Complaint to the UKBA about its guidance to employers

[smuru]

The UKBA advice to employers
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
on the documents required for non-EEA family members to prove their right to work is not consistent with Directive 2004/38/EC Article 25(1):
'Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.'

Given that a non-EEA family member, who is a non-visa national, does not require a EEA family permit for entry and that applying for a residence card is not obligatory in the UK, correcting this UKBA policy would remove the need for many people to apply for a residence card and all the hassle that entails.

I have gotten advice from AIRE and Your Europe Advice on this and currently have SOLVIT IE querying the home office for their opinion. I have complained directly to the UKBA but after >20 working days there has been no reply. After hearing from SOLVIT my next course of action is to contact my MP to initiate a complaint with the Parliamentary Ombudsman. After that, if I am not satisfied, I will complain to European Commission (it seems that one should exhaust national procedures before making a complaint to the commission in order to have the most chance of having the complaint dealt with).


If others were to also complain it would increase the chances that the advice will be changed so I encourage anyone who has been affected by this official guidance to employers to start their own complaint.

[Jambo]

How would you suggest non EEA would prove their eligibility to potential employers? With a passport and a marriage certificate? I don't think the solution would be expecting employer to be expert in marriage certificates. The solution should be that the HO would follow the directive and issue a CoA immediately.

BTW - non visa national entering as EEA family members get a code 1A stamp which is in the document as a confirmation of a right to work. The issue is more critical to overstayers / other categories who get married in the UK and switch to be under the directive.

[smuru]

Yes, with a passport and marriage certificate. It may cause uncertainty for employers but it is what Article 25 specifically allows.

I did somewhat overstate things. It is true that non-visa nationals entering as EEA family members should get a code 1A stamp but that does not happen consistently and the code 1A is only valid for 6 months. My wife was not given a code 1A with the excuse that she was re-entering from the CTA.

The right of the family member to work is not based on having a Code 1A, Family permit, COA, residence card or otherwise. It is a right and they should be able to prove it from day 1 no matter how they (initially) entered the UK e.g. on a visit visa.
This has been pointed out in an employment tribunal
http://www.employmentcasesupdate.co.uk/ ... x?i=ed9672

[anp]

Yes, with a passport and marriage certificate. It may cause uncertainty for employers but it is what Article 25 specifically allows.

Practically, it is impossible. You can't possibly expect ALL UK employers to be able to recognize hundreds of marriage certificates from around the world. You would though have a valid point on the speed of processing time.

It is very important to distinguish laws vs directives.

[EUsmileWEallsmile]

It would have been nice if the UK had transposed article 23.

[keffers]

Unless the facility is available to check for non- Government issued passports and marriage certificates as well as access to UKBA database and foreign databases, it is impractical and an open invitation to fraud to simply rely on a passport and marriage licence of proof of an entitlement to work.

Law-making career bureaucrats meets the realities and practicalities of everyday law and order.

[fysicus]

I very much doubt that the European Commission would have serious objections against the current practice on this issue in the UK.
It is perfectly reasonable for employers to require that job applicants prove their right to work in the UK in a way that does not require them to spend a lot of time and effort (and thus cost). Especially if you remember that employers are liable to serious fines if they employ illegal workers.
In practice, that boils down to either showing an EEA passport or UKBA-issued confirmation of your right to work.

And as said before, the root of the problem is the slowness of UKBA in dealing with EEA applications. In the Netherlands, for example, you have to apply in person (for the equivalent of EEA2) but you get the CoA on the day of application (that is what immediately means to most people) and the application is normally decided upon in a matter of weeks.

[sum1]

I don't quite understand this discussion. Employers can still employ undocumented non-EEA family members. The employer's only problem is that they can't follow the 3 step process and thus won't have a statutory excuse. This excuse ensures that the employer cannot be fined (unless it can be proven that the employer has knowledge otherwise that the job holder can't legally work). It's all down to the employers: do they want to play it save or do they take the risk. The interesting question would be what happens if an applicant/job holder gets turned down/fired (and that person can prove it) but the employer was given all necessary information (including supporting information from the EEA) by the applicant/job holder.

Not having the excuse does obviously not mean that the employer employs illegally. (Incidentially, my wife was just asked to present her passport with the RC to her employer again. Actually two months too late but since they will be checked next week...).

As an aside, most employers are not experts in passports either I guess...

[sum1]

And as said before, the root of the problem is the slowness of UKBA in dealing with EEA applications. In the Netherlands, for example, you have to apply in person (for the equivalent of EEA2) but you get the CoA on the day of application (that is what immediately means to most people) and the application is normally decided upon in a matter of weeks.

The problem is still that the non-EEA can only apply for the RC as soon as the EEA exercises his/her treaty rights. This is in contrast to the principal right of the (married) non-EEA family to engage in work.

[fysicus]

It's all down to the employers: do they want to play it safe or do they take the risk.

Well, do you think a sensible employer would take the risk? The fines they face are substantial, so I would be the last one to blame any employer for playing it safe!

[sum1]

It's all down to the employers: do they want to play it safe or do they take the risk.

Well, do you think a sensible employer would take the risk? The fines they face are substantial, so I would be the last one to blame any employer for playing it safe!

That will depend on how much there is in for the employer and also on their legal expertise. For many if not most employers the answer is probably no.

I would think that an employer can only be fined if the employment is indeed illegal. The HO would need to put more effort into evidence gathering in cases where rights under EEA laws are claimed.

[keffers]

I don't think employing an illegal worker will automatically result in a hefty fine. The issue is whether the employer has taken reasonable steps to satisfy himself that the employee has a right to work.

I know of employers who have asked to see people's British passports even though they have been working at that place of employment for several years.

Its a sign of the times with such high levels of legal and illegal immigration.

[sum1]

Probably many/most British citizens have a passport, for practical reasons not because they are obliged to have one. But what if they don't?

[PaperPusher]

They can provide a full British birth certificate and evidence of their NI number.

Interestingly the UK opted out of an EU scheme where employers would have to notify their government of the details of their non national workers.

[smuru]

The fact that the UK has placed the responsibility for policing,under threat of fine, permission to work onto employers is not an excuse for not respecting Article 25(1). The UK choose to adopt this policy.
Are some of you suggesting that Article 25(1) should be rescinded? or we should just ignore it?

Presentation of a marriage certificate could be included on the list of accepted documents. At the moment employers asses the national ID cards all the EEA states that have then (I think that's all of them except for the UK and Ireland). It would not be so difficult for them to accept (translated) marriage certificates as well.

Non-EEA Family members have the right to work under Article 23, just as much as the EU national they are accompanying. In the absence of contradictory evidence, the documents of non-EEA Family members should be accepted, just as at the border when entering.
What the directive envisages, it seems to me, is that applying for a residence card would be compulsory. That is how and when states are to police immigration status. Employers should recognise any documents proving the right to work and after the 3 month deadline, could ask to see the COA and later the residence card. Placing the policing of the right to work on employers is, for EEA family members, used to get around these aspects of the Directive.

The Employment Tribunal case I cited above is worth a read. An EEA family member did not have a valid stamp, COA or residence card (her stamp expired) so her employer sacked her. She won the case because she always had the right to work. It is not dependent on having any stamp or letter from the UKBA.

Finally, the principle of direct effect may apply to the directive, in which case it would be, essentially, law. Though, I don't know if this has been tested in the ECJ yet.

[sum1]

They can provide a full British birth certificate and evidence of their NI number.

Does the NI number encode information on citizenship?

[PaperPusher]

Do marriage certificates state people's nationality?

I bet most don't?

They also don't say if the non EEA national is joining or accompanying their spouse to the UK, nor if it is a sham marriage, nor if the EEA spouse is exercising treaty rights, nor if the EEA spouse has subsequently left the UK, nor that the marriage has not resulted in divorce.

[Jambo]

The Employment Tribunal case I cited above is worth a read. An EEA family member did not have a valid stamp, COA or residence card (her stamp expired) so her employer sacked her. She won the case because she always had the right to work. It is not dependent on having any stamp or letter from the UKBA.

In that case, the employer called the HO for advice and was told that they can't confirm her right to work and that the employer would have no a statutory excuse against civil penalty for employing an illegal migrant worker. With such advice from the HO, no surprise she was fired.

[Jambo]

They can provide a full British birth certificate and evidence of their NI number.

Does the NI number encode information on citizenship?

No.

I suggest you read the document posted in the first post. It details which combination of documents are accepted.

[sum1]

They can provide a full British birth certificate and evidence of their NI number.

Does the NI number encode information on citizenship?

No.

I suggest you read the document posted in the first post. It details which combination of documents are accepted.

Yes, I know that certain combinations of documents are acceptable but what I want to understand is why the NINO would be needed in addition. What more in information can it give?

[Jambo]

Yes, I know that certain combinations of documents are acceptable but what I want to understand is why the NINO would be needed in addition. What more in information can it give?

I would assume it would enable the HO to find out more about you and your eligibility if they want to (searching in HMRC/DWP records).

[keffers]

Read the case. Interesting. But do you honestly expect every employer to have an in-depth knowledge of EU Regulations?

Even the Tribunal Service disagreed with itself as the woman in question succeeded on appeal.

Its just a whole lot easier to have proof than to argue the legalities.

Interestingly she was suspended on the 8th July and sacked on the 20th August. But then produced a letter dated 16th August from UKBA confirming she could work. She was reinstated but went off 'sick'.

Why o' why could she not have obtained that letter in advance of her stamp becoming out of date?

Cutting one's nose to spite one's own face is a nce British saying that sums up this one.

Tribunals? As a British national and taxpayer, I am part owner of those buildings and I should be able to wallk around any office when I want and use the judges toilet if need be. I don't think there is any law against it.

But I can't without proof of my entitlement to do so. Its all part of having an orderly society.

Unfortunately we don't live in Shangri-la. Yet.

[smuru]

In that case, the employer called the HO for advice and was told that they can't confirm her right to work and that the employer would have no a statutory excuse against civil penalty for employing an illegal migrant worker. With such advice from the HO, no surprise she was fired.

But the employer lost the case! He was not right to fire her. It didn't matter that there was a threat of a fine or that the UKBA could not confirm her right to work. She had the right to work. Therefore, as my initial post states the UKBA advice to employers on what constitutes an excuse is not consistent with European law.

I don't understand why there is so much debate about this. The directive is very clear. Non-EEA family members have the right to work and exercising this right can NOT be made conditional on having a COA or residence card. Fact. National law and UKBA guidance should reflect this. They don't.

[sum1]

But do you honestly expect every employer to have an in-depth knowledge of EU Regulations?

You could ask the same question about any piece of legislation. Does not knowing the law exempt you from being punished under that law? But I accept that the burden put on employers may be too high and HO could to a better job in communicating the facts.

[PaperPusher]

The bit the employer lost was not giving her full pay (retrospectively) when she was suspended and was later able to prove her right to work during the period of suspension.

Appeal against a decision that the claimant did not have the right to work in the UK during a period of suspension and so therefore did not have the right to bring a claim of unlawful deductions from wages. Appeal allowed and sum equivalent to the deductions awarded