allows your husband to work from day 1 in the UK (assuming you are exercising treaty rights as a student and have private health insurance). The problem with employers might be the fact that it expires after a few months and they might not be willing to take his word that he should be getting a 5 years Residence Card later.

When you apply for RC, you initially get a Certificate of Application (CoA) letter which again states your husband right to work but that it states it is for 6 months only so you might face the same issue again.

When applying for jobs, I suggest your husband write on the CV "eligible to work in the UK (EEA family member)" and not mention the word "visa" or the expiry date of the Family Permit. He can deal with that later or if asked.

As for the NI number, the UK is different than the US in that sense. You can start working without a NI. You can apply for a NI number using the EEA Family Permit.
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Postby mirwais29 » Fri Nov 04, 2011 11:34 am

Thank you very much, Jambo!

This message makes me feel far more confident about the situation

:D
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Postby Kitty » Fri Nov 04, 2011 1:56 pm

EUsmileWEallsmile wrote:There is a schedule of excuses an employer can make if he hires a worker, who turns out to be not entitled to work. EEA family permit is not on the list.



The Family Permit is in the comprehensive guidance: page 34. It's a List B document.
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Postby mirwais29 » Fri Nov 04, 2011 4:31 pm

Thanks, Kitty! I appreciate
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Postby EUsmileWEallsmile » Fri Nov 04, 2011 7:12 pm

[/quote]

The Family Permit is in the comprehensive guidance: page 34. It's a List B document.[/quote]

Kitty, I've read the guidance and indeed see a picture of the EEA family permit as a list B document on page 35. I'm not sure I would rely on this. The guidance also talks later on about lots of other matters and the additional measures employers need to make when someone presents a COA (see page 58, Q44).

The basis for the employer's guidance is the Immigration (Restrictions on Employment) Order 2007. In the schedule, there are two lists, A and B. On list B, items 4 and 5 deal with EEA family members. I see that point 1 talks about a passport endorsed to show, etc, but I doubt this was meant for EEA family members. Item 4 specifically talks about additional checks that employers must take when presented with a COA, ie contacting UKBA.

http://www.legislation.gov.uk/uksi/2007 ... edule/made

I would suggest that the husband of mirwais28 apply for an EE2 as soon as possible after arrival and asks that his Certificate of Application is progressed quickly. It is meant to be issued immediately. It will avoid problems with employment.

If I were an employer, I would be very wary of taking on someone unless I was certain that I could - too much trouble.

Again, get a COA and problems will be avoided.
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Postby EUsmileWEallsmile » Fri Nov 04, 2011 8:29 pm

Something else occurred to me... I would expect that any employer who was unsure of what to accept as an excuse would phone the UKBA. I would be surprised if they were told that an EEA family permit would be fine.

This is my personal opinion, best to get the COA; it should not take long.
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Postby EUsmileWEallsmile » Sat Nov 05, 2011 12:40 am

Imagine the selection process...

Scenario 1: There are plenty of candidates. There's this one EU family permit guy. Too much trouble, though I liked him. NEXT!

Scenario 2: get OUT! If this were Texas, we'd have sent him south...

Scenario 3: that EU family guy's the biz; he's the best guy we've got, I wonder if we can justify hiring him, those border agency guys can be REAL tough? Wonder if we can just show 'em his permit, that'll help. Brr, brr; (UKBA) hello, this is UKBA employer helpline; (EMP) I've a question about an applicant's right to work in the UK; (UKBA) well actually, before we start, do you have any vacancies for experienced UK civil servants, no, oh well that's a shame. No harm in trying, eh? Oh, yes, I've heard of that family permit thing ;it's to do with having babies isn't it? You really are a gentleman,are you sure you couldn't offer me a job? (EMP) it's lunch time just now, I'll call back later. NEXT

Scenario 4: COA, no problem, though we gotta call the border agency to verify things.

Scenario 5: RC, we gotta check that boy every year.

Scenario 6: PR, jee that boy's almost British, it says that we don't need ta check on him no more, but better be on the safe side. Didn't he say he was divorced?

Where would you rather be?

Señora mirwaiss29; os aconsejo que aplicéis el EEA2 cuando tengáis tiempo.
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Re: EEA Family Permit: right to work. How to prove it?

Postby Nimitta » Sat Nov 05, 2011 11:54 am

mirwais29 wrote:According to the EU regulation and the information on the UK Border Agency he will have the right to work as soon as he steps into the country, but then I can see that it seems to be hard to find a job til you have the Residence Card and that takes UP TO 6 MONTHS!!! That does not make any sense and it is actually contrary to EU law.


EU law allows EEA family members start working right upon arrival (meaning, it is perfectly LEGAL for EEA family members start working right upon arrival whether they have Residence card or a valid EEA FP or not); but... it does not oblige employers to hire EEA family members. Employers might not want to hire someone if they think hiring a particular person is not practically justified. Say, if they need to hire someone on a 1 year contract, and the EEA FP is valid for 6 months (as well as the COA) they will rather hire someone with 5 year Residence card just to spare themselves bureaucratic details.
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Postby EUsmileWEallsmile » Sat Nov 05, 2011 11:39 pm

It would be interesting to see what feedback there is when the 29's husband arrives...
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Postby Kitty » Sun Nov 06, 2011 2:32 pm

EUsmileWEallsmile wrote:The basis for the employer's guidance is the Immigration (Restrictions on Employment) Order 2007. In the schedule, there are two lists, A and B. On list B, items 4 and 5 deal with EEA family members. I see that point 1 talks about a passport endorsed to show, etc, but I doubt this was meant for EEA family members.


A "Family Permit" is a form of entry clearance endorsed onto a passport, which is what point 1 of List B is talking about.

Now, I certainly appreciate that employers are in a bit of difficulty when presented with a Family Permit, because it's only valid for such a short period of time. And the advice to apply for a Residence Card and present a COA if possible is good advice.

But I don't think there's any doubt that a passport endorsed with a Family Permit is acceptable to provide an excuse under the 2007 Order to which you refer.

There is also the question of whether a refusal to employ a person on the basis that they can only prove a right to work 6 months into the future may be discriminatory. The statements you make about employers just not wanting the hassle may be realistic, but they may also represent a practice that is unlawful. I'm not aware of any case law on this precise point from the Employment Tribunal at the moment though... someone has to bring a case!
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Postby EUsmileWEallsmile » Sun Nov 06, 2011 5:22 pm

Kitty, at the end of the day, no excuse would be required by an employer because an EEA family member is allowed to work by law. An employer could only be fined if he actually employed someone who was not entitled to work and conducted no checks.

The only possible case I can think of is someone who employed a person who presented a family permit, who later turned out not to qualify for it. Even then, I expect common sense would prevail.

I strongly believe that any employer would be very wary of someone presenting an EEA family permit. I would recommend that Mirwais29 applies for the residence card to make her and her husband's life easier. The COA will come relatively quickly. If it is required desperately, then it can be expedited.
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Postby EUsmileWEallsmile » Sun Nov 06, 2011 9:45 pm

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Postby Kitty » Sun Nov 06, 2011 9:53 pm

I don't disagree with any of that: however, you seemed to be stating earlier that a Family Permit was somehow not intended by Government to be a List B document.

As you say, an employer can only be fined if the employee is actually illegal, AND the employer didn't conduct the required checks. Taking a copy of a passport containing a Family Permit protects an employer from a fine during the currency of the FP whether or not the person presenting it is actually entitled to it.

Mind you, I would have thought that the circumstances in which a person might present a perfectly genuine (and legitimately obtained) Family Permit or Residence Card, and yet not in fact have a right to work in the UK could actually be quite common.

The non-EEA spouse of a self-sufficient EEA national who does not have CSI? An unmarried partner separated from their EEA national other half after having obtained a Residence Card?

Employers who ask prosepective employees to demonstrate permission to work in the UK for the next 2 years are basically saying that they don't want to take the risk of performing the required checks again soon after their new employee starts, and finding that either they no longer have the right to work, or they can't provide required documents. It's understandably a pain in the backside to invest in recruitment and lose someone within a matter of months.

My only additional question is whether this is reasonable as a defence in terms of employment law, because it clearly disproportionately affects non-European applicants. It's something that's up for debate.

ETA: OK, I've also now read the linked thread. I can't see how it shows that Family Permits "aren't intended" to excuse employers. The problem in practice is their short validity, not any rule against using them as an excuse.
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Postby EUsmileWEallsmile » Sun Nov 06, 2011 10:22 pm

[quote="Kitty"]"I don't disagree with any of that: however, you seemed to be stating earlier that a Family Permit was somehow not intended by Government to be a List B document."

I am not the Attorney General (or equivalent), but I am pretty convinced that the EEA was never intended to be a list B document. This is a personal opinion.

Kitty: "Mind you, I would have thought that the circumstances in which a person might present a perfectly genuine (and legitimately obtained) Family Permit or Residence Card, and yet not in fact have a right to work in the UK could actually be quite common."

I believe this supports my opinion above, which is not based on law. They mandate that an employer contacts the border agency if a prospective employee presents a COA, but there is no equivalent statement for point 1 in the schedule. Perhaps it was overlooked or it was not envisaged that one might argue that an EEA family permit would come under point 1.
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Postby EUsmileWEallsmile » Sun Nov 06, 2011 10:26 pm

When I first read the list of excuses, I have to say that what struck me most was that EEA family members who had residence cards had to have their status checked every year.

It could be argued that this could be a barrier to employment, freedom of movement, etc.

Personally I find this objectionable and far more serious than whether EEA family permits are acceptable excuses or not.
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Home Office

Postby nonspecifics » Mon Nov 07, 2011 12:55 am

I can see your point.

I can also see the Home Office arguing it is even more objectionable and a barrier to those who have a legal right to work, if the jobs are all taken up by people who do not have the legal right to work in the UK.
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