Working Rights During Residence Card Application

[confused2018]

Hi,

I have had conflicting advice about this and was wondering if anyone would be able to clarify the issue.

I am an Australian citizen working in the UK with a T5 Youth Mobility visa that expires in late October. I have been with my partner, an EU citizen working in the UK, for over two years; however, we only have proof of shared tenancy from the date I moved to the UK in early November 2016.

I therefore need to wait until close to the expiry of my current visa in order to apply as an unmarried partner of an EU citizen, as this is when I will be able to demonstrate the durability of the relationship with two years' cohabitation.

I believe my best route is to leave the UK at this point, and apply outside the country for an EEA Family Permit. Once approved within a few weeks, I could return to the UK and work while submitting an application for a residence card.

I have had legal advice however that encourages me to remain in the UK and apply for a residence card close to the day my current visa expires. It is my advisor's opinion that submitting this application should in itself imply continued rights to live and work in the UK after the expiry of the T5 Youth Mobility. Their view is that the application would be strengthened if made at a time when my partner and I are still living together, rather than just after I have left the UK. They believe that a letter from them saying that they have submitted an application on my behalf should be sufficient proof for an employer to retain me on their payroll.

Is that right? This conflicts with other views I've read on these forums. My major concern is that if this proved untrue, I would be unable to work and support myself for the several months it takes for a residence card application to be processed. I also wouldn't want to be 'overstaying', and potentially jeopardise future applications.

Many thanks in advance for your help,
Confused

[CR001]

As an unmarried partner, you would be an extended family member with no automatic rights under the eea rules. Section 3C protection does not apply to eea rc applications if your tier 5 expires, section 3C is only relevant to applications submitted under the UK immigration rules before your current visa expires.

If you stay and apply, you might get a COA with or without work, likely the latter, which means you obvs cannot work while you wait for the rc to be processed.

[Richard W]

As an unmarried partner, you would be an extended family member with no automatic rights under the eea rules. Section 3C protection does not apply to eea rc applications if your tier 5 expires, section 3C is only relevant to applications submitted under the UK immigration rules before your current visa expires.

There is a view that residence card applications for extended family members (excluding renewals) are a type of visa application and thereby attract Section 3C cover; I don't believe the courts have yet dismissed that argument.

Now, it is possible that the OP could apply under Appendix EU, which would attract 3C protection, would it not? The OP probably needs reason to believe that they will have been durable partners for two years at the time of application. The OP might then need to make a fresh application (under the EEA Regulations?) once the two years evidence was available.

[CR001]

As an unmarried partner, you would be an extended family member with no automatic rights under the eea rules. Section 3C protection does not apply to eea rc applications if your tier 5 expires, section 3C is only relevant to applications submitted under the UK immigration rules before your current visa expires.

There is a view that residence card applications for extended family members (excluding renewals) are a type of visa application and thereby attract Section 3C cover; I don't believe the courts have yet dismissed that argument.

Now, it is possible that the OP could apply under Appendix EU, which would attract 3C protection, would it not? The OP probably needs reason to believe that they will have been durable partners for two years at the time of application. The OP might then need to make a fresh application (under the EEA Regulations?) once the two years evidence was available.

official-section-3c-don-t-apply-to-residence-card-apps-

[Richard W]

official-section-3c-don-t-apply-to-residence-card-apps-

If you had read the first two replies, or the judgement, you would know that the judgement has no bearing on whether residence card applications by extended family members extend leave to remain.

Of course, the simplest way for the OP to secure status is for the couple to marry.

[secret.simon]

If you had read the first two replies, or the judgement, you would know that the judgement has no bearing on whether residence card applications by extended family members extend leave to remain.

If you read the Act, it is fairly clear that no application under the EEA Regulations extends Section 3C leave.

This section applies if—
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.

“limited leave” and “indefinite leave” mean respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration;

An application under the EEA Regulations is not an application for variation of existing leave under the Immigration Act 1971, as it is an application under a different set of laws, not the Immigration Act and therefore does not attract Section 3c leave.

In the judgment referenced above, the court was invited to extend Section 3C leave to EEA applicants, but declined (paragraph 23 of the judgment). The court correctly pointed out that a change in the law should be done by Parliament, not the law courts.

Mr Kannangara's submission that a person "should" have a status in effect similar to that given by section 3C of the 1971 Act is in effect a submission as to a reform designed to put such a person in a similar position to a person with leave under the 1971 Act. That process, however, is one for the legislature and not for the court.

Applications under Appendix EU should attract Section 3c leave, as it would be an application for variation of leave to remain under the Immigration Act 1971. But it is currently only open to eligible people working at specific institutions in North-East England (listed on Page 2 of the Statement of Changes).

I agree with Richard W that the best option would be for the OP to marry the EEA citizen partner.

[Richard W]

This section applies if—
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.

“limited leave” and “indefinite leave” mean respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration;

An application under the EEA Regulations is not an application for variation of existing leave under the Immigration Act 1971, as it is an application under a different set of laws, not the Immigration Act and therefore does not attract Section 3c leave.

It is declared that the EEA Regulations are made under the powers conferred by the European Communities Act 1972 Section 2(2) and the Nationality, Immigrations and Asylum Act 2002 Section 109.

It then comes down to whether the procedures for the handling of EFM applications are necessary "for the purpose of implementing any EU obligation of the United Kingdom" (European Communities Act 1972 Section 2(2)) and what the purpose of Section 109 of the Nationality, Immigration and Asylum Act 2002 was. The latter section enables the making of rules about appeals concerning "a person’s entitlement to enter or remain in the United Kingdom"; but the Home Office contends that EFMs as such do not have entitlements. The reason that EFM's need permission to enter or remain is the Immigration Act 1971; they do not have entitlements that override that act until they are granted a family permit or residence card.

It would appear that the authority of the EEA Regulations with regard to EFMs may also depend on the IA 1971!

I think a case can still be made that granting an EFM a residence card is a grant of leave to enter or remain. An EFM's status is different to a direct family member's.