secret.simon wrote:...
I do not think that this would be the correct case to refer to.
For direct Family Members, their right to work is generated by their relationship to the EEA citizen and the COA and RC are merely evidentairy of their right to work.
But, in the case of EFMs, I believe that the right to work is generated by the Residence Card, which is pretty much what the COA that is issued to them confirms (that they have no right to work until the RC is issued).
The case that you referred to was that of a spouse, a direct Family Member. The OP is an EFM and I submit that he does not have the right to work in the absence of a currently valid RC.
@Simon,
The case was shown to illustrate that all is not lost in these cases, people due have employment rights and that a legal intervention can succeed.
I didn't intend to suggest the particular case is the specific case law to invoke every time.
My understanding is if an EFM is found wanting and fails to produce enough supporting evidence to earn the issue of a RC then yes, they are in the danger zone. It is the end of the road for them and they may be subject to the HO's administrative procedure for removal and so on.
However until that occurs the case is not proven; as I see it, EU rights are generally positive and enabling rather than negative and restrictive.
Hence my positive interpretation as a layman (not legal professional) on the matter.
I suspect there's a difference between the position under EU law and how UK chooses to treat and facilitate EFM guests/migrants in the UK.
This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
...
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
This judge's musings puts it well...
88. I...
Equally, it is an important aspect of Community law relating to the right to free movement of persons that since that right is one of the “founding freedoms” established by the Treaty, it is to be given a broad meaning and conditions and limitations placed upon it must be narrowly construed. As expressed in recital 14, in relation to the supporting documentation required by the competent authorities for the issuing of a registration certificate or of a residence card, these “should be comprehensively specified in order to avoid divergent administrative practices or interpretations constituting an undue obstacle to the exercise of the right of residence by Union citizens and their family members”.
...
89. However, none of these requirements shift the burden of proof from the applicant or appellant and, where there is any lessening of the requirement to prove certain facts, this are the subject of specific provision. In the absence of such specific provision, it is clear that it is an underlying principle of Community law that Member States are entitled under their national laws to require appellants to prove they possess the EU rights they claim.
...
90. What the above means for applicants and appellants seeking to rely on EEA rights is that unless able to point to a specific provision of Community law limiting the need to produce evidence, applicants and appellants must expect that a failure to produce relevant evidence may well mean that the decision in their case will be a negative one, based on their failure to substantiate that they have any EEA right.
Ref
https://tribunalsdecisions.service.gov.uk/utiac/37852
I do recall one member's reported case (earlier this year) that hinged on case law and a judge rejecting HO insistence on a RC for establishing an EFM's rights. Unfortunately I've not been able to find that post again (yet).
A COA is all about demonstrating a proof of a right to work to anyone who wants to see such a proof.
The right to work may still be there (by virtue of someone's sponsor being a qualified person).