Tier 4 Concessions for Tier 2 currently on a Residence Card

[reginaserpa]

Hello, I am hoping someone can help advise on a rather complex case.

I am looking for my current employer to sponsor me on a Tier 2 (general) visa. I currently have a Residence Card which is set to expire in July 22 2018 and my employer is threatening to dismiss me on 23 July 2018 because they (wrongly) take that as the date that my Right to Reside ends. Some background info on that:

I entered the UK in September 2009 as a dependent partner of a Tier 4 student (both American). In 2011 he obtained an Irish passport and was entered onto the foreign births registry. I was working fulltime and successfully applied for a Residence Card on the basis that my husband was economically-self sufficient on my wages (we have CSI). My Residence Card was issued 22 July 2013 and his Registration Certificate issued on the same date. His does not expire but mine is set to expire on 22 July 2018.

I applied for Permanent Residency in May of 2017, which was refused because the Home Office took the date of issue of the Registration Certificate as the point at which the Qualifying period starts since we both entered under Tier 4. I appealed the decision (on the papers) on the basis that the Qualifying period starts on the date he was entered into the foreign births registry (2011) and therefore by 2017 was well within the qualifying period. This appeal was refused in September 2017 on a technicality- they did accept my argument, but that in the documents I submitted they did not find evidence of CSI over the entire qualifying period I was claiming. To make things more complicated, I became homeless in September 2017 when my husband kicked me out of the house. I am eligible for Permanent Residency in July of 2018 (as stated in my refusal letter) however making an application without the support for my sponsor makes this practically impossible.

I have considered applying for a retained right of residency, where as I understand documentation requirements are relaxed for exceptional circumstance (I have his Registration Certificate and his original foreign births registry certificate but not his Irish Passport, or proof of his exercising his RtR although I think I can again argue economically self sufficient and provide my wage slips as evidence). This route still feels incredibly risky as I do not want to risk losing my Right to Reside should I fail in my application for retained right of residence. Plus, I do not have a divorce decree, which as I understand would take at least 1 year to issue, and my immediate problem is my employer threatening to dismiss me come 23 July 2018. I have spoken to a lawyer, and I would have grounds to bring my case to a work tribunal for unfair dismissal, but equally my employer would have a defence saying the burden rests with me to provide evidence of my confirmed right to work in the UK- which is incredibly difficult without a valid Residence Card.

So, I am exploring a solution through Tier 2 (general sponsorship). I work part-time as a lecturer at a university earning £33k/yer prorate- as I understand it the £20,800 threshold would apply to me (not the £30k) because I have been granted leave to enter prior to 24/11/16 when the new rates of pay came into effect. My main problem, it would appear is that anyone working less than 30 hours is not eligible for Tier 2 sponsorship. I have done even more searches around this and being a fulltime PhD student currently, I wonder if I can qualify for Tier 4 concessions for tier 2 visa (which would exempt me from certain criteria). Do I need to have a valid Tier 4 visa at the point of applying for concessions? As explained above, I entered on a Tier 4 but this expired in 2013. As a current PhD student, could I apply for a new tier 4 visa while being in the UK legally? And then after obtaining that, then apply for the tier 4 concessions?

I desperately do not want to lose my job on 23 July 2018, and I would rather not have to sue my employer for unfair dismissal if they did so. I am trying to find solutions but all 3 options available to me are not looking favourable (PR/RC, Retained Rights, or Sponsorship). I have spoken to 3 solicitors, the first refusing to assist me because a potential conflict of interest (he represents my employer), the second saying that my case is too complicated, and a 3 saying they do not have capacity. I feel like I am running out of options, if anyone can advise, I would be incredible grateful.

Many thanks for your attention,
Regina

[4uvak]

There is a lot of information in your post and a lot of questions. You have 2 choices: invest your time in detailed research on each option availiable or find a good immigration advisor. I doubt someone will give you a full advise on your situation here as in most cases the main function of this forum is to point in the right direction rather than giving a full professional advice on particular situation. In general, I would advise to go EEA route - it's much easier and cheaper and the requirements usually less strict than other rules. I would start from The Immigration (European Economic Area) Regulations 2006 here http://www.legislation.gov.uk/uksi/2006 ... tents/made.

[CR001]

As you are under the eu rules, your rights are automatic as you are the spouse of an EU citizen exercising treaty rights. A residence card is not even mandatory and your rights do not end when the card does.

If your employer dismisses you, it will be an unfair dismissal and you could take it to the employment tribunal and win.