Re-apply for EEA4 or appeal? or applying for another EEA2?

[Moni]

Hi everyone,

My situation is a bit confusing. I would be grateful if anyone can give me any valuable information.

Please accept my apologies for posting this long post.

I applied for EEA4 in August 2012.

At that time I was on 5 year family permit which expired in October 2012 while EEA4 was in process.

I got a refusal letter in December 2012 giving me two periods of more than 6 months in which my husband was not exercising his Treaty rights (looking for work for more than 6 months)

I re-submitted more evidence in December 2012, asking for reconsideration.

I sent a letter in May 2013 asking for an update on my case.

Today I got a letter that they have accepted one of the periods as my husband was exercising Treaty rights but they refused to accept the other period as he was looking for work for more than six moths (from Jan 2008 to Oct 2008) and therefore the decision to refuse Permanent Residence is maintained.

My questions are:

1) AS there is no option given at the end of the letter received today, I called HO and the advisor told me that back in Dec 2012, I had the chance to appeal which I asked for reconsideration and now I have to leave the country or seek advice from OISC.

I want to know that what will happen If I apply again, submitting a new application. HO has accepted everything after OCT 2008. Shall I apply for a new EEA4 again, as I am applying in July 2013 I have to prove that my husband was exercising his treaty rights for the last 5 continuous years.Si I can say that from July 2008 to Oct 2008 my husband was seeking work and after he was self employed.or shall I apply for EEA2 as it is easier to get? If I apply for any of them, am I not considered as an over stayer as my 5 year visa expired back in OCT 2012.

2) As I am working at the moment, my employer asked me for further proof of my right to work. Yesterday I agreed that they can do a ECS( Employment Checking Service) from UKBA. As it just takes 5 working days for HO to get back to my employer , I am so worried that based on recent letter they say that I have no right to work as well. However HO assured me that while my case was in process, my previous status was valid.

Your prompt reply is highly appreciated.

Thanks so much for your patience and time!

[Imshzd]

If your husband is a qualified person at the moment then submit EEA 2 application,with all documents for last five years.
And write a letter to home office to consider PR if possible.

On this way,At least you will get RC again.

[Moni]

If your husband is a qualified person at the moment then submit EEA 2 application,with all documents for last five years.
And write a letter to home office to consider PR if possible.

On this way,At least you will get RC again.

Yes. My husband is a qualified person now and has been qualified since OCT 2008.
Have you heard of such a case of applying EEA2 and providing docs for the last 5 years and asking for considering PR? They may say that as I did not apply for EEA4, I can not be considered to get PR.

[Imshzd]

Yes I heard that.

If your husband is a qualified person since oct 08 without any more then 6 months gap then oct 13 you can ask for PR.

Apply with EEA 2 with the covering letter and request for PR.

Form EEA 2/4 does not matter.

[Moni]

Imshzd,

Thank you for your response.

If I apply tomorrow for EEA2 , can HO force me to leave UK as my visa already expired?

Any idea about Employment Check Service?

Thanks.

[Imshzd]

Imshzd,

Thank you for your response.

If I apply tomorrow for EEA2 , can HO force me to leave UK as my visa already expired?

Any idea about Employment Check Service?

Thanks.

As you are a family member of an EEA national who is a qualified person in the United Kingdom,So no one can force you to leave the country unless deportation orders.

What you want to know about employment check service?

[Moni]

What you want to know about employment check service?

As my 5 year visa has already expired(OCT 2012) , I have already provided a letter from HO that I have an application under process which can take up to 6 months and because it has taken longer as I got the refusal and re-submitted more docs (which my employer doesn't know), Yesterday my employer got my permission to fill a form of ECS and sent it to UKBA which takes just 5 days to get a reply if I am eligible to work or not.

I have already contacted HO and they have told me while your application is in process your previous status in place. my concern now is as at this moment I have no application under process, I get a negative answer for my ECS and by tomorrow which I apply for EE2 and send it to HO, it will be too late

[Imshzd]

Did you received COA?

[Moni]

I received Certificate of Application dated 17 Oct 2012 which indicates that it is just valid for 6 months.

[Imshzd]

As I read your first post that today you received a letter in which HO refused your application,and at the moment there is no application pending in home office,so I assume that employers checking service may not confirm your right to work.Your employer will receive an email within 2 or 3 days.

If employers checking service follow the EU regulations then they will confirm your right to work.Lets wait.


But as a family member of an EEA national who is a qualified person no one can enforce you to leave the country.

try to sent your fresh application along with the required documents.

[Obie]

Well you should appeal. The six month rule is not absolute, if you spouse could show he was genuinely seeking work, and had a realistic prospect of seeking work, then this period is extended.

In my view, and it is strongly arguable, that there is a presumption that such is the case, if the person subsequently secured work after the extended period, with the effect that the whole period should be taken into account.

[Moni]

Well you should appeal. The six month rule is not absolute, if you spouse could show he was genuinely seeking work, and had a realistic prospect of seeking work, then this period is extended.

In my view, and it is strongly arguable, that there is a presumption that such is the case, if the person subsequently secured work after the extended period, with the effect that the whole period should be taken into account.

The letter that I got today finishes like this:

"I have reviewed the handling of your application and the decision made on it and I am satisfied that the correct procedure were followed in the decision making process. There are therefore, no grounds for reconsideration of your client's application.Therefore the decision to refuse you Permanent Residence in the UK is maintained."

It does not give me any options such such as appeal or re-apply. The adviser in HO told me today that I do not have any right to appeal now as I could appeal when you got the refusal back in Dec 2012.

Do you still think that I can appeal or it is better to apply EEA2 now with providing doc for 5 years asking for PR in the letter like the way Imshzd suggested earlier.

[Moni]

I'm going to apply for EEA2 today with the docs that need to be sent for EEA2 and in October which it'll be 5 continuous years that my husband has exercised his treaty rights, I'm going to provide all the docs for the last 5 years and ask them to consider giving me PR.I was thinking in this way I have an application in process first when October comes and if I haven't received my RC by then, I could provide more docs and ask them to consider giving me PR.

My questions are:

1- Is it a wise decision to do?

2- For how long shall I provide docs when applying EEA2 ; just recent or last 6 months?

Many thanks.

[Imshzd]

I'm going to apply for EEA2 today with the docs that need to be sent for EEA2 and in October which it'll be 5 continuous years that my husband has exercised his treaty rights, I'm going to provide all the docs for the last 5 years and ask them to consider giving me PR.I was thinking in this way I have an application in process first when October comes and if I haven't received my RC by then, I could provide more docs and ask them to consider giving me PR.

My questions are:

1- Is it a wise decision to do?

2- For how long shall I provide docs when applying EEA2 ; just recent or last 6 months?

Many thanks.

1:Good move.
2:as much as you can.

[Moni]

Well I sent EEA2 on 19th July.

My employer received the result of ECS from home office on 20 stating " I have checked our records and I can confirm based on the evidence we currently have that this individual is not currently entitled to work in the UK on the basis of an outstanding application for a residence card as the family member of a European national."

I got suspended from work from today and I should attend a disciplinary hearing later this week which I am quite positive that thet are going to dismiss me.

I called HO today they can not confirm that they have received my application and there is no way that I can ask for COA as a matter of urgency.

The problem is that HO checked me against the previous application for EEA4 and replied back to my employer while my new EE2 was on its way.

Don't know what to do. I appreciate your comments and suggestions.

[Imshzd]

Well I sent EEA2 on 19th July.

My employer received the result of ECS from home office on 20 stating " I have checked our records and I can confirm based on the evidence we currently have that this individual is not currently entitled to work in the UK on the basis of an outstanding application for a residence card as the family member of a European national."

I got suspended from work from today and I should attend a disciplinary hearing later this week which I am quite positive that thet are going to dismiss me.

I called HO today they can not confirm that they have received my application and there is no way that I can ask for COA as a matter of urgency.

The problem is that HO checked me against the previous application for EEA4 and replied back to my employer while my new EE2 was on its way.

Don't know what to do. I appreciate your comments and suggestions.

I do understand your situation.
HO employers check service are not well known about EU regulations.
By EU law you don't need any RC/PR,but in the U.K,the practice is totally against the EU regulations.
At this stage you can't do any thing.
Just wait for your COA.
Once you received your correct COA then your employment problem will be solved.

[joanna2014]

Hi in this time all u need to do is take you marriage certificate and your husband Passport and proof of address to you employer. Meeting and explain the EU law to them
Or u can buy the time and do not go to your meeting and explain them due to many resion u can ask them to postpone the meeting exampl
Unwell or stress or many thing I'm sure u can buy atlest month time with that
Hope my advice will help
Thanks
Regards
Jo

[Moni]

Hi in this time all u need to do is take you marriage certificate and your husband Passport and proof of address to you employer. Meeting and explain the EU law to them
Or u can buy the time and do not go to your meeting and explain them due to many resion u can ask them to postpone the meeting exampl
Unwell or stress or many thing I'm sure u can buy atlest month time with that
Hope my advice will help
Thanks
Regards
Jo

I sent all these docs applying for EEA2 to HO.

I asked them if they can postpone the hearing, the answer was no. They said the time limit between suspension and hearing shouldn't be more than 48 hrs.

I can have a companion but only a colleague who works for that company or a member of Trade union, but not a family member or a friend.

In the hearing I'm going to ask them if they can still keep me under suspension so I can provide COA in 2-3 weeks hopefully and come back to work if possible.

I'm going to fight my corner but I know that they won't listen and they will dismiss me.

[Moni]

After spending 2 days on the phone talking to Home Office and sending them emails, I managed to get the COA just in time for my hearing meeting.

Despite providing them with the new COA, I got dismissed on the grounds of not being eligible to work in period between the expiration of my last COA (while EEA4 was under process and got refused and resubmitted new docs) and the new COA.

I have to have a letter from HO to prove. I asked them to call employer help line and they told me it is my duty and responsibility not theirs.

Do you think HO provide me with such a letter or not.

[Jambo]

After spending 2 days on the phone talking to Home Office and sending them emails, I managed to get the COA just in time for my hearing meeting.

Despite providing them with the new COA, I got dismissed on the grounds of not being eligible to work in period between the expiration of my last COA (while EEA4 was under process and got refused and resubmitted new docs) and the new COA.

I have to have a letter from HO to prove. I asked them to call employer help line and they told me it is my duty and responsibility not theirs.

Do you think HO provide me with such a letter or not.

Seek legal advice. From the sounds of it, this is unfair dismissal.

I suggest you read Sponsors, paranoia and unfair dismissal.

[Moni]

Seek legal advice. From the sounds of it, this is unfair dismissal.

I suggest you read Sponsors, paranoia and unfair dismissal.

Can you suggest any good solicitor who knows European law and expert in employment law as well?

I am going to appeal to this decision anyway and my employer told me if I could provide a letter from HO confirming that for the period between 2 COA I was eligible to work in the UK, it should be OK.

If I can't provide that letter, I have to find a good solicitor for the employment tribunal.

[Jambo]

I don't know any solicitor (good or bad) and if I were you, I would not take any recommendations from people I don't know (even if they are "guru").

It sounds to me that they ask you to do all the leg work for them (not willing to call Employer helpline, you need to provide the letter). Legally, they only required to check your documents once a year even if the document expires the day after they check you. Suggest to them to consult with legal advice before continuing as this is illegal and you will seek compensation in a case of unfair dismissal.

I would think it would be tricky to get a letter from the HO confirming your right to work between the CoA. The HO is not very good in doing things outside their normal procedures. Better to get a solicitor to write it.

[Moni]

I don't know any solicitor (good or bad) and if I were you, I would not take any recommendations from people I don't know (even if they are "guru").

Thank you for your advice. I am going to consult Citizen Adviser Bureau and do some research to find a good one.

It sounds to me that they ask you to do all the leg work for them (not willing to call Employer helpline, you need to provide the letter). Legally, they only required to check your documents once a year even if the document expires the day after they check you. Suggest to them to consult with legal advice before continuing as this is illegal and you will seek compensation in a case of unfair dismissal.

That's exactly what they are doing. They were telling me in the meeting that they do not have any obligation to call as they already have a letter from HO in hand that I am not eligible to work. At the end of meeting when I was dismissed, I was urging them to call and they told me that I am not their employee any more and there is no need to do that.

I would think it would be tricky to get a letter from the HO confirming your right to work between the CoA. The HO is not very good in doing things outside their normal procedures. Better to get a solicitor to write it.

I have sent them an email last night asking them for a confirmation letter. I was talking to Employers helpline today and it seems that there is letter on the way for me. I will update here as soon as I receive that letter.

[joanna2014]

After spending 2 days on the phone talking to Home Office and sending them emails, I managed to get the COA just in time for my hearing meeting.

Despite providing them with the new COA, I got dismissed on the grounds of not being eligible to work in period between the expiration of my last COA (while EEA4 was under process and got refused and resubmitted new docs) and the new COA.

I have to have a letter from HO to prove. I asked them to call employer help line and they told me it is my duty and responsibility not theirs.

Do you think HO provide me with such a letter or not.

you are defiantly unfair dismissal
i strongly agreed to jambo u have to go for legal advice

[Moni]

you are defiantly unfair dismissal
i strongly agreed to jambo u have to go for legal advice

Just a quick update:

I talked to Citizen Adviser Bureau and the adviser told me that I can not take this case to employment Tribunal as unfair dismissal as I have worked just 1 year in that company rather than 2 years.

I have appealed against the dismissal anyway. I have asked Ho to provide me with a confirmation letter that between the expiration of my first COA and the issuing of the second COA i was eligible to work and live in the UK.

Today I've got a letter stating:

"I can confirm that your application for Permanent Residence was refused on 8 December 2012. on 4 January we received a letter from yourself requesting a reconsideration of refused decision, at this point you were allowed to live and take employment in the UK whist your reconsideration was outstanding.

On 16 July 2013 your reconsideration was completed and decision was maintained.

On 19 July you submitted an application for a EEA residence card, this application is currently outstanding , you have been issued with a COA confirming your right to seek employment whist your application is outstanding.

You will be advised in due course of a decision on your application"

I'm going to show this letter to employer tomorrow, but they might say that there were times where I was not eligible to work.what can I do?