Chen right to work under family permit

[splanky]

I'm an Australian primary carer to a Dutch minor child, and I'm hoping to apply for a family permit early next year. I am dealing with a migration agent, who has told me the family permit does not give me the right to work in the UK. This contradicts everything I've read on these and other boards.

Could someone clarify what the rights of a Chen parent are? Even the UKBA guidance 08/2012 states:

"... primary carers with a right to reside on the Chen basis are, since 16th July 2012, able to work in the United Kingdom regardless of whether or not documentation has been issued to them by UKBA in that capacity."

To me that indicates a right to work on the family permit, before a COA is issued. I assume this derives from European legislation, rather than UK legislation as I couldn't find any reference to it when I searched. If so could someone link me to the relevant European legislation?

My plan, before talking to the migration agent, was to get a family permit and thus have my right to work established, then come to the UK and immediately continue working in my own business remotely for my clients in Australia. Then, when I apply for the Derivative Residence Card, under the guidance in UKBA guidance 08/2012 I will have already relied on the Chen right to legally work and my self-sufficiency will have been established prior to that, and my income should be taken into account to support my assertions that my child would remain self-suffient.

Just going by what the migration agent said about not being able to work on a family permit that plan won't work, but I given my research I don't think I believe him. What do people think - am I right, or is the migration agent?

Regards,
Splanky

[Jambo]

I will not use that migration agent (in fact I don't see a reason to use an agent at all).

You seem to understand your situation well.

[splanky]

I will not use that migration agent (in fact I don't see a reason to use an agent at all).

You seem to understand your situation well.

Yes, I am less than impressed with the migration agent. I now understand my situation well, but I didn't when I started out. The migration agent has helped a bit along the way. I didn't get the family permit the first time I applied, and I had an agreement with the migration agent that they would help me resubmit if my application was refused, so I might as well get my money out of them. They had never applied for a family permit for a Chen parent before, though they had applied for other EEA family permits.

The refusal of the first family permit application was not the migration agent's fault, it was the UKBA considering my application under Regulation 7, not Regulation 15A. Which is a whole other rant - how useless are those people?? Why do they not allow you to make it clear on the form you are a primary carer rather than a dependent? Given they don't do this why do they not recognise the rights of a primary carer anyway???

I am no lawyer or migration expert, so if there is anyone here who can help clarify my situation that would be great. I will inform the migration agent of anything I find out (which is why links to legislation would be good) and then perhaps if any other unfortunate Chen parent pays for their services they will actually get knowledgable advice. Unlike me.

[Jambo]

The July 2012 amendments are available here. Also worth reading is the explanatory memorandum to the changes.

It doesn't specially state that you have right to work as under the EEA regulations right of residence includes right to work. The DRC wording doesn't restrict the holder from work or business activities.

[splanky]

Thanks Jambo. I looked through the 2012 amendments pretty closely and couldn't find anything specific there.

I asked the migration agent to clarify with the Home Office. He had suggested I do this. I suggested he might like to do it on my behalf. Given I have paid money for just that kind of service from them.

He came back and said:

"Further to the question asked regarding your ability to work while on a family permit, may I refer you to paragraph 30 of the same link you sent to me. The said paragraph states and I quote "A person who submits a valid application for a derivative residence card will be issued with a certificate of application which will facilitate their taking employment while their application is under consideration". What this means in otherwords, is that if you make a derivative residence card application following your entry to the UK, you are not entitled to work until you receive an acknowledgement letter from the Home Office in form of a certificate of application. "

(Link is http://www.ind.homeoffice.gov.uk/siteco ... g/chen.pdf)

To me that does not mean what he says it does. "Facilitate" means "assist" not "grant the right to". He does not explicitly state that this interpretation comes from the Home Office.

He also says that the conditions attached to the family permit would clearly confirm if you can work or not while on a family permit. This is the first I have heard of conditions attached to a family permit. Does anyone have any information on what these conditions are? Links to websites detailing these conditions? Personal experience with their own family permits?

Splanky

[dalebutt]

Why worry about what this inefficient individual has to say anyway? He does appears as not wanting to admit he had given you a wrong advice in the first place.

Certificate of application does says that the applicants is allowed to take up employment in the UK, I will personally not bother about dissecting the word "facilitate" whatever it might mean COA will carry the important wording along the lines of "the individual has been authorised to engage employment simple". That agent is pointless IMO

[splanky]

Certificate of application does says that the applicants is allowed to take up employment in the UK, I will personally not bother about dissecting the word "facilitate" whatever it might mean COA will carry the important wording along the lines of "the individual been authorised to engage employment simple". That agent is pointless IMO

Yes, but I want to work _before_ the COA is issued. My interpretation is that the COA acknowledges a right that already exists, it does not grant that right.

It's quite possible I will ignore the agent's advice as he's given me no concrete evidence from the Home Office that I would not be able to work before the COA is issued, but I have paid them money and as far as I'm concerned they can earn it by continuing to advise me. I'll reserve the right to use the advice or not, as I see fit.

Splanky

[dalebutt]

The waiting period between when your application is received and when you will receive a COA is pretty moderate, between 1 week to 2 weeks it takes? COA does not acknowledges a right, the residence card does, but because someone applying under EEA regulations will be deemed to have a right of residence, which comes with a right to work, UKBA is obliged by law to issue a COA with a right to work on receipt of the application, that in itself doesn't mean the application will succeed.

[splanky]

Losing even one or two weeks income when I don't have to is something I'd like to avoid. Also if I have already worked when I put the application in (due to my right of residence being established by the granting of the family permit) I meet the criteria of paragraph 21 in the link above:

"21. In cases where self-sufficiency has been established and the primary carer
has begun working in exercise of their Chen right these funds can, however,
be relied upon to support assertions by the EEA national child that they will
remain self-sufficient whilst in the UK; for example where an application is
made for a renewal of a derivative residence card."

Splanky

[dalebutt]

If you have been issued a family permit, you do not need to wait for COA before seeking employment, there are no working restrictions on EEA family permits.