Can my employer ruin my visa application?

[dianykno]

Hi everyone. This is my case and I hope someone can give me some light.
I have applied for the unmarried partner visa with an European citizen back in November 2015. My Coa from Home Office said they were unable to confirm my right to work. I did not know what this meant so, since I had a solicitor doing my application I asked her, and she said that while I was waiting for my resident card I could work because I keep my rights exactly as they were with my previous visa (I was a student before). But even so, I advised my company to contact the Home Office to be sure. Also I showed my Coa to my manager who agreed with what my solicitor said. Three months later, my employer finally called with the HO who said I do not have the right to work. Now, they have opened a formal disciplinary action against me for breaching their rules and they have strong allegations against me which sound very intimidating. My questions are. Can they somehow accuse me of something that can ruin my application to remain legally in this country? and can they ruin my professional future by stating I misconducted and broke their rules?
I did agree with them to contact the home office on my behalf back in November last year. I have emails to prove it, and to prove that I was willing to cooperate. Thanks for your help.

[member]

Hi everyone. This is my case and I hope someone can give me some light.
I have applied for the unmarried partner visa with an European citizen back in November 2015. My Coa from Home Office said they were unable to confirm my right to work. I did not know what this meant so, since I had a solicitor doing my application I asked her, and she said that while I was waiting for my resident card I could work because I keep my rights exactly as they were with my previous visa (I was a student before). But even so, I advised my company to contact the Home Office to be sure. Also I showed my Coa to my manager who agreed with what my solicitor said. Three months later, my employer finally called with the HO who said I do not have the right to work. Now, they have opened a formal disciplinary action against me for breaching their rules and they have strong allegations against me which sound very intimidating. My questions are. Can they somehow accuse me of something that can ruin my application to remain legally in this country? and can they ruin my professional future by stating I misconducted and broke their rules?
I did agree with them to contact the home office on my behalf back in November last year. I have emails to prove it, and to prove that I was willing to cooperate. Thanks for your help.

Did you get fired after they called the HO?

[Richard W]

My Coa from Home Office said they were unable to confirm my right to work. I did not know what this meant so, since I had a solicitor doing my application I asked her, and she said that while I was waiting for my resident card I could work because I keep my rights exactly as they were with my previous visa (I was a student before).

There are two different concepts, and I suspect your employer's personnel department has confused them. One concept is your legal permission to work, and the other is your ability to furnish your employer with a statutory excuse against a fine for employing an illegal worker. Your solicitor should have advised you that although you had permission to work, you could not furnish a statutory excuse until you received your residence card.

Now, they have opened a formal disciplinary action against me for breaching their rules and they have strong allegations against me which sound very intimidating.

Exactly what are they alleging? What exactly did the Home Office say?

Can they somehow accuse me of something that can ruin my application to remain legally in this country? and can they ruin my professional future by stating I misconducted and broke their rules?

If your partner is not a permanent resident and is a qualified person only because of your earnings, it seems to me that it is very easy for the Home Office to destroy the basis of your stay in the UK. Otherwise, your status depends only on your partner's in theory; in practice it also depends on your ability to demonstrate that you are your partner's partner.

If you claimed you could furnish a statutory excuse before you received your residence card, you have misled your employer.

[Petaltop]

since I had a solicitor doing my application I asked her, and she said that while I was waiting for my resident card I could work because I keep my rights exactly as they were with my previous visa (I was a student before).

How many hours per week did that student visa allow during term time? How many hours per week have you been working?

[noajthan]

...

My questions are. Can they somehow accuse me of something that can ruin my application to remain legally in this country? and can they ruin my professional future by stating I misconducted and broke their rules?
I did agree with them to contact the home office on my behalf back in November last year. I have emails to prove it, and to prove that I was willing to cooperate. Thanks for your help.

If it gets worse this may give you a steer:
https://www.freemovement.org.uk/sponsor ... dismissal/

[dianykno]

Hi there. Thanks so much for your reply.
So, my company is accusing me of breaching the contract by not providing an evidence that I could legally work.
Also of a breach on behaviour policy, which states that 'I must observe the company's rules, regulation and instructions'.
And finally, if sustained, 'serious breach of conditions of employment or employee's duties' is considered gross misconduct under their policies.
From the moment I applied for my visa extension I have informed my employer. We agreed that they will contact the HO to make sure I had the right to work but they did do it right away. Meanwhile they kept me working but disconnecting my ID car every month. I would called them or email them, asked them if they contacted the home office? but they will just extend my work ID for another month. Until a different human resource staff took my case. I showed this person my Coa and again agreed they will contact the HO. SO, the UK visas and Immigration department answered with a ' No statutory excuse Notice'.
I understand that they must terminate my contract. But I never mislead them into employ me illegally. Therefore, I don't understand why the disciplinary action, when they could just end my contract.
My partner is a permanent resident and qualifies as my sponsor on the grounds of his earnings and our cohabitation for three years as partners, for which, I believe, I have submitted sufficient evidence.
Do I have to fear that my employee treats this as If I did something seriously wrong and jeopardises my application?

[Richard W]

I have overlooked something very important. Dianykno is an extended family member and, so far as we have been told, has not yet been issued an EEA family permit, a registration certificate or a residence card in respect of the relationship with her partner. Therefore, she seems not yet to have the rights of a family member! Is there some mechanism whereby an application for a residence card extends a previous visa, and how does that work for a student visa if she is no longer a student?

So, my company is accusing me of breaching the contract by not providing an evidence that I could legally work.

Is mere evidence of the right to work required, or does it have to furnish a statutory excuse? For example, an ILR stamp in an expired passport plus recent admission in a current passport with just the date recorded would be evidence that someone has permission to work, but it would not furnish a statutory excuse. Similarly, a Dutch passport would provide a statutory excuse, but it would not be evidence that the holder was permitted to work for just half a day a week.

So, how does your CoA provide evidence that you can work? Is the evidence that you believe you supplied your CoA plus your expired visa plus a Home Office statement that they have not yet decided on your application for a residence card?

Also of a breach on behaviour policy, which states that 'I must observe the company's rules, regulation and instructions'.

And finally, if sustained, 'serious breach of conditions of employment or employee's duties' is considered gross misconduct under their policies.

I am not sure how far they can share their conclusions. Point out to them that they can simply terminate your employment because (assuming it is actually true) you are not able to fulfil the contract, though the previous belief was that you could. There is no need for them to allege deception, which you strongly dispute. Ask how they would handle the case of someone who lost the right to work because his marriage broke down.

[nel974]

My best advice will be go find the best union that works for your profession.They will charge you around 10-20 pounds with similar kind of monthly fee and after registration discuss your matter. They will provide you with all the help you need in your job related issues.

[Richard W]

Is there some mechanism whereby an application for a residence card extends a previous visa, and how does that work for a student visa if she is no longer a student?

For visas, the mechanism is Section 3C of the Immigration Act 1971. Home Office guidance on Leave extended by section 3C is quite clear in this matter:

Section 3C does not extend leave where an application is made for a residence card under the EEA Regulations Immigration (European Economic Area) Regulations 2006. An application for a residence card is not an application to extend or vary leave, it seeks confirmation that rights under the EEA Regulations are being exercised therefore the applicant does not require leave to enter or remain.

Of course, the text in red is actually quite wrong in the case of an extended family member who has not yet been accepted as such. We already have a thread (September 2015) on the matter. Obie's persuasively argued that Reed vs Netherland. should make Section 3C applicable to applications by extended family members for acceptance as such.

Noajthan referred to the case of Okuoimose v. City Facilities Management (UK) Ltd. This case differs in two very significant aspects. Firstly, it seems that Dianykno does not have the rights of a family member until the Home Office says so. Secondly, the issue has moved on. It is no longer a question of whether someone has permission to work, for contracts have changed so that it is now rather whether they have 'proof' of that right.