SET(LR) application: right to work been cancelled

[blackyjnz]

Hi,

I have a somewhat complex case, which I have outlined below.

Posting this in case someone else has heard of a similar situation before, and also so that others can learn from my experiences so they can hopefully avoid the joys that I have encountered

Thanks!

Overview
- I submitted a SET(LR) application on 28 October, Case ID xxxxx ahead of my visa expiring on 21 December 2016
- The SET(LR) Guidance notes (version 11/2015) state "If you apply before the end of your permitted stay in the UK, your existing immigration status, including my permission to work, will continue until your application is decided
- Payment was taken promptly after applying, and have received notifications on 15 November and then again on 14 December advising that my application has been received and is being considered
- I received a the letter from the Home Office on 14 November advising me to complete the Biometrics screening, which I did on 19 November
- There is a section in the above letter entitled 'Settlement Casework Top Enquiries' (Ref Issue 2: Right to work) which states that "You may continue to work in the UK if the conditions attached to your previous grant of leave entitled you to work, and if your latest application for settlement was made whilst that leave was still existant
- My employer advised me earlier on this week that they received a notification from UK Visas (via the Employer Checking Service) stating that I do not have the right to work in the UK as "an application for leave in the UK has been submitted but this was done so after the expiry of the person's previous leave"
- My employer emailed them back advising that I have documentation of my application and fees being taken in October 2016 and my visa running until December 2016 but no further explanation was given how they reached the above conclusion (although speaking to other people, it appears as though, despite the assurances above, that this is most likely due to my last visa being a Residence Card
- My employment has since terminated my contract with immediate effect for fear of my Company breaching the notification from UK Visas
- When contacting the UK Visas and Immigration team, no one seems empowered to help discuss my case let alone assist and try and resolve my current predicament

Steps I have since taken
- I applied yesterday to transfer my postal application to the Premium Service (via premiumupgrade@homeoffice.gsi.gov.uk) only to receive an auto response advising that the service is now temporarily closed with no indication as to when/if it is to open again
- I have sent a recorded letter to UK Visas yesterday asking for my application to be expedited citing the above as reasons why my application should be prioritised
- I have contacted my local MP to escalate
- I have gone to the Community Law Centre and have a follow up appointment mid-week

Fingers crossed someone will see the madness of this situation and throw me a bone so that I can pay my mortgage this month Conscious that I could be in limbo for up to another few months as their SLA is 6 months for the SET(LA)

[CR001]

A Residence Card is not a 'visa' under the UK Immigration rules, which is what the 'conditions continue etc' refers, ie Tier 2, Tier 4, Spouse visa etc.

What is your full immigration history?

Who is your EU sponsor (i.e. spouse, brother, etc)?

Did you submit evidence of your EU sponsor being a qualified person for the duration of your time spent on a Residence Card?

[noajthan]

Welcome.

You certainly live in interesting times.

Can I deduce part of your 10 years comprises periods on EU migration route? - including a recent time period?

My understanding is that it is only at discretion that a mix of UK and EU time is permitted for a LR application.
Be aware a RC is not a 'visa'.
LR is not a clearcut 'get out of jail free'-type of option for those on EU route but perhaps without a valid Union citizen sponsor in the picture.

Are you an EEA national (and qualified person) or an EEA family member with a qualified (or settled) person sponsor?
How long has the concerned person been exercising treaty rights?
And when was the last period of leave you may have had under UK Regulations? (ie on a domestic UK visa).

[blackyjnz]

Thanks for the replies.

My immigration history
- I am a New Zealander that came to the UK on a 2 year working holiday visa on 3 October 2006
- Prior to the above expiring, I returned home briefly to switch to a Tier 1 visa (3 years)
- I married a Polish national in 2011 and prior to my Tier 1 expiring, I switched to a Residence Card of a Family Member of an EEA National (5 years)
- My wife is Polish by birth, and has lived in the UK exercising her treaty rights from 2004
- NB: she was Naturalised in March 2015 so now holds a British Passport as well (reason I was told that I couldn't apply for PR)

Aside from the usual holidays, I have not spent any elongated periods outside of the UK throughout the above periods.

I submitted evidence of my wife being a qualified person for the duration of my time spent on a Residence Card.

[noajthan]

Dear me you have been grossly misadvised.

If still married to same spouse and if you got RC before mid 2012 you can invoke the McCarthy transitional arrangement.

This means wife is still treated as your EEA sponsor despite naturalising.

So you should have acquired PR on 5th wedding anniversary - last year.

Suggest collate evidence and apply asap.
And seek compensation from whoever has been 'advising' you.

[blackyjnz]

If I do that, I will forfeit the close to £2,000 I have already shelled out for SET(LR) application and will then need to pay whatever it is for the PR.

I will seek independent advice re my application under consideration at the moment before doing anything drastic. Thanks

[noajthan]

If your RC dates from mid (or before) 2012 you are home and dry. Sponsor is still your sponsor.
Did I mention you were ill-advised to abandon EU route.

Confirmation of PR status: £65.
You do the math.

And here's the thing, as you have already acquired PR you have the right to work.
(The PR application is merely for a confirmatory document).
How cool is that.

The compensation for unfair/illegal dismissal should cover your unfortunate and excessive outgoings on LR to date.

[blackyjnz]

If as you said, it's at the discretion that a mix of UK and EU time is permitted for a LR application, then my SET(LR) may still be approved. My MP has since come back to me and is putting heat on them to expedite and approve this application ASAP (hoping to hear something back today).

Looks like I have a solid Plan B as I got my RC on 21 Dec 11. (I actually already have the forms pretty much completed for PR and am aware of the nominal fee as this is the form I intended to initially apply with!) When UK Visas advised me I was ineligible for this due to my wife naturalising, I remember feeling aggrieved on the phone thinking that the house always wins - as UK Visas ended up getting their high application fee in the end (that I sidestepped switching to RC instead of renewing my Tier 1 all those years ago) .

That is cool indeed that the PR application is merely a confirmation document. So in your eyes, as soon as I submit this I am legally allowed to work again?

As my primary concern is that I get my right to work reinstated (so that I can keep the lights on and pay the bills ) I'm guessing I'll wait till midweek to hear back re SET(LA), if I hear nothing then I will request for my documentation back to include it with my PR application. Following Plan B, I can be back at work by this time next week.

The unfair/illegal dismissal....that's a separate line of enquiry

[noajthan]

If as you said, it's at the discretion that a mix of UK and EU time is permitted for a LR application, then my SET(LR) may still be approved. My MP has since come back to me and is putting heat on them to expedite and approve this application ASAP (hoping to hear something back today).

Looks like I have a solid Plan B as I got my RC on 21 Dec 11. (I actually already have the forms pretty much completed for PR and am aware of the nominal fee as this is the form I intended to initially apply with!) When UK Visas advised me I was ineligible for this due to my wife naturalising, I remember feeling aggrieved on the phone thinking that the house always wins - as UK Visas ended up getting their high application fee in the end (that I sidestepped switching to RC instead of renewing my Tier 1 all those years ago) .

That is cool indeed that the PR application is merely a confirmation document. So in your eyes, as soon as I submit this I am legally allowed to work again?

As my primary concern is that I get my right to work reinstated (so that I can keep the lights on and pay the bills ) I'm guessing I'll wait till midweek to hear back re SET(LA), if I hear nothing then I will request for my documentation back to include it with my PR application. Following Plan B, I can be back at work by this time next week.

The unfair/illegal dismissal....that's a separate line of enquiry

Another case confirming UKVI helpline advice is flawed and should not be followed or should at least be taken with a few kilos of salt.
https://www.freemovement.org.uk/immigra ... pectation/

The LR team has discretion to permit an application with an EU element to be processed.
It does not have discretion to overlook or wave through an application that (they think) was not compliant with EU rules.

The team processing your LR may not be up to speed with the subtleties and nuances of an EU-related element in the mix;
especially one involving the McCarthy transitional arrangement.
You'd probably have more chance if that had been highlighted in a cogent cover letter.
Especially as they seem to have already decided that you don't have a qualified person sponsor any more.

You are already legally allowed to work.
The PRC merely confirms this - it doesn't confer the right.
Although you may have trouble convincing a poorly-informed employer of this (based on your employer's current track record).

And worst case, if you haven't yet acquired PR (due to some technicality) your spouse is still your sponsor (thanks to McCarthy) so you also have the right to work via your spouse/sponsor.

Yes, unfair dismissal is out of scope for this forum. We have our work cut out as it is keeping everyone honest and on track in the immigration space.

[blackyjnz]

You'll be pleased to note that I got some good news yesterday.

My lawyer advised that their contact in the Home Office's settlement team has since confirmed that my ILR application has now been considered and approved!

The Employer Checking Service team now just need to update their system, but it's looking likely I'll be back at work very soon.

I am expecting my passport and documents back later on today/tomorrow and my BRP in the next week or so.

Many thanks for your guidance with this.

[noajthan]

You'll be pleased to note that I got some good news yesterday.

My lawyer advised that their contact in the Home Office's settlement team has since confirmed that my ILR application has now been considered and approved!

The Employer Checking Service team now just need to update their system, but it's looking likely I'll be back at work very soon.

I am expecting my passport and documents back later on today/tomorrow and my BRP in the next week or so.

Many thanks for your guidance with this.

Good news indeed. And no doubt a great weight lifted from your shoulders although at considerable cost to your wallet.