Family Permit as a Statutory Excuse for Employment

[Richard W]

Has there been any case where a family permit has failed to provide an employer with a statutory excuse against a fine for employing someone not permitted to work simply because it was a family permit rather than some other document?

My belief is that it does provide a statutory excuse, at least in a current passport, because then the passport is a "current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question".

[vinny]

No, as the EEA national could be just visiting the UK and not be a qualified person after the initial right of residence.

[noajthan]

A FP does not intimate if the bearer has the right to work or not.

A FOI response is not a statement of law or even IDI/SI guidance (heaven forbid) but you can see what sort of pigs ear HO made of this related enquiry:
https://www.whatdotheyknow.com/request/ ... se_enterin

[Richard W]

No, as the EEA national could be just visiting the UK and not be a qualified person after the initial right of residence.

So? The sponsor of a RC holder could have left the country as soon as the card was granted, and the card could have been revoked, but the physical card itself would still provide the employer with a statutory excuse, even though the holder now be unlawfully resident in the UK.

[Richard W]

A FOI response is not a statement of law or even IDI/SI guidance (heaven forbid) but you can see what sort of pigs ear HO made of this related enquiry:
https://www.whatdotheyknow.com/request/ ... se_enterin

And that is why I asked my question as I did.

However, one could read the opening paragraph of the reply, namely

I am unable to confirm whether a non-European national spouse of a European national exercising Treaty Rights in the United Kingdom would be able to work on an EEA Family Permit as this would depend on whether the EEA Family Permit states whether there are restrictions on a person's ability to seek employment or not.

as confirming that one would be able to work on the basis of an EEA Family Permit. However, I believe that this answer is as authoritative as a Home Office helpline. However, the original enquiry is not useful. It asks about the legal right to work, whereas I am asking about the family permit providing a statutory excuse, which is a different but not entirely unrelated question. After all, a properly evidenced national insurance number plus a full birth certificate issued in the UK (whatever 'issued in the UK' means) would also suffice.

[vinny]

No, as the EEA national could be just visiting the UK and not be a qualified person after the initial right of residence.

So? The sponsor of a RC holder could have left the country as soon as the card was granted, and the card could have been revoked, but the physical card itself would still provide the employer with a statutory excuse, even though the holder now be unlawfully resident in the UK.

Exactly. An EEA family permit cannot be used as a statutory excuse for employment because it is not explicitly in the list of acceptable documents.

[Obie]

However an employer cannot be reprimanded for employing an holder of an EEA family permit who has a right of residence.

In the case of an Extended Family member who continue to meet the condition under Regulation 8, An EEA family can be used by an employer as a statutory excuse under Regulation 7(3) for as long as the Extended Family member continues to meet the requirement of Regulation 8, and he or she can demonstrate that.

[hsn86]

I applied for National Insurance Number with EEA Family Permit. It says that "You should only complete this application form if you have a current UK Visa or a Biometric Residence Permit that you applied for outside the United Kingdom, which gives you the right to work." And I got my National Insurance Number. Does it means EEA FP gives me the right to work?

[vinny]

However an employer cannot be reprimanded for employing an holder of an EEA family permit who has a right of residence.

In the case of an Extended Family member who continue to meet the condition under Regulation 8, An EEA family can be used by an employer as a statutory excuse under Regulation 7(3) for as long as the Extended Family member continues to meet the requirement of Regulation 8, and he or she can demonstrate that.

Agree that an employer should not be penalised for employing someone who can eventually prove a right to work by alternative means.

[Richard W]

I applied for National Insurance Number with EEA Family Permit. It says that "You should only complete this application form if you have a current UK Visa or a Biometric Residence Permit that you applied for outside the United Kingdom, which gives you the right to work." And I got my National Insurance Number. Does it means EEA FP gives me the right to work?

Note the use of the word should.

If circumstances do not change, and declared intentions are carried out, a possessor of an EEA FP has the right to work. If one is an extended family member, an EEA FP gives one the right to be treated as a 'direct' family member, so to that extent it is a permit. It differs from proper visas and BRPs in that the permission given by others remains at least until they expire or are revoked, whereas a change in circumstances can immediately remove the rights apparently evidenced by a family permit.

[vinny]

On further thoughts, there is no prohibition of work stated on an EEA family permit. If it may be included in List B, Group 1

A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.

Then it's possible for employers to use them as an excuse.

[Obie]

It must be the case. It is worth noting that the regulations reign supreme over that list.

The regulation provides for a person with EEA family permit to be treated as family member.

EEA family permit and Code 1A issued at port are issued on the same basis, and they don't preclude it's holder from seeking employment. A person with EEA family permit is entitled to NI number, therefore I believe the scope of a family permit is extensive.

If it was not meant to act as a defence, then the regulation would have provide for a statement on the permit to the effect that employment prohibited..

[Richard W]

In the case of an Extended Family member who continue to meet the condition under Regulation 8, An EEA family can be used by an employer as a statutory excuse under Regulation 7(3) for as long as the Extended Family member continues to meet the requirement of Regulation 8, and he or she can demonstrate that.

Why would an employer need a statutory excuse in such a case? In the commonest type of preprepared statutory excuse, the existence of a statutory excuse relieves the employer of the need to employ spies in the Home Office to obtain a list of people who have lost British citizenship. It also relieves him of the need to conduct his own investigation into whether his employees who claim to be British actually are British in the first place.

To judge from this forum, the commonest benefit of having a statutory excuse available would be to not have to check that residence card holders' sponsors are still in employment or have not cancelled their CSI. Instead, the employer can just check for residence cards and avoid knowing about employees' domestic situation.

[Richard W]

It is worth noting that the regulations reign supreme over that list.

You're confusing (a) the right to work with (b) possession of documents providing an employer with a statutory defence. I've already given one example of (b) not implying (a), the rare case of someone born in the UK and possessing a NI number but lacking the right to work. There are also the people who have ILR but no BRP. As their passports expire, they retain the right to work but cease to be able to provide a statutory excuse to a new employer. Non-UK citizens with right of abode are in the same situation.

[Obie]

The purpose of the permit is to evidence the fact that a person fall under the free movement provision and therefore does not require leave, and is entitled to reside in the UK , for at least during the currency of the permit..

So yes, it is a document that permits employment and can be used as defence, that evidence was produced which indicates that the person fall within the freemovement provision and does not require leave or permission to seek work for as long as the permit remains valid.

[jtb0]

I applied for National Insurance Number with EEA Family Permit. It says that "You should only complete this application form if you have a current UK Visa or a Biometric Residence Permit that you applied for outside the United Kingdom, which gives you the right to work." And I got my National Insurance Number. Does it means EEA FP gives me the right to work?

Note the use of the word should.

If circumstances do not change, and declared intentions are carried out, a possessor of an EEA FP has the right to work. If one is an extended family member, an EEA FP gives one the right to be treated as a 'direct' family member, so to that extent it is a permit. It differs from proper visas and BRPs in that the permission given by others remains at least until they expire or are revoked, whereas a change in circumstances can immediately remove the rights apparently evidenced by a family permit.

Will the DW&P accept an EEA FP that has recently expired but the applicant has a EEA2 application being processed?