EEA4 application June 2016 - No more CoA given !!!!

[Benito11]

Richard and Noajthan,

Can you please elaborate more on this? It is very important point for me ( perhaps other forum members too) .
Do you know someone who got sanctions just because his RC ( 5 year resident card ) expired before PR application?! I can't find anything online ......

@ Richard,

You have said that"having a valid RC in not required by law ". I understand the landlords and employers point that you made here . But what direct effect has this with the PR applicant?! Is his/ her application jeopardised? Your opinion is greatly appreciated.

@ Noajthan

Do you know if someone ever got penalised for this? What I am trying to find out is this, can Home Office refuse an application if RC ( 5 years stamp) has runs out/ expired ?!
As always I Appreciate your opinion/response

Benito11

[Richard W]

You have said that"having a valid RC in not required by law ". I understand the landlords and employers point that you made here . But what direct effect has this with the PR applicant?! Is his/ her application jeopardised?

As I see it, you're asking for a statistical analysis of data I do not have. I have heard of no reports of it having an effect, and Home Office literature does not suggest that there is any direct risk.

I think the loss of your job exceeds any 'proportionate sanctions' there might be if British law were different.

[Richard W]

I really am confused at the moment. Therefore would appreciate if you guys could give me feedback ( good or bad) . Especially Noajthan, Simon, Richard .

In normal times, I would suggest applying for a plain RC just to get the CoA. However, I don't know how one handles the problem that the latest evidence and required (or almost required) documents are already with the HO as part of the DCPR & PRC application.

[Benito11]

@ Richard,

As always thank you for your response. I Lost the job because :

" You have explained the grounds for you having a Right to Work is by virtue of you partner being from an EEA country. As I understand it this may allow you to have the Right to Work if you or they acquire the correct documentation from the Home Office. The company is not permitted by statute to simply rely on a copy of your Marriage Certificate and your partner's passport as entitlement of your Right to Work. "

This is the letter from HR. It looks so dumb to me but ok. And second reason was:

"
as you have requested, reviewed the paperwork you have provided as a result of the company's audit. It showed that your prior Residence Permit expired on 7 July 2014. You have advised that you have made an application to the Home Office for permanent residency on 23 June 2016. Our understanding is that if you have made an application to the Home Office it can (in certain circumstances) allow you the Right to Work whilst the application is processed. However, one of the requirements for this is that the application has to take place before the expiry of your existing rights.""

Is this last bit true?!
I can't find it anywhere!!!

Many thanks,
Benito11

[Benito11]

@ Richard

Thanks again. I don't know really because my current PR application is not refused( I am not expecting it either) . The only issue is the lack of CoA and biometrics. Therefore I can't simply cancel my EEA4 application.

Another point that I really need to know is this:
Do you believe that after July 2014 ( when my RC expired) I simply became illegal or " overstayer "?!
I was together with my spouse ( EU national) throughout this time. In full time and well paid jobs too.
This is the key problem, they ( my employer) are 100% convinced that I am illegal/not entitled to be in the UK. Strange.

Benito11

[Richard W]

"However, one of the requirements for this is that the application has to take place before the expiry of your existing rights."

Is this last bit true?!
I can't find it anywhere!!!

(I hope the moderators move this post and the one it answers to your thread.)

They've got it confused with the law for non-EEA rights (and partly with the law for EEA extended family members, which thankfully is irrelevant here). For example, if you were here via a UK spouse visa, you'd be an illegal immigrant for waiting so long before extending your visa.

The first part is wrong, but looks close to various bits of law, but the resembled bits do not interrelate. They've confused your having a 'right-to-work' with their having a 'statutory defence' against a fine for illegal employment. The evidence provided would provide a good defence against a criminal charge. They would not have reason to believe you were an illegal worker. Did you show your family permit? Although it's expired, it is evidence that your claim to be a family member of an EEA national was still plausible it was issued.

The second part is completely wrong.

I can go into more detail if you want - someone else may beat me to it.

[Richard W]

Another point that I really need to know is this:
Do you believe that after July 2014 ( when my RC expired) I simply became illegal or " overstayer "?!
I was together with my spouse ( EU national) throughout this time. In full time and well paid jobs too.
This is the key problem, they ( my employer) are 100% convinced that I am illegal/not entitled to be in the UK. Strange.

It's not strange at all. If an old-rules spouse visa had expired in July 2014 and ILR or Further Leave to Remain (FLR) not been applied for, with neither of them being granted, the applicant would have become illegal once appeals were exhausted. (A new-rules spouse visa couldn't have expired so long ago, but the position would have been the same.)

Neither your employer nor, worse, your union seems to have studied the EEA rules. Yours is not a difficult case to understand.

The EEA system works quite differently. In the UK, EEA nationals and their direct family members nominally don't need certificates or cards. However, the British government evades the law by using family permits and making carriers keep non-EEA family members away from the British borders, and for employment and housing uses the system of 'statutory excuses', which makes a CoA or card mandatory with strict employers. Making a card a condition of rights is contrary to the free movement directive 2004/38/EC, but again the British government seems to have successfully evaded the law.

So, you are are lawfully present here and permitted to work. It's just that the British government is trying to prevent you from being employed - or more precisely, are heedless of collateral damage.

As to the legal position - how sure can an employer be that your wife is Dutch? I can find apparent Dutch passports being advertised for €600, and I am not sure that they are bad quality.

[Richard W]

I called Home Office and was told that they are not sending any Confirmation of Applications ( CoA) anymore!!! and that the fee(£65) deduction will be used as a reference instead!! Can this be true ?!

Have you enrolled your biometrics yet? I believe the official position is that you haven't applied until the biometrics are enrolled. If that is the case, you won't get your CoA until they are enrolled.

I trust you are studying the timeline threads - it looks as though you may have been misinformed about the non-sending of CoA.

[noajthan]

Richard and Noajthan,

...

@ Noajthan

Do you know if someone ever got penalised for this? What I am trying to find out is this, can Home Office refuse an application if RC ( 5 years stamp) has runs out/ expired ?!
As always I Appreciate your opinion/response

Benito11

It's all baloney.

Are you married to your sponsor?
If so you don't have to hold a RC so it is not any sort of prerequisite for DCPR.

Keep all those HR letters for when you file a case for compensation and reinstatement.

[Benito11]

@ Richard,

Thanks again for being helpful. If you ever decide to visit Amersham ( if you like old people and cows that is ) please let me know. Beers are on me

But on serious note, the point that you made regarding family permit and prints that state if someone is family member of an EEA national. The same things are printed in the RC ( although without names) !! It was not enough for my employer. They want I quote " something on paper with your name confirming your legality " or else they risk being fined!!
I understand their position too.
They were however not even willing to suspend me , let alone give me unpaid leave until I'd be in position to correctly demonstrate my right to work.

My wife Is Dutch born and bred there ( unfortunately ) . I gave them copy of her passport ( not the original as HR claims) as her original one is with Home Office too ( EEA3) . I offered to bring her( my partner) in the meeting too , believe it or not .
Our children's birth certificates ( both born in Britain) proved useless too.

they rely on the ECS checks. I got a copy of that too. It says that " we are unable to provide you with a statutory excuse at this time as certificate of Aplication has not been issued to this person " . We know the reason for that already.
But, at the end of the ECS document I found something rather bizarre!!
" While the person above might have the right to reside and work in the UK , the Home Office has not issued Certificate of Aplication to this person" !! Wtf!
" you might wish to take professional advice before making a employment decision"!

I can see why employers might be paranoid and scared when they have to deal with a complex situation like mine . Home Office puts them between an hard and rock place , I guess.

I'll keep you updated of course....
Thanks again Richard, although I don't know why there was no response from Noajthan yet. Perhaps he is gone clubbing

Benito11

[noajthan]

Do keep up. Read post above yours again.

[Benito11]

Ah cheers mate......
I have a meeting on Monday with a solicitor. I guess only time and couple of 1000's £ will tell who is right.
Good night .....

Benito11

[noajthan]

Are you married to your Union citizen sponsor? (you post in terms of "partner").

That makes a big difference.
If unmarried you may find yourself on a sticky wicket.

Edit I see you have stated earlier that you are married.

And first rule of UK immigration is: don't listen to UK helpline.
Notoriously unreliable and unaccountable for their advice (if anyone actually acts on it).

[bluecole2]

Have you considered contacting your MP to see if s/he be of any help?

Best wishes

[Richard W]

This post explains my earlier posts, but they're probably not immediately helpful.

But on serious note, the point that you made regarding family permit and prints that state if someone is family member of an EEA national. The same things are printed in the RC ( although without names) !! It was not enough for my employer. They want I quote " something on paper with your name confirming your legality " or else they risk being fined!!

The expired RC demonstrates that you seemed legal when it was issued in 2009. (The standard of proof is, I believe, supposed to be 'on the balance of probabilities'; certainly it's not 'beyond reasonable doubt'.) The expired family permit would have demonstrated that you still seemed legal when it was issued in 2014. That would only have helped if they were interested in establishing the facts; they wanted a statutory excuse.

My wife Is Dutch born and bred there ( unfortunately ) .

Would HR have been competent to distinguish a Dutch citizen from an Afrikaner with a forged Dutch passport?

[noajthan]

Here you go.

And in answer to your quesion

"as you have requested, reviewed the paperwork you have provided as a result of the company's audit. It showed that your prior Residence Permit expired on 7 July 2014. You have advised that you have made an application to the Home Office for permanent residency on 23 June 2016. Our understanding is that if you have made an application to the Home Office it can (in certain circumstances) allow you the Right to Work whilst the application is processed. However, one of the requirements for this is that the application has to take place before the expiry of your existing rights."

Is this last bit true?!
I can't find it anywhere!!!

Many thanks,
Benito11

HO Verification Checks
Point 3 appears to apply to you. employer should have simply pulled their finger out and done the check.

Ref page 18: https://www.gov.uk/government/uploads/s ... uly_16.pdf

and

In-time applications
A person’s application must be made before their permission to be in the UK and to do the work in question expires for it to be deemed ‘in-time’. If so, any existing right to work will continue until that in-time application has been determined

Your 'permission' and right to work comes from the Directive (via UK's EEA Regs). Not from possession of a RC.
A RC only demonstrates confirmation of right (and only at time of issue). So an expired RC is not expired permission.

Employer has jumped the gun.
HR should have waited until approx 14 days after you have enrolled biometrics (officially filed application) before running the check.

Take them to the cleaners.

[Benito11]

@blucole,

Good morning,

I did contract my local MP . She sent me an email yesterday:

" Thank you for your email to Mrs Cheryl Gillan MP; I would like to acknowledge receipt of this message and advise that Mrs Gillan will make enquiries on your behalf with her colleauges and will come back to you when she has more information.
Yours sincerely
Mary
Mary Shaw
Office Manager for the Rt Hon Cheryl Gillan MP
Member of Parliament for Chesham and Amersham

I am hoping that she will speed up the biometric enrolment thing and CoA more than anything, really. ( EEA4 sent 6 weeks ago) .
With my employer i need a solicitor(got an appointment on Monday) . We will see how it goes.

Cheers for the suggestion,

Benito11

Have you considered contacting your MP to see if s/he be of any help?

Best wishes

[asp]

I wonder whether timing is an issue here. When was the ECS check done?

Employers and applicants are told (but often don't) to allow sufficient time for the papers to be received and input onto UKVI systems before contacting ECS. From previous backlog stories we know that inputting takes a couple of weeks in normal times but you applied just after the referendum and there are likely to have been a lot more applications than usual at that time. A CoA can only be issued, or produce a positive ECS check, when the application is on the system so timing is crucial.

It is understandable that your employer got twitchy about you having only a long expired RC. EU rights are not enforceable against your employer, only the UK govt, so the employer really won't care however you explain it to them. As another post states, one man's genuinely Dutch wife is another man's South African wife with a false Dutch passport. It is a world of pain that employers will happily avoid by asking for the "right" bit of paper.

You wouldn't get far enforcing against the UK govt though. The penalty regime is subtle. My understanding is that under the 2006 Act employers are not subject to an absolute obligation to conduct right to work checks, hence not a breach of your Treaty Rights. However if they don't they won't have a defence against a penalty if they are then found to have an illegal worker. So it is like home insurance, you don't have to buy it but in the long term it may be in your interests. The new s35 offence in the 2016 Act is also likely to make employers super cautious.

Haven't heard about a change of practice in respect of CoA.

[Benito11]

@ Richard,

' morning,

I don't think that they have issues/suspicions with my wife's true nationality. After all they have met her before at our annual staff parties etc for example. She came here in June 2007 with a job offer straight from the Netherlands.
Plus, I gave her ( my manager) my partners email acknowledgment from Home Office( EEA3 application) , it includes a Reference number, too.

They( employer) are 100% certain that I am NOT entitled to live and work in Britain. Our internal legal adviser thinks the same as well.
For a moment I honestly thought that they might be right. Hence why I was a bit paranoid yesterday .

Thank you as always,

Benito11

[noajthan]

The passport question is a side show and irrelevant. Employers are incapable of doing more than cursory checks on passports.

Employer has clearly and unfairly, without justification. jumped the gun.
HR should have waited until approx 14 days after you have enrolled biometrics (ie an officially filed application in flight) before running the check.

Give them a last chance. You don't need to pay a fancy lawyer £500 to explain that to employer.

Failing that, take them to the cleaners.

[Benito11]

@noajthan

As always thank you for your articulated response and link above. I did my best to explain the things to not only my manager but also HR, Union etc.
I accept my error too. I could have applied on " time" for PRC and avoid confusion. But the stamp in my passport doesn't give me rights which I already have as long as I meet the condition of being a family member of an " qualified " EU member.

They are not willing to talk further until I produce evidence ( preferably from Home Office) and even if I go back I will lose years of service I.e seniority. On top of this they have :

" In respect of the additional monies you claim are due for notice period and untaken holiday, these would not normally be payable in these circumstances, as the termination was the result of your inability to demonstrate a correct Right to Work. However I am currently investigating any outstanding holidays and lieu days and your notice period and will advise next week if any payments are due to you.

This makes my blood boil.

Benito11

[noajthan]

Suggest write back to advise employer that:
1) HR has not yet conducted a valid check (14 days after your biometrics);
2) until that time you enjoy a persisting right to work (which employer has acknowledged by employing you in the first place);
3) because of #1, (and despite #2), you have been unfairly dismissed and reserve your options;

Invite them to consider their position very carefully and to reconsider their uninformed actions to date.

[Benito11]

@ asp

Thanks for the message. The ESC checks were done last week I believe. 5 weeks after the EEA3+EEA4 applications were sent to HO.

You said somethings interesting that actually worries me a bit. " the EU laws are not enforceable against my employer ".
What about legal action?! The point is, my contract was/ is still legal. An expired RC does not affect the legality of my employment contract.

Thanks,
Benito11

I wonder whether timing is an issue here. When was the ECS check done?

Employers and applicants are told (but often don't) to allow sufficient time for the papers to be received and input onto UKVI systems before contacting ECS. From previous backlog stories we know that inputting takes a couple of weeks in normal times but you applied just after the referendum and there are likely to have been a lot more applications than usual at that time. A CoA can only be issued, or produce a positive ECS check, when the application is on the system so timing is crucial.

It is understandable that your employer got twitchy about you having only a long expired RC. EU rights are not enforceable against your employer, only the UK govt, so the employer really won't care however you explain it to them. As another post states, one man's genuinely Dutch wife is another man's South African wife with a false Dutch passport. It is a world of pain that employers will happily avoid by asking for the "right" bit of paper.

You wouldn't get far enforcing against the UK govt though. The penalty regime is subtle. My understanding is that under the 2006 Act employers are not subject to an absolute obligation to conduct right to work checks, hence not a breach of your Treaty Rights. However if they don't they won't have a defence against a penalty if they are then found to have an illegal worker. So it is like home insurance, you don't have to buy it but in the long term it may be in your interests. The new s35 offence in the 2016 Act is also likely to make employers super cautious.

Haven't heard about a change of practice in respect of CoA.

[Benito11]

@noajthan

Thank you for suggesting that. Good points for those that are willing to listen and think rationally, however I am dealing with very arrogant and stubborn bunch of people. This feels like I need to go and explain to them how to do their job properly.

It will be different ball game when a solicitor sends them a letter . At least I hope so .
I will update you.



Benito11

[noajthan]

@noajthan

Thank you for suggesting that. Good points for those that are willing to listen and think rationally, however I am dealing with very arrogant and stubborn bunch of people. This feels like I need to go and explain to them how to do their job properly.

It will be different ball game when a solicitor sends them a letter . At least I hope so .
I will update you.

Benito11

Indeed.
It seems you couldn't even trust them to organise a doping scam in an egg and spoon race.

Good luck.