COA expiring and no RC yet. Employer ultimatum!

[mixme]

Hello there

I would appreciate any helpful suggestion in relation to my query. I applied for my residence card (EEA2) in May 2010, received COA end of June and finally got a job very recently. My employers have informed me that my COA is valid up to 6 months from the application date i.e Valid till 19th November 2010. After that day, they will be terminating my employment due to immigration requirements.

My question is, if I haven't received my RC by then can the HO issue a letter confirming that its still under review? If there's anyone who has had first hand experience on this issue, I sure would appreciate your assistance.

Cheers

[John]

Two points. Firstly you might well be able to get written confirmation from UKBA of continuing right to work.

Secondly if for any reason you are fired by your employer because of UKBA incompetence and breach of the clear terms of the EU Directive, then do claim damages from UKBA, and if they will not pay up voluntarily then do commence Court proceedings against them.

The EU Directive is clear, the RC must be issued within 6 months.

[86ti]

I still keep wondering about this. The UKBA may fail to issue the RC within the required limit but is it really their responsibility if a person gets fired? There is not requirement to have a RC in the first place and the employer is clearly wrong when they refer to 'immigration requirements'. Does an employer not need to know the law? They could at least contact the UKBA themselves (there used to be a special phone number for that). Does the COA really have an expiry date?

[John]

The employer is required to hold proof that the person is entitled to work. The CoA issued by UKBA clearly says that it is valid for only 6 months, so what do we expect employers to do. They do face penalties of up to £10000 per illegal employee!

[86ti]

Sure. I do understand that an employer may react in this way but I would think they do not have a legal basis for that. That's why I wonder who would have to be sued. But if you say that the limited CoA is enough for the employer to get off the hook I understand that do.

[John]

UKBA would be sued ... for the consequences of their breach of the clear terms of the EU Directive.

But hopefully it will not come to that, and the RC is issued within the 6 months maximum allowed by the EU Directive.

[mixme]

Thanks so much for the information.

I found this delightful website where i can ask the home office directly.

http://www.whatdotheyknow.com/request/e ... ificate_of

apparently they have to answer me within 20 days.

[86ti]

Thanks so much for the information.

I found this delightful website where i can ask the home office directly.

http://www.whatdotheyknow.com/request/e ... ificate_of

apparently they have to answer me within 20 days.

Have you also seen the latest entry yet?

[fysicus]

The employer is required to hold proof that the person is entitled to work. The CoA issued by UKBA clearly says that it is valid for only 6 months, so what do we expect employers to do. They do face penalties of up to £10000 per illegal employee!

Actually the CoA says clearly that you are free to live and work in the UK until a decision on the application has been made (without a specific time limit). It becomes confusing, however, in the Note for employers where it says that such applications should be resolved within six months and that therefore after these six months they expect you to be able to present a residence card as evidence of your right to work.
But it does not give any guidance, neither to the applicant nor the employer, what to do if after six months no decision has been taken yet.

I can understand the point of view of an employer who simply doesn't want the hassle to be taken to court by UKBA (even though their defence would most likely be sufficient in the case under discussion in this thread), and if you tell an employer after six months that you cannot show a residence card, how would they know if it is because the application was rejected or because it is still (in violation of the law) under consideration? Both posibilities would be consistent with the information they have.

[John]

I can understand the point of view of an employer who simply doesn't want the hassle to be taken to court by UKBA

Ah no! Very few employers, employing illegal workers, are taken to Court. That only happens in extreme circumstances, given the hassle of preparing papers etc to mount a prosecution. So what does happen? The employer is served with a Penalty Notice, similar in concept terms to the way a motorist caught speeding is issued with a ticket. but much much more expensive!

And just like a speeding ticket, where the motorist can either pay up or take the matter to Court, so it is with the employer issued with their Penalty Notice.

It should not be overlooked that employers can phone the UKBA helpline and get advice on whether someone is an "illegal" or not.

in the Note for employers where it says that such applications should be resolved within six months

Yes, but that just confirms UKBA's lack of ability to read the EU Directive, where Article 10.1 reads :-

The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called "Residence card of a family member of a Union citizen" no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

Pretty unambiguous that ..... "no later than six months" !

In some other EU countries the Residence Card is issued very quickly, compared to the UK, in a week or two.