Tier 2 expires before EEA-EFM application answer

[Geneiva]

Hi everyone

I am currently on a Tier 2 sponsored visa, which expires on the 17th of January. I have the option to extend this visa for another 3 years.

I have just submitted my application last week for an EEA-EFM route residence card, a very solid application which I am quite confident with (2 years+ documented living together inc joint mortgage and joint banking, photos and holiday receipts, proof of sponsor employment).

The problem is with the average 6 months wait for the EEA residence card to be approved, this means I will not get an answer until February - there is very likely 2-6 weeks between my Tier 2 expiring and my residence card coming through, and a small chance that the application is declined.

Does anyone have any experience/advice in this area on:
-whether I can continue working the 2-6weeks while I wait for the response (I suspect not)
-if the residence application is declined, I will need to reapply - does this mean I won't be able to work for another 6 months??
-does my contract with my current employer automatically end when my Tier 2 expires, and so if/when my residence card does come through, will I need to reapply for my job?
-I understand the HO takes your latest visa as the active one (you can't have both Tier 2 and EEA-EFM) - if I renewed my Tier 2 visa in January, would this actually INTERFERE with my residence card application, ie the Tier 2 would become my most recent right to work record and overrides the residence card?

The above answers will help me figure out if I should pay the £664+associated fees to extend my Tier 2 in the meantime, and if so when I should do so.

Best wishes,
Jenny

[noajthan]

As EFM applicant you won't get a COA with confirmation of right to work. You need the RC itself for that.

Its up to employer if they will keep you on, suspend you or let you go in the meantime (after visa expires).

Simply switching migration routes doesn't terminate your contract;
its up to your employer and how clued up or risk-averse they are.

EFM RC is not a visa.
There is no continuity from T2 visa;
if RC is not granted you will be an overstayer with no basis to remain in UK (unless the refusal is for a reason that gives a right of appeal).
So, if refused, you won't necessarily be able to reapply and stick around for a further 6 months or so.

With all the wild talk of Brexit you should also factor in that you are unlikely to acquire PR in the normal way; there simply won't be time.

[Geneiva]

As EFM applicant you won't get a COA with confirmation of right to work. You need the RC itself for that.

Its up to employer if they will keep you on, suspend you or let you go in the meantime (after visa expires).

Simply switching migration routes doesn't terminate your contract;
its up to your employer and how clued up or risk-averse they are.

EFM RC is not a visa.
There is no continuity from T2 visa;
if RC is not granted you will be an overstayer with no basis to remain in UK (unless the refusal is for a reason that gives a right of appeal).
So, if refused, you won't necessarily be able to reapply and stick around for a further 6 months or so.

With all the wild talk of Brexit you should also factor in that you are unlikely to acquire PR in the normal way; there simply won't be time.

Hi thank you very much for your prompt response. It sounds like the best course is to suck it up and extend my Tier 2 now.

On extending the Tier 2 I need to resupply biometrics information with new photo and fingerprints. In the EFM application I had to supply all biometric info. Again, the concern here is interference - either the Tier 2 extension with the EFM (ie I did not supply all information around biometrics taken), or the EFM with the Tier 2 extension (ie the Tier 2 is my most recent application and upon re-entry into the country the RC is invalid).

Is there any advice on interference with dual applications like this?

best,
Jenny

[Richard W]

Again, the concern here is interference - either the Tier 2 extension with the EFM (ie I did not supply all information around biometrics taken), or the EFM with the Tier 2 extension (ie the Tier 2 is my most recent application and upon re-entry into the country the RC is invalid).

Your situation is complicated by being a durable partner rather than a wife. If you were a wife, there is simply no provision for the RC to be refused simply because you have a visa or are applying for one. I am not aware of any such provision applicable to an extended family member.

Conversely, when you apply for your Tier 2 extension, you will not have been granted your residence card, so you will have no right to be treated as a family member. Therefore, the application cannot be refused as invalid because you have a right of residence under the EEA Regulations - at least not until you are granted your RC. (I don't think it can be refused at any point on this ground, but some may disagree.)

There has been at least one case of a person applying for an initial RC as a durable partner getting a positive CoA. I don't know whether it was by an unpublished policy or simply a mistake. Certainly your RC would be very like a visa - it confers the right to be treated as a family member, rather than merely confirming a right. The decision on the CoA may be complicated by the fact that at present you do have the right to work.

[noajthan]

Hi thank you very much for your prompt response. It sounds like the best course is to suck it up and extend my Tier 2 now.

On extending the Tier 2 I need to resupply biometrics information with new photo and fingerprints. In the EFM application I had to supply all biometric info. Again, the concern here is interference - either the Tier 2 extension with the EFM (ie I did not supply all information around biometrics taken), or the EFM with the Tier 2 extension (ie the Tier 2 is my most recent application and upon re-entry into the country the RC is invalid).

Is there any advice on interference with dual applications like this?

best,
Jenny

Its not clear what you mean by interference. Its 2 separate procedures/documents issued under different legislative frameworks.

The internal organisation of HO is not clear but if its like many large UK organisations it could make Game of Thrones look like the Teletubbies.
Don't expect too much cross functional coordination and joined-up thinking.

You can dig into question of issue of COA in HO guidance here:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- page 30+

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.

A previous right to work simply is not factored in and does not compute.

[Geneiva]

Thank you all for your responses

[asp]

When your Tier 2 expires your employer should conduct a new right to work check, as they will have lost their statutory excuse against a heavy illegal working civil penalty.

As others have said, whether your employer does this will depend on the effectiveness of their own HR system. Without a CoA the employer will not get a positive result from the Employer Checking Service, so if you don't have a leave application under the Rules pending be prepared to be put on unpaid leave (good scenario) or let go (bad scenario).