COA - No right to work BUT we submitted documents!

[technospirit]

HI all,

I was wondering if someone could advise me on my situation:

I am the Non -EEA spouse of EEA national I have applied for the renewal of my residence card as it 'expired' in Juneon the basis that she is -self-sufficient. I couldnt apply for PR as my wife didnt complete her 5 years of exercising Treaty rights hence i was advised to apply for renewal of residence card. To cut a long story short, I am on unpaid leave at the moment as I couldnt prove to my employer that I could work after the expiry of my residence card. After a month's wait I received this morning a letter to enrol my biometrics but at the same time a Certificate of Application which mentions that

At this stage we are unable to confirm your right to work in the United Kingdom. This will depend on the outcome of the application. This is because you have not provided sufficient evidence of your sponsor exercising Treaty rights.

Thats untrue!! I have provided all the necessary information for the same. I have sent my wife's bank statements showing enough funds and also the private health insurance that bears all our names. (my two daughters as well) to show that she is self-sufficient. This is the exact application I had made for my initial residence cards 5 years back and that time I had received a COA with the right to work. I am quite shocked to see why I have received no right to work this time.

I shall enrol for biometrics as that letter came together with this COA.

MY queries are:

1. Would it be possible to write to them and request new COA because I have surely provided all information even though in the letter it states that 'We will not revisit the terms of your Certificate of Application during the consideration of your case'.

2. Should I call them on Monday to discuss the same or email with my case reference number and the issue pertaining to the incorrect 'COA'? if so, is email the best way or to post a letter addressed to the person's attention who sent me the letter to the address in Liverpool

3. Has anyone had similar situation and received the correct COA and if so how many days did it take?

I am really in a confusing situation now as my employer is looking forward to get me back to work asap but since this letter arrived today I believe my hopes of getting back soon to work seem unlikely. Is it worth mentioning to employer that I enrolled for biometrics but incorrect COA arrived?

Would be highly grateful if anyone could advise or help in this matter.

Kindest regards,

Technospirit

[Richard W]

I have sent my wife's bank statements showing enough funds and also the private health insurance that bears all our names. (my two daughters as well) to show that she is self-sufficient. This is the exact application I had made for my initial residence cards 5 years back and that time I had received a COA with the right to work. I am quite shocked to see why I have received no right to work this time.

Let me check if I understand you. You are saying that on the basis of what savings you have, coupled with no income, your family would be ineligible for benefits even if they were British and long-term resident, simply because your savings are too large. Is that correct?

If it is correct, the Home Office is in the wrong. Others can probably better advise on the merits of informal pleading, appealing and reapplying. How long will your savings keep your wife self-sufficient?

My understanding of the regulations is that if, on the other hand, your wife's self-sufficiency was based on your income, then you must start again. Your suspension removed your wife's self-sufficiency. (For the benefit of others approaching a similar position, I will say that you should have applied for a new RC in November 2015 or earlier.) Your wife must become a qualified person - perform 'genuine and effective work'; you must then obtain a positive CoA on the basis of her work; and then resume work. Your wife's PR clock appears to have been reset, and yours and your children's with it.

In this case, I believe that the government, by threatening your employer with fines and other sanctions, has made the exercise of your EEA rights dependent on possessing a residence card or similar. If my belief is correct in law, the government is in breach of Article 25(1) of Directive 2004/38/EC. I think you will need skilled professional help if this analysis is to be of any help to you.

[noajthan]

MY queries are:

1. Would it be possible to write to them and request new COA because I have surely provided all information even though in the letter it states that 'We will not revisit the terms of your Certificate of Application during the consideration of your case'.

2. Should I call them on Monday to discuss the same or email with my case reference number and the issue pertaining to the incorrect 'COA'? if so, is email the best way or to post a letter addressed to the person's attention who sent me the letter to the address in Liverpool

3. Has anyone had similar situation and received the correct COA and if so how many days did it take?

I am really in a confusing situation now as my employer is looking forward to get me back to work asap but since this letter arrived today I believe my hopes of getting back soon to work seem unlikely. Is it worth mentioning to employer that I enrolled for biometrics but incorrect COA arrived?

Would be highly grateful if anyone could advise or help in this matter.

Kindest regards,

Technospirit

1) Although you provided information HO does not accepts its sufficient.

this is because you have not provided sufficient evidence of your sponsor exercising Treaty rights.

It may or may not have been sufficient 5 years ago; the previous RC may have been issued in error or by some fluke.

An RC is only really valid on the day its issued, a lot can change over 5 years.

2) COAs are not normally negotiable (as the letter says). You can always try by any means possible.

3) You can get a handle on how the caseworker will handle your case in HO guidance, here:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- see page 28+

Yes, mention to employer. They are probably not experts on the subleties and nuances of EU law so you will probably have to explain it to her too.
And its their choice if they keep you on. Maybe they will.

[technospirit]

Thank you very much Richard and noajthan for your replies and the links you provided.

I mentioned in the cover letter that my wife is self-sufficient through my income and also with what savings she has hence I applied under that category. It has been difficult for her to find even part-time work as she has to look after our two school going children. I am currently working at the moment but since last month I have been on unpaid leave as the employer thinks its illegal to employ me without any further proof. In fact 5 years back, I had only mentioned that she was self-sufficient through my income and that worked just fine along with the documents of bank statements and the comprehensive sickness insurance. This time round I have provided bank statements (both her and mine covering the last 5 years) and the health insurance document which has all our names so they can see who's covered. Am i missing in providing something else?

Now my concern is if I give the case number to employer it might come back negative after verification with the employee checking service since I have got a COA saying I cant work. Does that mean I should just wait and do nothing till HO comes with a decision?

Additionally I wonder why they mentioned on the COA saying 'The enclosed Questions and Answers sheet provides more information about employment rights which reads:

Why are you unable to confirm my right to work in the United Kingdom whilst my application is being considered?

We are unable to confirm eligibility to take or continue in employment in the UK where -
-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.
-The applicant has not provided satisfactory evidence of his or her identity or of his or her relationship to an EU citizen.

I believe that was just a generic thing they were referring to on the letter?

Do you think at this stage I can seek help from a solicitor and would that change anything?

Thank you again for your advice.

[noajthan]

The letter seems generic.
The guidance gets you a little closer.

It is unclear if a sponsor can rely on income from the dependent who is relying on the sponsor as qualified person in order to get that right to work in the first place.

Some guidance mentions an example of valid support coming from a family member who has, for example, leave to remain ie is on a visa and UK Immigration Regs rather than EEA Regulations.
Maybe that is the problem area.

[Richard W]

I mentioned in the cover letter that my wife is self-sufficient through my income and also with what savings she has hence I applied under that category. It has been difficult for her to find even part-time work as she has to look after our two school going children. I am currently working at the moment but since last month I have been on unpaid leave as the employer thinks its illegal to employ me without any further proof.

The most relevant guideline I can find is Qualified Persons, especially p35 'Assessing sufficient resources'.

If your family has 'sufficent resources', then it would have been legal for him to continue to employ you. In your case, the legality depends on facts, not on pieces of paper. Unfortunately for your employer, if your wife were an imposter and not even an EEA citizen, he would be liable to a £20,000 fine for employing you if he did not have copies of what appear to be the right documents supplied by you.

Has anyone told the Home Office that you are currently suspended without pay? My big worry for you - perhaps someone will be able to reassure you that I am wrong - is that the caseworker knows you currently have no income, and has therefore provisionally decided that your wife is not self-sufficient.

By suspending you, I fear your employer has made it illegal for him to reinstate you until your wife becomes a 'qualified person'.

In fact 5 years back, I had only mentioned that she was self-sufficient through my income and that worked just fine along with the documents of bank statements and the comprehensive sickness insurance. This time round I have provided bank statements (both her and mine covering the last 5 years) and the health insurance document which has all our names so they can see who's covered. Am i missing in providing something else?

Just possibly, the caseworker wanted to see your payslips, or even a letter confirming employment.

I think you have may have provided evidence over too long a period. I am also confused as to what has changed over the past 5 years. Was there a period when you were unemployed? I am wondering if the caseworker looked through 5 years worth of documents, thought 'No, not self-sufficient throughout the period', and forgot that only the present is directly relevant to your application for a residence card, as opposed to a permanent residence card.

When you applied for a residence card, if I understand you correctly, you already had two children. I am wondering if benefit changes and their growing older now mean that you might qualify for benefits. You have not supplied the information mentioned on p38 of the guidance for your financial commitments to be assessed. Housing costs may be particularly significant.

Did you calculate whether you wife qualified as self-sufficient?

Now my concern is if I give the case number to employer it might come back negative after verification with the employee checking service since I have got a COA saying I cant work. Does that mean I should just wait and do nothing till HO comes with a decision?

If you have an honest employer, you must do something. The Home Office is likely to ring to ask him if you are working for him, and the likely answer will be 'no' or 'he is suspended'. At that point, your income will be assessed as nil, and your wife will clearly not be self-sufficient.

I am unable to answer the subsequent questions in your post.

It may be possible to salvage matters via your children.

How long have your children lived in the UK. Were they born in the UK?

If one (or both) of your children is attending primary school (as opposed to nursery school), and your wife has worked in the UK since that child was born, I think you two would have a derivative right of residence.

One ploy I can think of, but it might not work, and going abroad might interfere with your derivative right of residence, would be for you and your wife to do a visa run and for you to obtain an 'EEA Regulations stamp' in your passport on return. It is valid for 6 months. We believe that with that sort of stamp, your employer could reinstate you. The only problem is that I have some doubt as to whether your wife could transition from being a non-qualified person to being a qualified person simply by your making her self-sufficient.

Unfortunately, I think you need a second opinion on my suggestions. I can only offer them as ideas.

[member]

Has she been covered with CSI since being self-sufficient?

[Richard W]

Has she been covered with CSI since being self-sufficient?

Yes - the opening post says, "I have sent my wife's bank statements showing enough funds and also the private health insurance that bears all our names.".

[Richard W]

It is unclear if a sponsor can rely on income from the dependent who is relying on the sponsor as qualified person in order to get that right to work in the first place.

Obie mentioned in 2014 that this question has been submitted to the CJEU, in Kuldip Singh - Case C-218/14 Question 2. (Someone please advise me on how to name this case!) Anyway, the answer, dated 16 July 2015, is 'yes, the sponsor may'.

I've seen a restrictive version of this in a UK judgement, which requires that the sponsor first become a qualified person without the family member's resources, even if thereafter the family is entirely dependent on the family member. Unfortunately, I still can't find it on the web.

It seems that the Home Office doesn't really accept this CJEU ruling - there was a very similar case EEA WIFE (self-sufficient) + NON-EEA HUSBAND... back in February. The negative CoA reason was the same, that the applicant hadn't "provided original documentation for all of the following: sufficient evidence of your sponsor exercising Treaty rights".

It looks a frighteningly efficient technique for defeating the practice of non-EEA husbands supporting their EEA wives - especially 'home-makers'. By the time the formal decision is made, the applicant is likely to already have been dismissed and become unemployable, and the application may be refused because the sponsor is no longer a qualified person. The cheapest defence I can see is to get a new RC a year or more before the old one expires, so that family member is never dependent on a CoA.

[noajthan]

Not reflected in recent HO guidance that is likely to be used by caseworkers (who are not necessarily qualified legal professionals and, prima facie, are often surprisingly unfamiliar with relevant legislation and case law).
https://www.gov.uk/government/uploads/s ... _clean.pdf

The map is not the territory ofcourse but some caseworkers appear to belong to the GPS user's 'reverse HGV truck up mountain path until it jams under ancient drover's bridge' school of thought.

[technospirit]

Thank you Richard and everyone again for the valuable inputs. My daughters (7 and 9 years) are going to primary school here in UK though they were born in my wife's country (Lithuania). They were already born at the time I applied the first time for my Residence Card five years back. At that time we didnt have huge savings but through a solicitor's advice he said massive savings werent required as I could show that she is self-sufficient through my income. So I provided my bank statements along with the private health insurance and voila! that was enough to get me the residence card as I was satisfying the conditions set by HO for self-sufficiency.

I do think perhaps it might be the caseworker not having a look properly and hence I wanted to write to her about the same.

I also came across this thread though where they requested for an amended COA.

http://www.immigrationboards.com/eea-ro ... 59095.html

I shall update you once I have also called them tomorrow and shall send a letter posted to the address mentioned on my COA for the caseworker's attention.

[Benito11]

Thank you Richard and everyone again for the valuable inputs. My daughters (7 and 9 years) are going to primary school here in UK though they were born in my wife's country (Lithuania). They were already born at the time I applied the first time for my Residence Card five years back. At that time we didnt have huge savings but through a solicitor's advice he said massive savings werent required as I could show that she is self-sufficient through my income. So I provided my bank statements along with the private health insurance and voila! that was enough to get me the residence card as I was satisfying the conditions set by HO for self-sufficiency.

I do think perhaps it might be the caseworker not having a look properly and hence I wanted to write to her about the same.

I also came across this thread though where they requested for an amended COA.

http://www.immigrationboards.com/eea-ro ... 59095.html

I shall update you once I have also called them tomorrow and shall send a letter posted to the address mentioned on my COA for the caseworker's attention.

@ technospirit

I am following your case closely. Hope you sort it out soon.
Send them email too ( it won't hurt!!) and ask for a new corrected CoA. The email is:
nweurocoarequestsng@homeoffice.gsi.gov.uk
Only wanted to ask you if you could share the HO address stamped in your CoA letter as it might help other forum members ??

[technospirit]

@Benito11

Thank you so much for that piece of information. Very grateful for that. Will email them as well now along with the letter thats going in the post tomorrow. Do you think I should mention that I am on unpaid leave now to them as employer is looking for proof for me to come back to work.

I am more than happy to share the address on my COA and hope it helps others out there as well.

Permanent Migration
PO Box 306
Liverpool
L2 0QN

[Richard W]

At that time we didnt have huge savings but through a solicitor's advice he said massive savings werent required as I could show that she is self-sufficient through my income.

If your savings are large enough they you would be ineligible for benefits if you were a British citizen, your wife is still a qualified person, and the caseworker should then have no serious doubts about the matter. We suspect the caseworker incorrectly decided that your income was not lawful income.

[technospirit]

Hi all,

So here's an update. I called HO this morning and after discussing my issue, she suggested me to send a letter addressed to the caseworker which I did. I also emailed them though I know that will take ages or end up somewhere.

Lets see what happens. I can only wait for an outcome. I am only worried that my employer can terminate my contract as they might not be able to wait that long and especially when I have received the COA with no right to work.

@benito11 by the way the correct email for the COA's is nweurocoarequests@homeoffice.gsi.gov.uk

Will keep you all updated and everyone out there who has similar situation.

[gtht]

We were instructed by our advisor that regardless of where my income came from (in my case the United States and not UK dependent), my wife could not claim it for self-sufficiency. All she could claim was the money she already had in savings in her accounts before we got here. The flip side was that due to our family income those balances barely went down.

[Benito11]

@ technospirit

Any updates???

[technospirit]

@benito11

I am afraid no updates at the moment as no email response from them yet. I have even posted them a letter so awaiting reply on the same as well.

Does anyone know if they can access my case file if I give them the reference number once I call them to check what evidence was missing?

Thanks

[Benito11]

@ technospirit ,

We have tried to email/ mail everyone and everything. My case is different as I haven't received biometrics therefore no CoA as yet.
I have had a response from Croydon .Dear Sir,


Thank you for your email correspondence of 2 August.

We are unable to assist you with your case specific enquiry by email. You will need to write to the case worker directly:

UK Visa & Immigration - Euro
PO Box 306
Liverpool
L2 0QN

I am sorry I cannot be of further assistance.

Try this ( if you haven't already) .

Benito11

[technospirit]

Update:

So this morning i receive a letter from HO saying that they werent able to confirm my right to work as I have 'not provided original documentation for all of the following:

-evidence of relationship with your EEA national spouse
-Identity
-Treaty rights

This is plain ridiculous as all original documents were submitted (marriage certificate, passport, wife's national ID, bank statements, comprehensive sickness insurance,utility bills, council tax bills etc. etc.). They say again (like in my previous COA) my right to work will be decided by the outcome of the application which could take upto six months. So I think my application will definitely get refused I think because according to them I havent provided original documentation.

I am panicky now and confused if I should write to them again or seek legal help and where??

Could anyone please advise?

[technospirit]

Hi everyone,

Quick update. After sending an email complaint to the UKVI, I finally received the correct COA with the right to work by mail yesterday. Took a while but as they say on their website for complaints that it takes 20 working days, they really did take the whole time to resolve this saying it was an admin error. The email used to complain to them is complaints@homeoffice.gsi.gov.uk

I can heave a sigh of relief for the time being and resume work and keep my fingers crossed and wait for the residence card.

For all of those in a similar situation out there, complain and be persistent and things will definitely work out in your favour.

Thanks to all of you for your help.

[Amarpatil]

@technosprit

Do you have any update on your RC status?
I’m going to be in similer situation and also it will be really helpful if you can share how much money did you show as sufficient fund in bank?