Tier 2 work visa extended while EEA application in progress?

[alpha99]

Hello,

I checked the FAQ but wasn't sure of the answer to this: my wife is currently working in the UK under a Tier 2 General work visa. We will be sending an EEA2 application for her before it expires. I was talking an adviser earlier today and found that she will be allowed to remain in the UK while the application is in progress, but forgot to clarify whether this extended her right to work as well.

Am I correct in thinking that the application extends the conditions of her visa, allowing her to continue working while the application is in progress? She entered the UK under the Tier 2 General work visa.

Thank you for any help or references.

[Jambo]

Tier-2 is under the UK immigration rules. EEA2 is under the European regulations. Applying in one category doesn't extend the other category. This is a point many legal advisers fails to understand.

However, if you are married to a EEA national exercising treaty rights, your right to work is automatic. Unlike Tier-2 you don't need permission from the HO to work although a Residence Card confirming your right would make it easy to prove to your employer.

[alpha99]

Thanks for the fast reply Jambo!

In this case I am the EEA national, a dual citizenship Irish-English person in the UK, and I am self-employed. My wife is applying for the EEA2. Right now she is checking with her workplace to see what they will require, whether the EEA2 application in progress will be enough, or we will need the expense of a work visa.

[Jambo]

The HO view is that British holding another EEA nationality can't use the other nationality for the purpose of sponsoring family members under the EEA regulations.

See EUN2.16 Can family members of dual British / Irish nationals qualify for an EEA family permit?.

[alpha99]

Thanks for checking that! As I understood it, that only accounts for people who have not exercised their free movement rights. I have lived in Ireland since I was young (moving from the UK when ~ 5), for about twenty years, and then eight years in Toronto before returning to the UK earlier this year. Am I incorrect in that enabling me to benefit from this?

[Jambo]

I doubt the HO would agree with your view. Be prepared for a legal battle.

[alpha99]

Ah, thanks for letting me know. It seems the advisor I consulted wasn't aware of this change in law. I will look at other options.

Thanks again for saving me a lot of time!