RC about to expire. EEA4 questions...

[palmoil]

Hi guys,

I’ve been reading this forum over the past week and would like some suggestions on a situation I’m in if possible.
First, here’s some info:

I’ve been living in London with my wife (Italian) since Feb. 2009. 9
My Residence Card of a Family Member of an EEA National expires on Dec. 3. I intend to apply for PR with a EEA4 form (that's the correct form in this case, right?).

The problem: I have a 3 week trip booked (abroad), and return on the 26th of November, a week before my RC expires. My intention was to send the form/documents as soon as I get back, as I need my passport for the trip. But…

…I received an email from my work’s HR, asking for my new documents or proof of application (letter from UKBA) as soon as possible (in the next 3 weeks if possible).



So here’s what I’ve been stressing over:

After being here for almost 6 years, what happens in the time frame where my RC is expired but I still haven’t received the letter (confirmation of application) back from UKBA? Am I illegal then? I'm thinking both from the UKBA point of view and from a HR perspective...

If I travel and wait to send the form once I return, how soon would I have the letter from UKBA? That “1 week window” seems too narrow. I’ve been counting the days to visit my family, but at the same time, I don’t want to lose my job or my right to live here (in case I need to apply ASAP).

Also, would I have problems getting back in the country, considering my residence card will be expiring in one week?

I think that's it for now. I could go on and on but I think this is already long enough.

Thanks for the help!

[sheraz7]

If your EU national partner is exercising its treaty rights then you have legal right to work & live but employers normally ask a letter from UKBA confirming it which cannot be able to get unless a new application for EEA2 RC or EEA4 PR being made although an employer can check right of work straight from UKBA helpline. And regarding your travel is concerned then you should be alright as long as you return before the expiry of your RC if you are a visa national to UK otherwise you may have to apply EEA family permit from outside the UK. If you have straight case for EEA4 PR and have not urgency/emergency in travelling then maybe postponing the travel a bit further maybe wise to keep secure the current job as well.

[palmoil]

Thanks for taking you time to reply, sheraz7.

I'll see if checking my rtw straight from the UKBA helpline is good enough for my employer or if they'll really need the CoA before the expiration of the RC. Fingers crossed...

Sorry to ask, but what do you mean by "if you are a visa national to UK"?
I'm Brazilian, so if I understand it correctly, I am a visa national to uk right? As Brazil is not in the list of countries whose citizens need a visa to enter the UK.

In this case, returning to the UK with only 1 week left on my RC is not a problem, right?

Thanks again!

[sheraz7]

Brazilians do not need visa to enter UK on their national passport, check here which is your separate additional entitlement than EEA2 RC. Anyways alternatively, why do not you apply for EEA4 application which will yield immediately at least acknowledgement letter for employment purposes then you can request back your passport for travelling.

[Jambo]

Talk to your employer and explain that you will apply once you return before the RC expire. The expiry date has no affect on your status but stating that might calm HR (as the rules with other visa categories is that you need to apply before it runs out. You don't need to get the decision before it runs out. As I said, it doesn't affect people under the EEA applications in which residence documents are optional but HR might not be familiar with the nuances.

[sheraz7]

Employers, DVLA, banks, job centers etc. Most of them knows that non-eu married partner of a qualified EU national has right to work even with expired/without RC but they normally don't bother to implement it rather normally ask for the letter from UKBA confirming their status at least confirming the submission of their application. A lot of members have been experiencing same although they shouldn't have to.

[palmoil]

Thanks guys!

I'll carefully write an email this weekend trying to explain this and pointing to all the right links, UKBA helpline and anything helpful I can find. Maybe if I make things really easy for them, they'll care enough to investigate further and hopefully I'll hear positive news soon. We'll see....

[palmoil]

Explained my situation to HR on an email finishing with:

"...from what I understand, as my wife (EEA National) is still exercising her treaty rights (and been for 5+ years), I still have the right to work & live in the UK*. So meanwhile, if you need something, I can provide you proof that she is exercising her treaty rights.

*More information can be found on the links below:

Permanent right of residence (Section 15.1.b):
http://www.legislation.gov.uk/uksi/2006 ... on/15/made

Chapter 2: Rights of a Non-EEA National Family Member of EEA Nationals (Section 1.1):
https://www.gov.uk/government/uploads/s ... apter2.pdf

Additionally, an employer can check right of work straight from the UKBA helpline
https://www.gov.uk/check-job-applicant-right-to-work"



Got the reply this morning:

"Thanks for your email, I have checked our records and can see that your current right to work expires on 03/12/2014. It is a legal requirement, to retain the Right to Work on your previous Visa status and an application must be made prior to the expiry of your current Visa."

So annoying.... Feels like they didn't even bother reading...

[Richard W]

"Thanks for your email, I have checked our records and can see that your current right to work expires on 03/12/2014. It is a legal requirement, to retain the Right to Work on your previous Visa status and an application must be made prior to the expiry of your current Visa."

So annoying.... Feels like they didn't even bother reading...

The problem is that it not your right-to-work that concerns them. What they mean is their 'right not to be fined for employing' you. If your wife were an impostor and not an Italian citizen, your employer could be fined £20,000. (There's some reduction for a first offence.) Whether you or your employer have good reason to believe that your wife is Italian is completely immaterial - the fine is not for a criminal offence. (If your employer correctly believed your wife were an impostor, they would be committing a criminal offence by employing you).

Long-standing indefinite-leave-to-remain holders face a similar problem, though far less frequently. They can't easily change employer if their ILR sticker is in an expired passport; they have to downgrade to a biometric residence card. The fact that they have a legal right-to-work appears to be immaterial. There is some inconclusive discussion on this in the ILR forum.

You appear to be a victim of the change from annual checks to checks on expiry. With annual checks the issue of expiring visas could be reduced by doing the annual check just before the visa expired. The checks at expiry are now to be done exactly when most people are likely to be awaiting a new visa. Fortunately, the right not to be fined for employing does not expire when the passport does.

As a wild idea, can you get HR to read, seal and post your EEA4 application? I believe your employer might then be covered by a 'good reason to believe' clause in the code of practice while they briefly wait for formal confirmation that you have applied. Perhaps others more knowledgeable can comment on this idea.