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

[Richard W]

OK, the promised demolition job.

One key point that I don't have a source from is that adults of sound mind have a right to accept employment in the UK by default. That right has to be explicitly removed, as it is for most of the world's population. The primary point of removal of the right is now Section 24B of the Immigration Act 1971, which came into force a few weeks ago:
1.

(1)A person (“P”) who is subject to immigration control commits an offence if—
(a)P works at a time when P is disqualified from working by reason of P’s immigration status, and
(b)at that time P knows or has reasonable cause to believe that P is disqualified from working by reason of P’s immigration status.

(2)For the purposes of subsection (1) a person is disqualified from working by reason of the person’s immigration status if—
(a)the person has not been granted leave to enter or remain in the United Kingdom, or
(b)the person’s leave to enter or remain in the United Kingdom—
(i)is invalid,
(ii)has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii)is subject to a condition preventing the person from doing work of that kind.
<snip>

(8)The reference in subsection (1) to a person who is subject to immigration control is to a person who under this Act requires leave to enter or remain in the United Kingdom.
<snip>

There are several apparently inequivalent legal definitions of 'subject to immigration control'.

A second point is that the EEA Regulations do not remove anyone's right to work.

You have explained the grounds for you having a Right to Work is by virtue of you partner being from an EEA country.

Legal background:
2.

A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.

3.

The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to rights of
entry into, and residence in, the United Kingdom, in exercise of the powers conferred
upon him by that section, and of the powers conferred on him by section 109 of the
Nationality, Immigration and Asylum Act 2002, makes the following Regulations:

4.

In these Regulations, “qualified person” means a person who is an EEA national and in the United Kingdom as–
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student.

5.

A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.

Thus it is essential that Mrs Benito11 is a worker (or a qualified person in some other way). Be thankful she isn't claiming self-sufficiency on the basis of your salary. I wonder if the employer simply failed to notice the point about being a qualified person.

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.

Legal background:
6.

—(1) Subject to paragraph (2), for the purposes of these Regulations the following
persons shall be treated as the family members of another person–
(a) his spouse or his civil partner;
<snip>

7.

A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.

There's nothing there about requiring any documentation. (Note that entitlement to reside does not imply entitlement to enter!)

I had hoped to find a more digestible on a government website, but I couldn't. Perhaps the government intends to make residence cards mandatory, as several other countries already do.

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 of course, applies to a statutory defence against a fine for employing an 'illegal worker'. An employer can be fined up to £20,000 for employing someone who is an illegal worker, and can lose permission to be a sponsor for Tier 2 visas. The only legal defences are that the worker was not employed, was not an illegal worker, or that the employer had properly recorded specified documentary evidence that strongly suggests that the worker was not an illegal worker. The documents do not have to be genuine; it is merely necessary that there be no reason for the employer to doubt that they were genuine.

It is not a legal requirement for an employer to obtain a statutory defence for each employee. If it were, the UK government would clearly be in breach of the EU law (Directive 2004/38/EC Regulation ?? to be precise), because of the limited range of documentary evidence allowed for non-EEA citizens present under the EEA Regulations. Has the apparent loophole been challenged in the courts?

[akhr90]

Application posted on : 23.06.2016
Received by HO on : 24.06.2016
Payment taken on : 29.06.2016
Bio letter received on : 30.07.2016
Biometrics Enrolled on : 01.08.2016
COA With Work : 05.08.2016
Resident Card Received on : ???
Documents Returned on : ???

They are still issuing COA, please check my above timeline until today. So you should talk to them.

Thanks.

AK

[Richard W]

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;

What on earth do you mean by a 'persisting right to work'? Benito11 still has a 'right to work' - and that is a matter of fact, like British citizenship is, not a Home Office decision. Even if we were talking of a 'right to work' extended by Section 3C (which we aren't by any stretch of the imagination - the OP is a direct family member), it would exist or not irrespective of whether the home Office had not yet entered the application or appeal into their employee checking system's data bank.

Is there not the issue that the Home Office deems an application not to have been made until biometrics (when needed) have been enrolled? In this case, we neglected the helpline equivalent of 'Is the device plugged in?' I for one was guilty of believing the helpline; I couldn't find any evidence that a CoA had to be issued when an application for a PRC was made. The directive requires that a PRC be applied for before a RC expires, and expects applications to be handled promptly, so in the directive's scheme, there would be less need.

I'd be surprised if the employer ever checked Benito11 had a right to work. (They may have asked him.) Did they check that Mrs Benito11 was working? I rather suspect that they merely checked that he had a valid RC, which as we all know, provides a statutory excuse but does not prove, for example, that insurance premiums are up-to-date when the sponsor is self-sufficient.

If you mean a 'persisting statutory excuse', that died in 2015 (anniversary of presentation to employer) or earlier (expiry date) as a result of the RC expiring in 2014.

I'd be tempted to point out that by the employer's own arguments, the employer is guilty of the criminal offence of illegally employing the OP from at least 12 July 2016. 'Reasonable cause to know' applies from then; if their argument is that they 'know' his employment would be illegal, then they have been guilty for much longer - unless they can hide behind a corporate structure. However, it probably wouldn't be productive, especially if the OP intends to resume working for his ex-employer.

Suing for unfair dismissal might achieve reinstatement (with continuity of service) as opposed to re-employment (without continuity of service).

[noajthan]

Verb: persist

continue to exist; be prolonged

What you have just said in 500 words (or whatever it is) I said in 4: persisting right to work = continuing right to work = right to work.

First helpline check: am I dealing with a sentient carbon-based lifeform.

Yes, the application is not made until biometrics are enrolled. That's a given.

And 'employer' (I use the term loosely) has clearly failed in its obligation to perform a check at the right time.
So they have made a flawed decision (again I use the term loosely) based on missing information and at the wrong time.

One wonders how any business can survive for long when run by clowns like that.

[Benito11]

@ Richard,

You went to great lengths there with the previous post. Thanks a lot . I am definitely taking your arguments on board and will present them tomorrow to the solicitor. People like you and @noajthan are a reason why so many of us are using forums like this one.

To answer the question from your second post. No , they didn't ask whether Mrs. benito11 is/was working albeit this was crucial to all this. When I presented my marriage certificate, and other proof of our relationship, my employer laughed at me. Seriously, they thought that I was joking with them. They haven't got a clue how EU laws work. Ironically more than half in our company are/ were EU nationals.

I am going to be completely honest with you all, I want to sue and be reinstated ( with continuity of service ) with full terms and conditions. I will persist that my employment contract was never illegal , despite the lack of a " stamp" .

Benito11

[Benito11]

@akhr

Thanks for posting your timeline. I know that they DO issue CoA's ( at least I do now) however I kept being told different things. Every caseworker/ call centre worker from HO gives different and sometimes conflicting information.
Initially, this was the main reason ( whether they do or don't issue CoA anymore) why I joined this forum but things have gone from bad to worse now since.

Benito11

Application posted on : 23.06.2016
Received by HO on : 24.06.2016
Payment taken on : 29.06.2016
Bio letter received on : 30.07.2016
Biometrics Enrolled on : 01.08.2016
COA With Work : 05.08.2016
Resident Card Received on : ???
Documents Returned on : ???

They are still issuing COA, please check my above timeline until today. So you should talk to them.

Thanks.

AK

[Benito11]

@ Noajthan


Thank you. I have to admit that I have overlooked this very important point. Thanks for pointing that out. The ESC checks were done before biometric enrolment I.e wrong time and as a result wrong information received .

can I be held responsible for not telling the HR when to correctly perform ECSc checks?! I hope not hence why I didn't reply to her email anymore.

Benito11

Verb: persist

continue to exist; be prolonged

What you have just said in 500 words (or whatever it is) I said in 4: persisting right to work = continuing right to work = right to work.

First helpline check: am I dealing with a sentient carbon-based lifeform.

Yes, the application is not made until biometrics are enrolled. That's a given.

And 'employer' (I use the term loosely) has clearly failed in its obligation to perform a check at the right time.
So they have made a flawed decision (again I use the term loosely) based on missing information and at the wrong time.

One wonders how any business can survive for long when run by clowns like that.

[noajthan]

@ Noajthan

Thank you. I have to admit that I have overlooked this very important point. Thanks for pointing that out. The ESC checks were done before biometric enrolment I.e wrong time and as a result wrong information received .

can I be held responsible for not telling the HR when to correctly perform ECSc checks?! I hope not hence why I didn't reply to her email anymore.

Benito11

No, you are not responsible. That is why HR lady pays herself the big bucks. To know the rules and do her job.

It is completely erroneous, flawed and consequently wholly unjust.
It is a significant core point in the tribunal case you may file.

[Richard W]

What you have just said in 500 words (or whatever it is) I said in 4: persisting right to work = continuing right to work = right to work.

That right to work persists even if Benito11 receives a negative CoA and the HO declines to confirm his right to work. On the other hand, in such circumstances, a statutory excuse would at best time out.

I did find this statement in Civil Penalty FAQs:

In respect of repeat checks on existing employees, if you are reasonably satisfied that your employee has an outstanding Home Office application, or pending appeal or administrative review to vary or extend their leave in the UK, your time-limited statutory excuse will continue from the expiry date of your employee’s permission for a further period of 28 days.

Unfortunately, this doesn't apply to EEA nationals' family members as they don't have leave, and no sane analogy would help the OP. (The insane analogy would say that as family members can, under the rule of law, delay replacing their RCs indefinitely, time-limited statutory excuses for them extend indefinitely.)

One wonders how any business can survive for long when run by clowns like that.

Quite a few businesses survive despite their HR departments. But yes, I too worry about the business.

If they have quite a few family members sponsored by their wives working for them, there could be some nasty shocks in store for them. If the wife temporarily ceased to be a qualified person, and the statutory excuse had lapsed (or never been established), the business would be liable to fines.

As to the option of suspension, the answer to Q74 in the Civil Penalty FAQs is quite vicious:

Q74 What should I do if my employee cannot demonstrate a continued right to work?
A. When you perform a repeat right to work check of an existing employee whose limited right to work in the UK has expired, if they are unable to demonstrate an ongoing right to work, you risk a civil penalty if you continue to employ them and they are no longer permitted to undertake the work in question.

Whilst a matter of employment law and the terms of the employment contract, employees suspended from work or sent on “gardening leave” generally continue to be employees of the employer and, if so, continue to put the employer at risk of a civil penalty if they are not permitted to work.

[Wise]

Your case in one word is your time of applying for your PR and also the first person who opened your passport doesn't care about what the law regarding EU Law that i need will lead to not issued the COA. But COA have not been stop in issuing as the UK is still in the EU up till the end of the negotiation ie 2 yrs

Your employer was just trying to cover their back as regard to your RC has expired for long time. Just take it easy HO will respond to you and your wife together once your wife qualify for the PR you will qualify as well.


Anyway i know is frustrating but just be positive and good luck.

[Richard W]

@Wise:
Unfortunately, the directive does not mandate the issue of a CoA for a PRC application; rather, the directive expects that the PRC will be applied for before the RC expires.

[Benito11]

@ wise


Thank you for your kind words. When you said " you employer was trying to cover their back" do you mean they did the right thing at the time I.e dissmis me? Do you think that my employment contract was illegal due to an expired RC?

I am taking it easy at the moment viva la Netflix but I am not giving up without a fight .

Immigration (European Economic Area) Regulations 2006;

‘A family member of a qualified person residing in the United Kingdom ….. is entitled to remain in the United Kingdom for so long as he remains the family member of the qualified person or EEA national’

and Directive 2004/38/EC;

‘Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self employment there’


Benito11

Your case in one word is your time of applying for your PR and also the first person who opened your passport doesn't care about what the law regarding EU Law that i need will lead to not issued the COA. But COA have not been stop in issuing as the UK is still in the EU up till the end of the negotiation ie 2 yrs

Your employer was just trying to cover their back as regard to your RC has expired for long time. Just take it easy HO will respond to you and your wife together once your wife qualify for the PR you will qualify as well.


Anyway i know is frustrating but just be positive and good luck.

[Benito11]

@richard

Good morning. You hit the nail on the head. This is my biggest concern, really. I hope that in the end I won't end up looking like a complete idiot .

The solicitor ( will meet him today) was very positive about this. The first thing he asked was :
" where is your spouse from and is/was she in full time employment and for how long "?!

After all I contacted him because I found the article of Okuoimose vs city Facilities Ltd ( I believe you know this case ?)) on his website. The headline was:

""Non EEA family member of an EU national always has right to work in the UK despite expiry of resident card in passport""


Benito11

@Wise:
Unfortunately, the directive does not mandate the issue of a CoA for a PRC application; rather, the directive expects that the PRC will be applied for before the RC expires.

[Benito11]

Good morning,

As you know I had a meeting with a solicitor. The key issue is that a PRC was not mandatory and an expired RC doesn't make me an illegal !! Therefore my dismissal looks like unfair at the moment.

I am adamant that as a spouse of an EEA national I have rights to reside and work legally in the UK as long as I remain ( there are exceptions too) close family member of an EEA national who is exercising EU treaty rights .
This is my number 1 defence! ( points from @ Richard were great !!)

I pointed out that ECS checks were done in the wrong order. As @ Noajthan ( cheers for that, mate ) rightly said : applications will be considered valid at the point at which the applicants successfully enrolled their biometrics and a further 14 days wait period is suggested ( page 39)
https://www.gov.uk/government/uploads/s ... uly_16.pdf
The fact is I haven't enrolled the biometrics yet ( application sent 6 weeks ago) .

Any suggestions and comments are appreciated.

Benito11

[Benito11]

Ladies and gentlemen,

I haven't written for some time as there was not much to share. Today, however, I have received my CoA ( with right to work) .
I am still in legal battle with my ex- employer who is convinced that I was not eligible to work in the UK because of " lack" of documentation I.e CoA.
This week my solicitor will discuss the terms of re-engagement with them and if everything goes to plan I will be reinstated back again . Only if they agree to same terms and conditions, pay my loss of earnings and cover the legal costs or otherwise I am willing to go to Tribunal. We will soon find out how they react to this.

Benito11

[noajthan]

Ladies and gentlemen,

I haven't written for some time as there was not much to share. Today, however, I have received my CoA ( with right to work) .
I am still in legal battle with my ex- employer who is convinced that I was not eligible to work in the UK because of " lack" of documentation I.e CoA.
This week my solicitor will discuss the terms of re-engagement with them and if everything goes to plan I will be reinstated back again . Only if they agree to same terms and conditions, pay my loss of earnings and cover the legal costs or otherwise I am willing to go to Tribunal. We will soon find out how they react to this.

Benito11

Well done, you have demonstrated admirable fortitude.
Don't forget compensation for your loss of days in lieu/holiday pay.
And compensation for break in service (loss of seniority).
Bunch of flowers for your wife would be nice too.

[Benito11]

Thank you Noajthan.... You have been very supportive throughout this time. Richard W is also a great contributor.
I will post again as soon as I know something. Hopefully this will help others in this forum before the official day of the Doom approaches.

Benito11

Ladies and gentlemen,





I haven't written for some time as there was not much to share. Today, however, I have received my CoA ( with right to work) .
I am still in legal battle with my ex- employer who is convinced that I was not eligible to work in the UK because of " lack" of documentation I.e CoA.
This week my solicitor will discuss the terms of re-engagement with them and if everything goes to plan I will be reinstated back again . Only if they agree to same terms and conditions, pay my loss of earnings and cover the legal costs or otherwise I am willing to go to Tribunal. We will soon find out how they react to this.

Benito11

Well done, you have demonstrated admirable fortitude.
Don't forget compensation for your loss of days in lieu/holiday pay.
And compensation for break in service (loss of seniority).
Bunch of flowers for your wife would be nice too.