EEA-QP Refused, No Further Basis of Stay

[Vaughndrix]

Hi,

I'm a US citizen married to an EU citizen who is exercising their treaty rights as an EEA Qualified Person. I entered the UK on a Family Permit visa and we have been here for about 8 months. We both have full-time employment.

We recently got a letter of refusal for our EEA application stating that we failed to provide sufficient evidence that my wife is exercising her treaty rights. We have the right to appeal but only within 14 days which left us scrambling. Based on the best advice we could find, we re-applied providing ample evidence (payslips, bank statement, employer statement, contracts, etc.). I also wrote a cover letter detailing the course of events and requesting priority treatment of our new application. I also sent this cover letter to the Home Office complaints department.

The Home Office retained my passport and informed us that I have no further basis of stay in the UK and must make arrangements to leave. My understanding is that our application confers the right to stay and work in UK while a decision is made and I should expect to receive a 'long' COA. We're confident that our new application covers all the bases. But my job and our family situation (we have a 4-year-old son) are in serious jeopardy if I have to leave the country for up to 6 months.

Can anyone please advise?

[kamoe]

What seems strange to me is the fact that you got a Family Permit, and were allowed to enter the UK on that basis, and then got your RC refused. That should not have happened, and any appeal should have been straightforward.

Maybe basic to ask but, did you supply all required documentation with your application for RC? (including original passports?)
Have your circumstances changed substantially in those 8 months, as to mean your wife is no longer exercising her treaty rights?

That's all I've got, sorry.

Probably a good idea to contact your MP.

[Vaughndrix]

My wife is actually exercising more treaty rights if that's possible. We provided a job offer and contract in our original application but she hadn't actually started working. We said we would be able to provide payslips later but were advised not to send additional info unless requested.

The case worker said we only sent a job offer (which is false because the contract was among the documents returned to us) and he never contacted her employer or mine. I assume an appeal would have been denied because we didn't provide missing documents (payslips, bank statement) before being refused.

[kamoe]

OK, first things first:

If you wife is a EU national, genuinely working in the UK, both of you, and also your children have the automatic right to stay in the UK with her, as long as she remains a worker. You also have the automatic right to work (the Residence Card only proves it and is important to show employers, and immigration officers; but is not a legal requirement for your stay).

Now, the guidelines clearly state that in order to prove that your wife is a qualified person via worker status you need to either have her employer fill in a specific declaration form; or submit a declaration on the headed-letter paper of the company, singed and dated, confirming relevant details (see page 11). They do not want to see contracts or job offers. They are very specific in what proof they require.
Plus evidence of three months of income: https://www.gov.uk/government/uploads/s ... -04_KP.pdf

So... I understand that, if she hadn't started working you could not really procure an employer's declaration, which leads me to think that you just might have applied for your RC too early? Why apply when she hadn't started working?

Caseworkers follow a script. And if you did not submit the above I can see why they claim you did not supply all required documents.

That being said, I suspect the refusal letter you received is a standard refusal letter, that very likely does not apply to you, as, as I said, you both have the automatic right to stay in the UK (provided she's still in employment).

What is really annoying is them retaining your passport, thus tying you up for any further application of appeal (?).

Contact your MP.

[Vaughndrix]

Update:
I was let go from my job with a verbal agreement that the job (and my desk) remain open to me once I get a new CoA.

My contract states that I can be sent away without warning if I lose the right to work in the UK. The mandatory notice is 1 month otherwise. The company apparently believes that I have lost my right to work due to the wording of the response they got from Home Office for their ECS check: "We are unable to provide you with a statutory excuse." The letter does go on to advise them to seek professional counsel before making a decision, but they decided instead to dismiss me summarily.

Am I right in assuming that the company will be obligated to pay my lost wages when my new CoA comes in? It seems to me that a CoA helps me prove that my right to work never lapsed, which puts my employer in breach of contract.

Has anyone gone through the same circumstances? Am I on the wrong track? Did you have to get a solicitor involved?

[MrSlyFox]

I have lost my right to work due to the wording of the response they got from Home Office for their ECS check: "We are unable to provide you with a statutory excuse."

"You are permitted to accept offers of employment in the United Kingdom, or to continue in employment in the United Kingdom, whilst your application is under consideration and until either you are issued with residence documentation or, if your application is refused, until your appeal rights are exhausted."

We have the right to appeal but only within 14 days which left us scrambling. Based on the best advice we could find, we re-applied

You only have a right-to-work excuse if you have an on-going application or appeal. However you didn't appeal, you re-applied and hence cannot have a right-to-work excuse until you receive a new COA from your new application with right-to-work.

Am I right in assuming that the company will be obligated to pay my lost wages when my new CoA comes in? It seems to me that a CoA helps me prove that my right to work never lapsed, which puts my employer in breach of contract.

No, they would have broken the law by hiring a person without the right-to-work documents. You do not have proof of your right-to-work. Your COA is no longer as you do not have an ongoing application or appeal. Hence the Negative ECS result and your right-to-work lapsed.

[Vaughndrix]

I have lost my right to work due to the wording of the response they got from Home Office for their ECS check: "We are unable to provide you with a statutory excuse."

"You are permitted to accept offers of employment in the United Kingdom, or to continue in employment in the United Kingdom, whilst your application is under consideration and until either you are issued with residence documentation or, if your application is refused, until your appeal rights are exhausted."

We have the right to appeal but only within 14 days which left us scrambling. Based on the best advice we could find, we re-applied

You only have a right-to-work excuse if you have an on-going application or appeal. However you didn't appeal, you re-applied and hence cannot have a right-to-work excuse until you receive a new COA from your new application with right-to-work.

Am I right in assuming that the company will be obligated to pay my lost wages when my new CoA comes in? It seems to me that a CoA helps me prove that my right to work never lapsed, which puts my employer in breach of contract.

No, they would have broken the law by hiring a person without the right-to-work documents. You do not have proof of your right-to-work. Your COA is no longer as you do not have an ongoing application or appeal. Hence the Negative ECS result and your right-to-work lapsed.

I absolutely understand what you're saying, but I think we have to start with this:

If married to the EEA national, rights under EEA regulations are obtained automatically based on the activities of the EEA national. The HO just confirm those rights by issuing RC/PR Confirmation so you are allowed to work. However, you might find it difficult to convince an employer of your rights.

[MrSlyFox]

I absolutely understand what you're saying, but I think we have to start with this:

If married to the EEA national, rights under EEA regulations are obtained automatically based on the activities of the EEA national. The HO just confirm those rights by issuing RC/PR Confirmation so you are allowed to work. However, you might find it difficult to convince an employer of your rights.

That is perfectly true but you have no proof of those rights and without that the employer is liable. It is up to you to prove that you have that right. Without a COA or Residence Card, I don't see how you can prove that.

Non-EEA nationals may claim to have a right to work in the UK as a family member of
an EEA national.

Non-EEA nationals who are the family members of an EEA (or Swiss) national who is
exercising Treaty rights or has permanent residence, are also entitled to live and work in
the UK.

You should not employ any individual simply on the basis that they claim to be the
family member of an EEA national. You should also be aware that not all family
members of EEA nationals are permitted to work in the UK without restrictions. Consequently, it is open to any non-EEA national who has an enforceable
European Union law right to work in the UK - as a direct family member of an EEA
national - to demonstrate the existence of
that right through means other than those documents in Lists A and B which are
explained in the preceding sections.

In such cases, an employer may choose to accept such alternative evidence. However,
in the event that a non-EEA national is found not to qualify to work in the UK, the
employer would be liable to payment of a civil penalty unless they checked the
documents as set out in this document. Further guidance on EEA and non-EEA family
members of EEA nationals can be found in the European casework instruction page on
GOV.UK.

Pages 39 - 41 https://www.gov.uk/government/uploads/s ... checks.pdf

[Vaughndrix]

Pages 39 - 41 https://www.gov.uk/government/uploads/s ... checks.pdf

I've been trying to find legal precedent for challenges against that particular document. In my opinion, it blatantly circumvents EU law by only listing documents originating from Home Office as acceptable for non-EEA family members of EEA citizens exercising treaty rights. They're literally saying "non-EEA family members of EEA citizens automatically obtain the right to work under 2008/38/EC... but only if we say so."

[Vaughndrix]

We have mountains of evidence that we are in a long-standing marriage and that my wife is an EEA citizen exercising treaty rights in UK. I just don't see how HO could possibly fine my employer without being in violation of the EU treaty.

[vinny]

The threat of fines may make employers paranoid.

[Vaughndrix]

The threat of fines may make employers paranoid.

Vinny, you're a hero! H Okuoimose v City Facilities Management (UK) Ltd UKEAT/0192/11/DA for the win.