Should leave if visa exprired? (waiting RC)

[ZoeMC]

Hi guys,

Hope this is the right section and this question has not been asked too many times (I couldn't find it)!
I'm a visa-national that have her Tier-5 expiring on the 28th of August this year. I've applied for a RC (EEA/EFM route). I'll probably receive my RC around October/November.

Could I stay in the UK, even if my visa expired and even if the 28 days have past, waiting for the RC?

Thanks!

[CR001]

What is the relationship of the EU citizen to yourself?

[ZoeMC]

What is the relationship of the EU citizen to yourself?

Unmarried Partner!

[CR001]

Have you submitted substantial evidence for last 2 years proving durable partner in a 'relationship akin to marriage' showing shared financial/accommodation etc committments?

[ZoeMC]

Have you submitted substantial evidence for last 2 years proving durable partner in a 'relationship akin to marriage' showing shared financial/accommodation etc committments?

Yes of course! I made the application very well!

[CR001]

Then you should be fine to continue waiting. If you work, that might be the issue if you don't have COA with right to work.

[ZoeMC]

Hey CR001,

Thank you for helping out!

I did some more researchers and found this:
https://www.citizensadvice.org.uk/law-a ... ayed-visa/
So I guess, as I did the request 3 months before my visa expires, I still have those 90 days.
For working I saw the only thing is to have a COA.

Cheers

[noajthan]

Hi guys,

Hope this is the right section and this question has not been asked too many times (I couldn't find it)!
I'm a visa-national that have her Tier-5 expiring on the 28th of August this year. I've applied for a RC (EEA/EFM route). I'll probably receive my RC around October/November.

Could I stay in the UK, even if my visa expired and even if the 28 days have past, waiting for the RC?

Thanks!

If your EFM RC is refused and the current visa has expired by that time then you will be an overstayer.

And as an EFM you are not going to be issued a COA that confirms a right to work.
You will have to wait for your RC for such confirmation of status.

[ZoeMC]

If your EFM RC is refused and the current visa has expired by that time then you will be an overstayer.

And as an EFM you are not going to be issued a COA that confirms a right to work.
You will have to wait for your RC for such confirmation of status.

Thanks for the info noajthan, I wasn't aware that, in case of an EFM application, the COA is not issued.
Could you please tell me where did you find this information?

I also found out that, as declared in the UK Immigration act 3C, if someone has made a new application (VISA or RC I guess) is not considered an overstayer until he gets an answer from the Home Office.

[noajthan]

Thanks for the info noajthan, I wasn't aware that, in case of an EFM application, the COA is not issued.
Could you please tell me where did you find this information?

I also found out that, as declared in the UK Immigration act 3C, if someone has made a new application (VISA or RC I guess) is not considered an overstayer until he gets an answer from the Home Office.

The devil is always in the detail

HO internal guidance is your friend if you want to get into the head of the caseworker who will weigh up and assess your case.

You must issue a ‘short’ COA to extended family members who have submitted an application for a residence card regardless of the level of evidence submitted with their application

Ref: https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- page 30

Don't mix up the two migration paradigms.
My understanding is UK Immigration Regs don't apply to those on EU migration trajectory.
Can't find the ref now - will dig it out when I have time.

[noajthan]

Found what I was referring to - may be of interest...

For example a visa national overstays their period of limited leave to enter as a visitor, and then applies for a residence card on the basis of marriage to an EEA national. They are unable to provide proof of their claimed relationship to the EEA national and the application is refused.

As the person was neither admitted to nor got a right to reside in the UK under the EEA Regulations, for the purpose of enforcement action they should be dealt with as an overstayer under section 10 of the 1999 Act and not the EEA Regulations

Ref: https://www.gov.uk/government/uploads/s ... _clean.pdf

[ZoeMC]

oh I see. My understanding though is that I'll be issued with a "short" COA.. what that means?

I need to admit I couldn't easily find clear rules for EU migration. I was treating them as equals.
Should be also a question of common sense foe me. If I made an application for a RC I should have the right to reside waiting for an answer. If I'm refused it's another matter. Sill not clear for me.
Thank you for your help

[secret.simon]

The way I understand it, the rights of direct family members of EEA citizens flow directly from their relationship and hence they have the right to stay with the EEA citizen in the UK even without any documentation.

However, the rights of an EFM only start after they are certified by the Home Office by the issuance of a Residence Card (not CoA).

Page 25 of the Processes and procedures for EEA documentation applications states;

The COA does not confirm that the holder has a right of residence in the UK:
a‘short’ COA confirms receipt of the holder’s application.It does not confirm any right to work for the applicant

Page 30 of the same document states;

Extended family members, including durable partners, of EEA nationals do not enjoy an automatic right of residence in the UK until they have been issued with a document by the Home Office confirming such a right.

So, between the time of the end of your T5 visa and the grant of a Residence Card, I believe that you will be an overstayer.

To avoid this having a negative impact on any future application, such as naturalisation, I would suggest leaving the UK before the end of your T5 visa.

Remember that Section 3C leave does not apply to applications made under the EEA regulations. You are dealing with two completely separate systems of law here and the rules of one do not apply to the other.

As an aside: can I suggest to the mods to move this thread to the EEA-Route Applications forums?

PS: Just to clarify, the 28 days of grace at the end of the visa apply to future immigration applications under the UK Immigration Rules. You would still be an overstayer from the day the visa expired and that would be accounted for in any future naturalisation application or applications under the EEA Regulations, both of which implement different laws and definitions.

[noajthan]

oh I see. My understanding though is that I'll be issued with a "short" COA.. what that means?

I need to admit I couldn't easily find clear rules for EU migration. I was treating them as equals.
Should be also a question of common sense foe me. If I made an application for a RC I should have the right to reside waiting for an answer. If I'm refused it's another matter. Sill not clear for me.
Thank you for your help

They are not equals!
Those on the EU migration route are the special, blessed ones. (The UK migration route is no picnic).
However some on EU trajectory are more equal than others (namely FMs over EFMs).

Suggest do not attempt to use logic or common sense in this matter - you are dealing with Byzantine type regulations administered by a Kafkaesque bureaucracy. And now there's Brexit to factor in.

There is a Chinese curse which says “May he live in interesting times.” Like it or not, we live in interesting times. They are times of danger and uncertainty; but they are also the most creative of any time in the history of mankind

[RFKennedy]

[ZoeMC]

I see what you mean and I'll take the risk I guess

Out of topic: if biometrics letter is received that means I've been accepted right?

[noajthan]

I see what you mean and I'll take the risk I guess

Out of topic: if biometrics letter is received that means I've been accepted right?

It means HO have managed to generate a letter, send it to correct destination and invite you to enrol biometrics. (Is it addressed to you?).

[secret.simon]

if biometrics letter is received that means I've been accepted right?

Nope. It means that they have found the application and opened the envelope.

Only after biometrics are submitted does the application even start getting processed.

Even people whose applications fail must submit biometrics for the application to be considered to begin with.

[ZoeMC]

All right! I got it! ... and yes, it's addressed me!
Thank you both

[Richard W]

And as an EFM you are not going to be issued a COA that confirms a right to work.
You will have to wait for your RC for such confirmation of status.

While that seems to be the documented procedure, there is at least one reported instance of a durable partner receiving a positive CoA. It seems that at least some case workers are treating residence cards of EFMs as visas, and applying Section 3C. As a residence card doubles as permission to be treated as a family member of the sponsor, this makes sense, even if it is not legally enforceable behaviour.

[noajthan]

And as an EFM you are not going to be issued a COA that confirms a right to work.
You will have to wait for your RC for such confirmation of status.

While that seems to be the documented procedure, there is at least one reported instance of a durable partner receiving a positive CoA. It seems that at least some case workers are treating residence cards of EFMs as visas, and applying Section 3C. As a residence card doubles as permission to be treated as a family member of the sponsor, this makes sense, even if it is not legally enforceable behaviour.

Evidently an exception that proves the existence of the rule.
If only OP knew when such an incompetent caseworker was on duty and could have timed the despatch of the application accordingly.

[Petaltop]

And as an EFM you are not going to be issued a COA that confirms a right to work.
You will have to wait for your RC for such confirmation of status.

While that seems to be the documented procedure, there is at least one reported instance of a durable partner receiving a positive CoA. It seems that at least some case workers are treating residence cards of EFMs as visas, and applying Section 3C. As a residence card doubles as permission to be treated as a family member of the sponsor, this makes sense, even if it is not legally enforceable behaviour.

Evidently an exception that proves the existence of the rule.
If only OP knew when such an incompetent caseworker was on duty and could have timed the despatch of the application accordingly.

[ZoeMC]

So, between the time of the end of your T5 visa and the grant of a Residence Card, I believe that you will be an overstayer.

Thank you for the hint secret.simon. That is a very interesting point I hadn't thought about. But, as it's not specified, should there be some point a could rise in my favour?

To avoid this having a negative impact on any future application, such as naturalisation, I would suggest leaving the UK before the end of your T5 visa.

I don't plan to stay longer than my "future RC" expiration date neither make other applications.

Just to clarify, the 28 days of grace at the end of the visa apply to future immigration applications under the UK Immigration Rules.

As I'm kind of switching from UK Immigration Rules to EEA Regulations and, still I haven't received my RC. Could I claim I'm still under Immigration Rules and Section 3C still applies to me?

Despite all that, 3C-3D Leave states, page 8:

An application for a residence card is not an application to extend or vary leave, it seeks confirmation that rights under the EEA Regulations are being exercised therefore the applicant does not require leave to enter or remain.

Does it says I can stay?

[Richard W]

As I'm kind of switching from UK Immigration Rules to EEA Regulations and, still I haven't received my RC. Could I claim I'm still under Immigration Rules and Section 3C still applies to me?

Despite all that, 3C-3D Leave states, page 8:

An application for a residence card is not an application to extend or vary leave, it seeks confirmation that rights under the EEA Regulations are being exercised therefore the applicant does not require leave to enter or remain.

Does it says I can stay?

Some solicitors claim you are covered by Section 3C. It seems a very confused area. One thing that would protect you is that it might not be 'proportionate' to remove you between visa expiry and the grant of the residence card.

[secret.simon]

One thing that would protect you is that it might not be 'proportionate' to remove you between visa expiry and the grant of the residence card.

While it may or may not be proportionate to remove her, she would be an overstayer and that would affect her "good character" for any forthcoming applications.

As I'm kind of switching from UK Immigration Rules to EEA Regulations and, still I haven't received my RC. Could I claim I'm still under Immigration Rules and Section 3C still applies to me?

Err, no, It means that you are not covered by either the Immigration Rules or by the EEA Regulations, which is why you are illegally in the UK.

Despite all that, 3C-3D Leave states, page 8:

An application for a residence card is not an application to extend or vary leave, it seeks confirmation that rights under the EEA Regulations are being exercised therefore the applicant does not require leave to enter or remain.

Does it says I can stay?

The sentence immediately preceding the sentence you have highlighted states

Section 3C does not extend leave where an application is made for a residence card under the EEA Regulations

The reason that Section 3C does not apply is because EEA applications are not requests for leave to remain, but merely confirmation of a right to stay in the UK.

But for EFMs, such a right to stay in the UK is not pre-existing. It only comes into existence when the Home Office confirms it.

So, between the time your T5 visa expires and your EFM RC is issued, your residential status in the UK would be as an illegal overstayer.

[ZoeMC]

The reason that Section 3C does not apply is because EEA applications are not requests for leave to remain, but merely confirmation of a right to stay in the UK.
But for EFMs, such a right to stay in the UK is not pre-existing. It only comes into existence when the Home Office confirms it.
So, between the time your T5 visa expires and your EFM RC is issued, your residential status in the UK would be as an illegal overstayer.

I'm still doing some researches on this but I'm not sure it's so straight forward as you state above. I reckon it's clearly, like Richard W said, an area that is not openly covered.

I'm aware of the fact that Section 3C does not apply to me, as stated on the same paper "I'm seeking confirmation that rights under the EEA Regulations are being exercised" so "I do not require leave to enter or remain".
Being under EEA Regulations I do not "enjoy an automatic right of residence in the UK until they have been issued with a document by the Home Office confirming such a right" and know that, this is why I'm asking for a Residence Card BUT I couldn't find nothing defining I need to leave while I'm waiting confirmation from the Home Office.

Why shouldn't I enjoy the right of an "extended leave" seeking rights under EEA Regulations if people under UK Immigration rules can?