Complaint to the UKBA about its guidance to employers

[PaperPusher]

Plus, this doesn't just effect spouses. There are parents, children, aunts, uncles, cousins, in laws, stepchildren, brothers in law, sister in law, grandparents, and so on.

[Jambo]

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.

I don't think the debate is on the rights but rather on how you prove that in practice and how much burden is placed on employers.

For your wife's case, if she wishes to, she can always take a short trip to France and return with a code 1A stamp. (and this is just a practical suggestion with no intention to turn it into another debate).

[sum1]

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.

I don't think the debate is on the rights but rather on how you prove that in practice and how much burden is placed on employers.

That's how I see it too. The arguments so far were made from a "practial" or if you want a "bureaucratic" point of view not to deny a right which I understand as a fact too.

[EUsmileWEallsmile]

And as said before, the root of the problem is the slowness of UKBA in dealing with EEA applications.

Exactly.

[EUsmileWEallsmile]

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?

There are other ways of demonstrating right to work - esp for UK citizens.

[smuru]

And as said before, the root of the problem is the slowness of UKBA in dealing with EEA applications.

Exactly.

Although that is important it is not the root of the problem. Family members should be able to work immediately. They should not have to wait. Even if COA's were issued immediately they might still wait 2 weeks. Furthermore, as already pointed, the family member is entitled to work for the first 3 months without any condition on the EU national to be exercising treaty rights. They would not be able to apply for a residence card in that case. The residence card is only for stays of more than 3 months. For example, a married couple may want to take a 3 month working holiday with perhaps only the non-EEA family member working.

[sum1]

Furthermore, as already pointed, the family member is entitled to work for the first 3 months without any condition on the EU national to be exercising treaty rights. They would not be able to apply for a residence card in that case. The residence card is only for stays of more than 3 months.

They can apply for the RC as soon as they want (Eind cases can) or, practically speaking, as soon as they have "sufficient" evidence. The EEA nationals would be exercising treaty rights also if it is just the non-EEA national working except for the separate CSI (although that's more of a HO created problem).

[EUsmileWEallsmile]

Family members should be able to work immediately. They should not have to wait

...and they can. There is no law that says they can't. Those who do not require leave to enter or remain in the UK and thus are excluded from the legislation.

I understand that persuading an employer might be an issue of course. This is why immediate issue of COA is important and it would be of great help if it were complied with.

[smuru]

They can apply for the RC as soon as they want (Eind cases can) or, practically speaking, as soon as they have "sufficient" evidence. The EEA nationals would be exercising treaty rights also if it is just the non-EEA national working except for the separate CSI (although that's more of a HO created problem).

Yes, the UK is somewhat a special case when it comes to the CSI requirement. It should be automatically satisfied due to the nature of the NHS.
They could apply for a residence card while on a 3 month trip but they would need to show economic self-sufficiency, when in fact no such requirement is necessary for the trips of less than 3 months.

[smuru]

Family members should be able to work immediately. They should not have to wait

...and they can. There is no law that says they can't. Those who do not require leave to enter or remain in the UK and thus are excluded from the legislation.

I understand that persuading an employer might be an issue of course. This is why immediate issue of COA is important and it would be of great help if it were complied with.

This is also why the guidance to employers and rules regarding statutory excuses should be changed.

[PaperPusher]

How do you propose employers check?

[smuru]

Marriage certificate etc.
It doesn't matter if its difficult for them or that the UKBA have put the burden on them. That is what Article 25(1) demands.
It is up to the government to set the system up in compliance with the directive. For example, documents could be checked at a police station on behalf of employers.
Otherwise why have Article 25(1) at all.

[PaperPusher]

Marriage certificate etc.
It doesn't matter if its difficult for them or that the UKBA have put the burden on them. That is what Article 25(1) demands.
It is up to the government to set the system up in compliance with the directive. For example, documents could be checked at a police station on behalf of employers.
Otherwise why have Article 25(1) at all.

A bit like the documents being checked at the border, overseas post or as part of an application for a family permit then, just with the police instead.

[keffers]

For example, if a CRB check is required to help verify the identity of an employee would you say it cannot apply to an EEA national / family member because of what a Directive states?

A passport and ID card is enough because they are exercising their rights? A bit of common sense has to come into play at some point.

[anp]

Marriage certificate etc.
It doesn't matter if its difficult for them or that the UKBA have put the burden on them. That is what Article 25(1) demands.
It is up to the government to set the system up in compliance with the directive. For example, documents could be checked at a police station on behalf of employers.
Otherwise why have Article 25(1) at all.

You need to know the difference between laws and directives within EU. It's silly that you even consider the above.

[smuru]

Marriage certificate etc.
It doesn't matter if its difficult for them or that the UKBA have put the burden on them. That is what Article 25(1) demands.
It is up to the government to set the system up in compliance with the directive. For example, documents could be checked at a police station on behalf of employers.
Otherwise why have Article 25(1) at all.

You need to know the difference between laws and directives within EU. It's silly that you even consider the above.

I know the difference. Please back up such accusations.
Article 288 of the Treaty on the Functioning of the European Union
"To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.
..
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
But a directive must be transposed correctly into national law."

Also, the principle of direct effect likely applies as I already mentioned.

[anp]

smuru,

It is practically impossible for your suggestion to be applied hence it´s silly that you are so convinced that it can work.

UK has adopted Directive/2004/38/EC and thousands of people like us have benefited from it and I am very thankful for it. Perhaps, you should too.

Member states are required to adopt any EU Directive in whatever way they see fit. Member states can choose how exactly they would like to implement a ¨x¨ directive. Laws on the other hand are definitive. EU, for instance, regulates environmental law, but criminal law is regulated individually by each member state, similarly with Directive/2004/38/EC.

Directive/2004/38/EC does state the necessity of an APPLICATION in order to confirm your status. It also states the reasons for refusing it--public health, public policy, national security, or when a marriage is fraudulent. Now, how in world you expect an employer or a police officer to determine that, I have no idea. That is precisely why I think your demands are silly.

As I previously stated, there is a valid point on the processing time of our applications.

[smuru]

smuru,
Member states are required to adopt any EU Directive in whatever way they see fit. Member states can choose how exactly they would like to implement a ¨x¨ directive. Laws on the other hand are definitive. EU, for instance, regulates environmental law, but criminal law is regulated individually by each member state, similarly with Directive/2004/38/EC.

They can choose how to implemented it but it must be implemented. Directives specify the aim but not the method. Article 25(1) has not been implemented or at least conflicts with the UKBA advice to employers. Aire and Your Europe Advice agree with me that the COA and residence card cannot be made a precondition of exercising the right to work.


And once again ... direct effect may be applicable. Since the ECJ introduction of direct effect, the expectation that Directives are not binding until implemented no longer holds a priori. They can also have the status of a law. But this has to be tested on a case by case basis.

[anp]

Excatly. That's why an application is required. You are right in priniciple but your suggestion is obsolete, having in mind the current variance in necessity and the regularity of the specific cases on what interests the UK. Implementaion then becomes of a periphral nature.