Not given right to work while application being processed

[manvipo]

Hi, I've applied for a permanent residency after 5 years living in the UK as an EEA family residency card holder, but to my surprised I was not given the right to work despite the HO knowing that i have been working all that time (EEA card mentioned that I had the right to work). I have got and done the biometrics at the post office last Saturday 26th of September and also received a letter stating

" At this stage we are unable to confirm your right to work in the UK. This will depend on the outcome of the application . This is because you have not provided original documentation for all of the following:
- evidence of relationship with your EEA national Sponsor;
we will not revisit the terms of your certificate of application during the consideration of your case. This means we will not confirm your right to work until your application is decided.

I've been with my partner since 1998, living together since 2001, have 2 kids born in 2002 and 2004 both are German Nationals because of my partner. All original documents were sent and nearly 3kg of them, photos, bills, correspondences anything you could imagine and originals has been sent. We have bills to pay and me being at work is imperative to keep our family going financially. we both work.
I've suspended from work yesterday because my employer carried an ECS check which came out negative and have a week to prove my right to work in the UK which is highly unlikely.
I would need advice on which way to go with this current situation? shall I resign with immediate effect from my job as i know that if I get dismissed it would hard for me to find another job once I get a right to work? Can wait to hear from helpful advisor.
Many thanks.

[vinny]

Sponsors, paranoia and unfair dismissal.

See also Processes and procedures for EEA documentation applications.

[Obie]

This is clearly wrong and unlawful as you have acquired the right of Permanent Residence, owing to you have complied with Regulation 7 (3) as a durable partner for 5 years.

You need to inform the UKBA that they have acted wrongly and that damages claims will follow if they do not rescind their current action of denying your right to continued employment .

[vinny]

Agree.

[manvipo]

@Vinny and @Obie,
Thanks for your reply, my partner and I though that there was something wrong with my application, we were expecting this to be a formality but suddenly we've got this set back. I first thought that this was a new way for the HO to deal with applications in general while they are being processed but apparently not. I had it sent by a solicitor and I am planning to speak to her this afternoon to clear the situation.
thanks again

[Obie]

Well he or she ought to have addressed it . Otherwise what's the point.

[manvipo]

I tried to call her, without success. will try later, thanks.
NB I have no criminal record.

[PutiniEEA]

I think it's a big mistake by HO

U need to figure out

[manvipo]

hi again, got hold of my solicitor about the my right to work and she pointed out that this is common procedure from the home office which I personally don't agree. She also pointed out that the ecs check carried out by my company should come out as pending and also doesn't understand why it came negative (ie that I do not have the right to work). I really don't get it.

[Obie]

Well there is a problem.

It is explainable and understandable when UKVI makes a mistake, but a rep who does not know the law or what's happening is an even bigger problem..

It should not have come out as pending and I do not agree that this is a common case . Totally rubbish.

If it was a first residence card application for a Durable partner, I would have been content.

But in this case, I have no hesitation that the lawyer is clearly wrong.

[vinny]

Agree.

[manvipo]

So what do you think my next step should be? I am out of ideas here.

[vinny]

Did you try clicking on the link that I had provided?
Obie already gave the correct advice.

[Obie]

Agree.

Just for completion. The ECS checks comes as either negative or positive. Allowed to work or not allowed to work . I have never had of pending.

Funny how these lawyers invent these things.

[vinny]

The Home Office apparently likes to say:

we are unable to confirm your right to work in the UK

It does not necessarily imply that you have no right to work. Just that they are unable to confirm your right to work.

Perhaps it shows more about their lack of ability, rather than your right to work?

[Obie]

I know that, "we are unable to confirm" is something they say.

But in English language, that cannot be interpreted as pending, surely.

[vinny]

They did put

At this stage we are unable to confirm your right to work in the UK. This will depend on the outcome of the application .

[Obie]

They did put

At this stage we are unable to confirm your right to work in the UK. This will depend on the outcome of the application .

I don't recollect ECS report coming in that format.

Coa issued to extended family members is worded that way.

[vinny]

I think this is what an ECS report probably did say (9.4):

The UKBA said that they had checked their records and could not confirm the Claimant’s entitlement to work and, furthermore, unless the Claimant did provide the Respondent with evidence of her entitlement to work:

“[she would] not have a statutory excuse against liability for payment of a civil penalty for employing an illegal migrant worker”.

[manvipo]

Thanks for your answers/help. Yes the did put

At this stage we are unable to confirm your right to work in the UK. This will depend on the outcome of the application .

on my letter but what are my options here? I've got a letter from work stating that if I don't provide them with a right to work this coming Tuesday they will have to dismiss me after only having an unscheduled meeting on the Thursday the 1st of October. Went to work and been called in the meeting room and got handed there and then a suspension without anyone with me at the meeting. there were no warning of a meeting to my knowledge.Do they have the right to do that? I am thinking of handing my resignation with immediate effect before The Tuesday meeting as there is no way I could get the right to work in time.I don't want that if I get my right to work, to have them to give as reference that I've dismissed, which won't look good. Planning to meet my solicitor on Monday.

[vinny]

If you sent your application for confirmation of PR in-time, i.e. before your residence card expires, then they should have treated you as a direct family member under 7(3) and issued the long COA accordingly. I think Obie's advice is sound.

[Obie]

The other way to look at it Vinny is that regulation 15 (1)(b) confers no discretion on a decision maker. As the OP has had 5 years on a Residence Permit, he or she has a right to PR , even without a valid residence card, as he resided here 5 years already.

The confirmation in 18 (2) , should be automatic, as I see it. Unlike regulation 17 (4) , 18 (2) confers no discretion.

[vinny]

Thanks, Obie. I hope that you don't mind, I've added some links in your post for the OP's benefit.

Although the PR may be automatic, the confirmation of PR may take at most six months to issue.

So, does the OP have to rely on the long COA, accompanied by a positive verification notice from the ECS, to demonstrate his rights to work?

[Obie]

If anything Vinny, I am most grateful for your help, in putting the relevant links. Thanks.

It seems to me, that the Home Office and the employer may be in breach of EU law if they deny the OP the right to employment.

The directive confer on a memberstate the right to examine the circumstance at the first instance. Once residence has been granted, the OP benefits from full rights under EU law.

The PR application under 18 (2) for confirmation under 15 (1)(b) , should be confined to assessing whether he was a durable partner through out the validity of the Residence Card and if his partner was a qualified person.


If he provided sufficient evidence to that effect, there is no reason why he should not be issued with a long COA.

[vinny]

Yes. He may be able to claim damages from both the UKVI and his employers.