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EEA EFM to Tier 2 switch

Only for the UK Skilled Worker visas, formerly known as Tier 2 visa route

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Zerubbabel
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EEA EFM to Tier 2 switch

Post by Zerubbabel » Mon Jan 27, 2020 7:22 pm

Yesterday, I was talking to a lady who is willing to switch from EEA to Tier 2.

The EEA card was obtained as EFM when her EU partner was in the UK. They got separated 2 years ago and he left the UK. She stayed and kept her job.

Last year, she applied for the EU Settlement Scheme and got a CoA. But later the Caseworker contacted to ask for some documents about the EEA national. She couldn't provide anything. So she ignored the request and nothing happened since. She wasn't refused under the EU Settlement Scheme, just nothing happened.

Her EEA card shows 2022 or 2023 as expiration date. But due to Brexit, this should be read as 31/12/2020.

Soon, she is progressing in her job (switching departments + promoted). She wants to ask her employer to sponsor a Tier 2. Before, the employer wasn't involved in her immigration status as she has an EEA card.

Some questions:

- Is it possible to switch to Tier 2 from EEA in the UK? (I think NO)

- What type of CoS does she need? Restricted or unrestricted?

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Re: EEA EFM to Tier 2 switch

Post by CR001 » Mon Jan 27, 2020 7:29 pm

- Is it possible to switch to Tier 2 from EEA in the UK? (I think NO)
No. She must apply from home country and meet all the requirements.
- What type of CoS does she need? Restricted or unrestricted?
Restricted cos. It must be applied for, after meeting the requirements, and submitted to ho by the 5th of the month for consideration at the monthly rcos allocation meeting which takes place on the 13th of every month. She can only apply for the visa once rcos has been approved and the sponsor has assigned it to her. Note that rcos approval does not guarantee visa approval.

Was she an unmarried partner of an EU citizen or married??

Not a clever move to ignore HOs request.
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Re: EEA EFM to Tier 2 switch

Post by Zerubbabel » Mon Jan 27, 2020 8:14 pm

Was she an unmarried partner of an EU citizen or married??

Not a clever move to ignore HOs request.
She was unmarried. She chanced the Eu Settlement Scheme but they asked more documents so she ignored. It's has been like 6 months ignoring them and they never chased. But sooner or later, they might get to her.

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Re: EEA EFM to Tier 2 switch

Post by CR001 » Mon Jan 27, 2020 8:22 pm

Her right to reside in the UK ended on the day they separated. She has therefore effectively been in the UK with no right to reside and working when having no right to work.

Any application she makes for a visa under the UK immigration rules, will show up her whole history.
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Re: EEA EFM to Tier 2 switch

Post by Zerubbabel » Tue Jan 28, 2020 7:35 am

Thank you for that.

She is in a bit of denial of the actual situation. She still feels that she is switching from a legal status to another legal status.

The fact that she holds a residence card gives her the feeling that everything is right in her situation.

But as you said, there is a risk that further analysis of her situation shows that she is not really legal in the UK.

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Re: EEA EFM to Tier 2 switch

Post by CR001 » Tue Jan 28, 2020 8:08 am

And working while in the UK with nonlegal status is a big no no for HO.
The fact that she holds a residence card gives her the feeling that everything is right in her situation.
It isn't and hasn't been since her relationship broke down. She should realised very quickly that something is wrong when ho requested partner information. If that is not a wake call, then not sure what would be. She cannot expect to go through the UK immigration system on any route with blinkers on. It will come back and bite her when she least expects it.

For all she knows, ho is investigating her right to remain after ignoring their request and ho could very well be obtaining information about her previous partner not being in the UK etc. Just because ho has gone quiet doesn't mean all is ok. Obviously there are many UK government departments they can easily see info about the EU partner not being in the UK and the departure manifests of when the partner left the UK.
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Re: EEA EFM to Tier 2 switch

Post by kamoe » Tue Jan 28, 2020 10:52 pm

Zerubbabel wrote:
Mon Jan 27, 2020 7:22 pm
The EEA card was obtained as EFM when her EU partner was in the UK. They got separated 2 years ago and he left the UK. She stayed and kept her job.
First, it is clearly spelled out when you apply for an EFM Residence Card as an unmarried partner that you run the risk of curtailment of your residency rights if your relationship breaks down. This is not trivial, it is a major thing to consider when you decide to jump onto the EFM route as unmarried partner. I'm really surprised she did not know this. Did she apply for this herself, or did he use a third party who did not pass this tiny bit of information onto her?

Second, she will have difficulty applying for a Tier visa to work for her current employer. This is because they'll have to justify why they are sponsoring her, and this will mean she'll have to acknowledge that she has been working for this employer (not that the HO does not already know this with available NINO information). She will be asked to provide evidence of the residence documents she has held, in general, throughout her entire residence in the UK, and in particular, the time she has worked for that employer, which includes two years of a no-longer valid EEA RC.

Third, assuming she did not have, for some reason, any problem obtaining the work visa above, when she attempts to apply for ILR she will. In that application, again, she will be required to justify her entire UK immigration history and prove she has held legal status throughout, and in the case of periods where her residence has dependent on an EEA family member, the RC will not be enough, she must also provide documents to show that the EEA family member was a qualified person or permanent resident in the UK throughout that period (which she cannot prove, as her partner left the UK for two whole years).

I'm sorry to say it looks like it's game over for her in the UK, and it would not be unwise for her to look for other options. She has already overstayed more than two years what was already legally allowed to her anyway.
My posts express what I believe are the facts, based on the best of my knowledge, about the topics discussed in this forum. They do not constitute immigration advice.

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Re: EEA EFM to Tier 2 switch

Post by Zerubbabel » Sun Feb 02, 2020 9:16 pm

kamoe wrote:
Tue Jan 28, 2020 10:52 pm
Zerubbabel wrote:
Mon Jan 27, 2020 7:22 pm
The EEA card was obtained as EFM when her EU partner was in the UK. They got separated 2 years ago and he left the UK. She stayed and kept her job.
First, it is clearly spelled out when you apply for an EFM Residence Card as an unmarried partner that you run the risk of curtailment of your residency rights if your relationship breaks down. This is not trivial, it is a major thing to consider when you decide to jump onto the EFM route as unmarried partner. I'm really surprised she did not know this. Did she apply for this herself, or did he use a third party who did not pass this tiny bit of information onto her?

Second, she will have difficulty applying for a Tier visa to work for her current employer. This is because they'll have to justify why they are sponsoring her, and this will mean she'll have to acknowledge that she has been working for this employer (not that the HO does not already know this with available NINO information). She will be asked to provide evidence of the residence documents she has held, in general, throughout her entire residence in the UK, and in particular, the time she has worked for that employer, which includes two years of a no-longer valid EEA RC.

Third, assuming she did not have, for some reason, any problem obtaining the work visa above, when she attempts to apply for ILR she will. In that application, again, she will be required to justify her entire UK immigration history and prove she has held legal status throughout, and in the case of periods where her residence has dependent on an EEA family member, the RC will not be enough, she must also provide documents to show that the EEA family member was a qualified person or permanent resident in the UK throughout that period (which she cannot prove, as her partner left the UK for two whole years).

I'm sorry to say it looks like it's game over for her in the UK, and it would not be unwise for her to look for other options. She has already overstayed more than two years what was already legally allowed to her anyway.

I just saw your post. Thank you for your valuable input.

Her EEA EFM was through an immigration solicitor. He did all the job for her. But he told her that her EEA card depends on a continuous relationship with the EEA national.

When the relationship broke, she tried to "find a solution". But at the time, she was already in a job she liked and there were no realistic options apart from leaving the country.

Last year, she called the EU Settlement Scheme support centre. They were very optimistic and they told her that despite her holding an EEA EFM and her EEA partner having left the country, she can still apply and get a pre-settled status. She felt it was an easy option as I quote her "they weren't refusing anyone under that scheme". It seems like the media depicted that EUSS as a guaranteed option to anyone holding an EEA card under any circumstances. The Home Office support people confirmed that feeling. It was only when the case worker asked for details about the EEA national, then she had to go quiet. It has been more than 6 months now and they didn't chase or anything. She even went on holidays multiple times with that card and came back to the UK (Heathrow) without any issue.

She couldn't go to her employer asking for a Tier 2 sponsorship (they believe she holds a card valid until 2022/2023). However, as she is soon moving departments within the same company, it makes sense for her to ask the new department for a Tier 2. But I agree, it will open a can of worms at that point as the entire immigration history will come under scrutiny.

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Re: EEA EFM to Tier 2 switch

Post by kamoe » Tue Feb 04, 2020 10:43 pm

Oh dear.

Adding further comments not because there is any point in discussing any more options for your friend, but because this is a very interesting case that can serve as example and reference for future posts.
Zerubbabel wrote:
Sun Feb 02, 2020 9:16 pm
I just saw your post. Thank you for your valuable input.
Anytime :)
Her EEA EFM was through an immigration solicitor. He did all the job for her. But he told her that her EEA card depends on a continuous relationship with the EEA national.

When the relationship broke, she tried to "find a solution". But at the time, she was already in a job she liked and there were no realistic options apart from leaving the country.
So... she knew. She was perfectly aware that the moment her relationship broke, her leave to remain in the UK met its end. Even though she tried to find a solution, she knowingly overstayed.
Last year, she called the EU Settlement Scheme support centre. They were very optimistic and they told her that despite her holding an EEA EFM and her EEA partner having left the country, she can still apply and get a pre-settled status.
Not the first time it has been reported on this forum that the EU resolution center can communicate incorrect information.
She felt it was an easy option as I quote her "they weren't refusing anyone under that scheme". It seems like the media depicted that EU Settlement Scheme as a guaranteed option to anyone holding an EEA card under any circumstances. The Home Office support people confirmed that feeling.
I raise my hand guilty of also hoping I could use the Settlement Scheme to my advantage. I tried my chance to see if I obtained Settled Status instead of the Pre-Settled I knew I was eligible for. The way the more public information is worded, it seemed like it could let me "jump the queue" and get it. It did not. I waited for exactly 5 months without a word or update, only to be granted the duly deserved Pre-Settled Status.

So I understand the feeling of hope that the newly-launched and vaguely described scheme could solve one's problems, but the truth is, in the end, regardless of how badly and misleading it is explained on the public pages, The Settlement Scheme follows very precise rules, which are always described on the caseworker guidance.

The difference is, I did not overstay my legal leave, and I applied before I was eligible for Settled Status because I legally could. I do not think it is wise to try one's chances in circumstances similar to those of your friend.
She even went on holidays multiple times with that card and came back to the UK (Heathrow) without any issue.
Here's another detail not to disregard. If you see this post, you'll know that non-EU family members usually get asked at least one question on arrival to the UK when traveling alone: "Where is your sponsor?"

How she has answered that question in the past might also mean she might or might not have very intentionally lied to an immigration officer. :!: :!: :!:
She couldn't go to her employer asking for a Tier 2 sponsorship (they believe she holds a card valid until 2022/2023). However, as she is soon moving departments within the same company, it makes sense for her to ask the new department for a Tier 2. But I agree, it will open a can of worms at that point as the entire immigration history will come under scrutiny.
Oh boy.
My posts express what I believe are the facts, based on the best of my knowledge, about the topics discussed in this forum. They do not constitute immigration advice.

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