About EEA National and Extended Family Member Registration

[sebasb21]

Hi,

Let me explain my situation quickly then the question.

My partner is EEA National, we lived in Uruguay (both Uruguayans also) with our son. My partner gets offered job in the UK. We apply for a Family Permit for me. Family permit is granted (sticker in passport 6 month expiration). The three of us relocate to UK. (this went fast and with no issues, i say this because nearly every post is to complain about things going wrong, let's give hope to people, sometimes things go well!!!)

When we get a permanent address and my partner gets the first pay slip, my partner makes registration application EEA QP and adds me to the application (we do it online, very easy). Send all the documents requested to the HO. Week later we get one letter only COA (no right to work yet, who knows why) and Biometric request for me. I submit my Biometrics the same day.

The question is, shouldn't we have received two letters? one for me and another for my partner. Or is it that her being EEA National with a EU passport they don't extend COA and don't require to submit biometrics. Should i try to contact HO (usually is a waste of time in my experience).

Regards,
S

[secret.simon]

EEA citizens do not need to submit biometrics (their Residence Certificate is a paper certificate) and have an automatic right to work in the UK based on their EEA citizenship, therefore they do not get a COA.

[Obie]

The COA is wrong though. You could pursue it as you have a right to work.

[sebasb21]

First of all thanks for the replies obie and secret,simon !

The two possible explanations for NOT extending a right to work in the COA where:

1. The applicant is the unmarried partner or an extended family member of an EU citizen who is exercising European free movement rights in the UK.

For this point they elaborate that i do not get automatic right or entitlement to live in the UK.

2. The applicant has not provided satisfactory evidence of his or her identity or her relationship to an EU citizen.

For this point they just say they may contact me for something else.

For point 1 I thought that as my partner is a QP (living and working in the UK) i would get bumped to family member and have automatic right to all that.

For point 2, i extended my passport, which has a vignette already extended by UKVI, and maybe they needed biometrics, which where submitted (after CoA). As of my relationship i didn't sent all the evidence because they didn't asked, and also i had presented all of that during the FP application back home (info to locate FP application was asked in the form and filled correctly). I could send everything again if they ask.

Obie, you say to purse the CoA, in the CoA they clearly say they will not revisit the terms of the CoA during the consideration of my case. How could i possibly ask them to revise it? I'm really interested in a CoA with right to work because my employer is waiting for it (ironically i used to work for them before coming to the UK, back then seemed like a good idea this whole relocation thingy, now not so much).

Regards
S

[Richard W]

EEA citizens <snip>...have an automatic right to work in the UK based on their EEA citizenship, therefore they do not get a COA.

EEA citizens should not need a CoA because their RC is supposed to be issued 'immediately'.

EEA citizens do not have an automatic right to work. They have a right to do work that is genuine and effective, and not marginal or ancillary. For example, an EEA citizen has no automatic right to accept employment for just one evening a week at a restaurant once he has completed their initial 3 months stay.

[Obie]

Obie, you say to purse the CoA, in the CoA they clearly say they will not revisit the terms of the CoA during the consideration of my case. How could i possibly ask them to revise it? I'm really interested in a CoA with right to work because my employer is waiting for it (ironically i used to work for them before coming to the UK, back then seemed like a good idea this whole relocation thingy, now not so much).

Regards
S

Well they will, if they are clearly wrong, as is the case and breach your community law rights. If you had a job for which you have been suspended, then you can make a claim , as their decision is unlawful.

[Obie]

EEA citizens <snip>...have an automatic right to work in the UK based on their EEA citizenship, therefore they do not get a COA.

EEA citizens should not need a CoA because their RC is supposed to be issued 'immediately'.

EEA citizens do not have an automatic right to work. They have a right to do work that is genuine and effective, and not marginal or ancillary. For example, an EEA citizen has no automatic right to accept employment for just one evening a week at a restaurant once he has completed their initial 3 months stay.

For the avoidance of doubt, i do not agree with Richard.

An EEA national has an automatic right to seek and take up an employment offer.

The Treaty provides that an EEA national has a right to move from their member state of Origin to look for employment opportunities. The treaty provides they can move here and stay even without the offer of job, subject of court to the conditions that they do not become an unreasonable burden on the UK resources.

I agree that the employment has to be genuine an effective as opposed to marginal or ancillary, but assessment according to the case law, is usually invoked where an EEA national is seeking to claim another right that springs from their right as a worker.

[Richard W]

Obie, please educate me on these matters.

Well they will, if they are clearly wrong, as is the case and breach your community law rights.

What community law right would they have breached? The closest I can find is a legal judgement that says that fresh evidence is needed to decide that the OP is not a durable partner - and I think that flows solely from British law.

The answer to the next may be of use to the OP.

If you had a job for which you have been suspended, then you can make a claim , as their decision is unlawful.

Whose decision would be unlawful, and whom would the OP claim against?

The civil penalty system for unlawful employment has always struck me as a clever evasion of justice.

[Obie]

Richard, i may have a do a Tutorial on EU law with you at some time, lol.

You seem very confident when you posit you views, and i tend to be very hesitant about and before questioning them. However, after examining them numerous times, i mostly find that your views could not reasonably possibly be correct, and i need to intervene to ensure that people who depend on the forum for help and advise do not take it as the norm.

Now, coming to the issue at hand, under Article 3(2) of directive 2004/38EC, the UK is under an obligation to facilitate entry and residence for extended family member under their national legislation. If they refuse entry they must provide reasons justifying the decision, unless this is contrary to national security, and the CJEU has ruled in another UK case, that in nationality security cases, there is a limit on the circumstance in which reasons can be withheld.

In accordance with Regulation 12, an EEA Family permit was issued to OP. Under Regulation 7(3) she is treated as a family member for as long as the EEA family permit remain extant. As a family member she is entitled to take up employment for as long as she is a family member of a qualified person and continue to meet the requirement of Regulation 8(5). The Home Office is not suggesting that she has ceased from complying with regulation 8(5), therefore she continues to have a right to work. To refuse her this right is a breach of Article 3(2) and UK national legislation, which gives effect to EU law. She is a person who is entitled to seek and accept an offer of employment. If as a result of refusal to recognise this right, she loses financially, then there is a nexus between the community law breach and the loss of earning , and therefore she will be entitled to damages.

I hope that answers your questions.

[secret.simon]

I generally tend to find that the truth is normally somewhere between two extreme positions (Obie, I remember us having a similar conversation some time ago ).

As Obie has mentioned, the UK is obliged, under EU law, to facilitate (a key word, as the Rahman judgment makes clear) the entry and residence of EFMs. It is not obliged to much further. There is no right to work or reside for an EFM under EU law. Indeed, their rights under EU law are very limited. The rights that EFMs have are governed by national law, not EU law.

Now onto the other side of the argument. UK law (Regulation 7(3)) - not EU law - states that an EFM who has a Family Permit AND who continues to meet the proof of being an EFM (in this case, a durable partner) should be treated as a direct family member. The OP obviously meets the first requirement. But s/he mentioned that s/he did not submit proof of the durable partnership along with the Residence Card application. Therefore, s/he failed the requirement for being treated as a direct family member and was correctly issued a CoA without the right to work, as a normal EFM.

Indeed, if one follows that logic, the OP's RC application will fail because s/he did not include proof of durable relationship continuing.

[Obie]

Well i disagree with you. Not providing proof does not necessarily mean that a person has cease from being in a durable relationship. I appreciate that on an application for Residence card, a person must show that they are entitled to it under Regulation 18(1). That is beside the point when one is dealing with the position of an Extended family member in terms of employment rights, when they are they are the holder of an EEA family permit as proof of their status . Should the Home Office takes the view that they are not in a duration relationship and the rights that flows from under regulation 7(3), ceases to exist, then it is for the Home Office to demonstrate this, as they will be seeking to assert.

The people that issue COA are not substantively considering an application, otherwise a refusal will be instantly sent after consideration. There will have to be an EEA decision revoking an EEA family permit for the rights of the applicant under Regulation 7(3) not to have legal effect, and that will be on the Secretary of State.

I do not accept that 7(3) is not EU Law. It is clearly empowered by EU law, as it was enacted as part of the obligation of the UK to facilitate entry for these category of people. It is part of the facilitation mechanism. In the absence of the Home Office not able to provide reasons justifying the denial of residence, they must issue a residence card under Article 10(2)(f) of directive 2004/38EC.

I do not believe my views is extreme. It is simply what the law says.

[Richard W]

EEA citizens do not have an automatic right to work. They have a right to do work that is genuine and effective, and not marginal or ancillary. For example, an EEA citizen has no automatic right to accept employment for just one evening a week at a restaurant once he has completed their initial 3 months stay.

For the avoidance of doubt, i do not agree with Richard.

An EEA national has an automatic right to seek and take up an employment offer.

The Treaty provides that an EEA national has a right to move from their member state of Origin to look for employment opportunities.

Agreed.

The treaty provides they can move here and stay even without the offer of job, subject of court to the conditions that they do not become an unreasonable burden on the UK resources.

A lot hinges on what the right being subject to regulations means. I believe the article can also be read as merely saying that that the EU can make binding regulations and directive establishing rights of residence.

I agree that the employment has to be genuine an effective as opposed to marginal or ancillary,...

You need to reword this, as otherwise you are agreeing with me!

...but assessment according to the case law, is usually invoked where an EEA national is seeking to claim another right that springs from their right as a worker.

The Home Office is quite lax in its enforcement of the immigration laws relating to EEA nationals who cause no trouble.

[Richard W]

Well i disagree with you. Not providing proof does not necessarily mean that a person has cease from being in a durable relationship. I appreciate that on an application for Residence card, a person must show that they are entitled to it under Regulation 18(1). That is beside the point when one is dealing with the position of an Extended family member in terms of employment rights, when they are they are the holder of an EEA family permit as proof of their status . Should the Home Office takes the view that they are not in a duration relationship and the rights that flows from under regulation 7(3), ceases to exist, then it is for the Home Office to demonstrate this, as they will be seeking to assert.

The Home Office has not stated that the OP has no right to work. They have declined to grant an employer a well-known statutory defence against a £20,000 fine in the event of the OP going to work the day after she and her partner break up. Instead, she can only offer an apparently untested statutory defence based on her unexpired family permit.

The people that issue COA are not substantively considering an application, otherwise a refusal will be instantly sent after consideration. There will have to be an EEA decision revoking an EEA family permit for the rights of the applicant under Regulation 7(3) not to have legal effect, and that will be on the Secretary of State.

The OP's rights would also be lost on ceasing to be a durable partner, even if the family permit has neither expired nor been revoked. In this respect, it differs from a visa.

[Obie]

I do not need to reword anything. My views are as far removed from yours as the east is from the west.

If a person's job can maintain them then the examination of whether their employment is effect and genuine does not arise.

The is a world of difference between what i am saying any what you are say. Your view is that a person do not have a right to work. Or it is the right to work that enables a person to stay in the UK, notwithstanding their right under Article 21 of the treaty.

I cannot possibly how i can reconcile my views with yours.

[Richard W]

I do not need to reword anything. My views are as far removed from yours as the east is from the west.

If a person's job can maintain them then the examination of whether their employment is effect and genuine does not arise.

I refer you to:

I agree that the employment has to be genuine an effective as opposed to marginal or ancillary, but assessment according to the case law, is usually invoked where an EEA national is seeking to claim another right that springs from their right as a worker.

The is a world of difference between what i am saying any what you are say. Your view is that a person do not have a right to work. Or it is the right to work that enables a person to stay in the UK, notwithstanding their right under Article 21 of the treaty.

I cannot possibly how i can reconcile my views with yours.

Well, I suppose you are allowed incorrect views, so long as they do not adversely interfere with your work. They may actually help you lead a judge into error to the benefit of a client.

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

The right is subject to conditions and limitations.

Indeed, Article 8 of Directive 2004/38/EC allows member states to require resident EU citizens to register, and for a condition of that registration to be that the citizen be a qualified person. This conflicts with your interpretation of Article 21. Indeed, the Directive countenances British and Italians citizens who are denied passports or ID cards by their governments being punished for residing beyond the three months. (I single these two nationalities out because we see examples of them being denied identity documents by their governments.) There is then a patchwork of exceptions to the need to be a qualified person, such as for family members and permanent residents.

[Obie]

Be rest assured that i have never caused a judge to misdirect themselves.

You are very confused Richard about the interplay between the laws. Directive 2004/38EC is a secondary legislative provision. Article 21 of the Treaty is a Primary legislative provision.

The court's have on many occassion stated that the Treaty is supreme over secondary legislation.

The Secondary Legislation are enacted to give effect to the treaty and not the other way round.

[Richard W]

Be rest assured that i have never caused a judge to misdirect themselves.

That statement has too many interpretations to be useful. It could just mean that you are constant in your legal opinions and honest in your dealings with the courts.

You are very confused Richard about the interplay between the laws. Directive 2004/38EC is a secondary legislative provision. Article 21 of the Treaty is a Primary legislative provision.

The court's have on many occassion stated that the Treaty is supreme over secondary legislation.

The Secondary Legislation are enacted to give effect to the treaty and not the other way round.

Well, Directive 2004/38/EC could be wrong in purporting to allow member states to require resident EU nationals from other countries to obtain residence certificates, but it seems odd that it would be.

[Obie]

The courts has had cause to clarify on numerous occasions, as way back as the case of Royers and Mrax, that a residence permit is not a source of right but merely has a declaratory function in evidencing the position of an individual as regards community law.

http://www.bailii.org/eu/cases/EUECJ/1976/R4875.html

[Richard W]

The courts has had cause to clarify on numerous occasions, as way back as the case of Royers and Mrax, that a residence permit is not a source of right but merely has a declaratory function in evidencing the position of an individual as regards community law.

An EU national's failure to register under Article 8 of the directive may be made a punishable omission by national law. It's not clear to me that one can 'register' even though being ineligible for a registration certificate.
--
Getting back to the original topic, whom should the OP sue for not being employed, and on what basis?

[sebasb21]

Hi,

Just to leave a record, a finally got my residence card (work permitted), BUT i lost my job!

For me is not a very big issue, but certainly is an inconvenience because I really liked that job. In my case i would blame my employer for not being able to read and understand the law and the HO seems to be very scary when addressing work permits. At the point of COA letter even with an allowed to work clause i think I already didn't have the chance to resume duties.

Thanks anyway for the discussion i really appreciate people that put point of views and info on this forums, they really help.

Regards,
S