6 months pregnant. Workplace dismisal upon waiting for COA.

[Yummymummy23]

Hi there, apologies in advance for the long post.
I am a bit stuck at the moment. I entered the UK from Australia on a tier 5 youth mobility visa 2 years ago which has since expired. I am married to a (Portuguese) EU citizen (September 2016) who is currently living and working in the U.K. with me as per his rights. I am also 6 months pregnant with (obviously) his child.

I applied for an EEA (fm) about a week before the tier 5 visa expired and this is my current process:

Application applied: 4/11/2016
Application received: 7/11/2016
Payment taken: 9/11/2016
Biometrics letter received and completed: 19/11/2016
COA: still waiting

Since my tier 5 visa expired I am no longer working but I am still employed by the company. The day after my visa expired I received a call from head office stating that they would cancel my work contract within one week if they did not receive any proof that I am able to still work. My managers have been helping me trying to delay this happening but I today received a letter in the mail stating I will have a meeting in 2 days that will result in my contract being cancelled unless they are provided with the necessary information (i.e. COA) . Does anyone know if they are legally able to cancel my employment, knowing that an application has been submitted(waiting on COA), that I am married to an eu citizen who works for the same company, and especially since I am 6 months pregnant (therefore meaning I would then have no right to maternity pay/leave).


Thanks in advance

[noajthan]

As you have filed biometrics stall HR for few days then get company to run ECS.

[ijjlian]

According to my experience CoA arrives exactly one week after the Biometric enrollment. Show them the proof that you enrolled your biometrics and tell them that the CoA should arrive soon. On your biometric enrolment you have a Cae ID number already.


My company dismissed me with immediate notice in you situation (in October), but there were some admins of this forum stating that it is not legal to do that. I have not fought against it though. I didnt know who to contact to get proper legal help and they promised to reemploy me when I get my CoA. I am still waiting...

[ijjlian]

Another option that comes to my mind it that send a next day delivery letter to the Home Office. Enclose another next day delivery envelope and request a CoA, explaining your situation with your employer and that you are pregnant etc. It is a creative solution but it might actually work.

I expect your CoA to be currently in post by the way. But you can try if you like.

[noajthan]

Company simply needs to run ECS as they are entitled and supposed to do in these kind of situations.
Just give biometrics time to work through the system.

https://www.gov.uk/employee-immigration ... ent-status

[ijjlian]

noajthan, I remember reading in the employer's guidence to acceptable working right documents that Positive Verification will only be issued after the CoA.

In case her CoA ois already issued this will work...

[noajthan]

ECS can be done after bio.
If OP has a COA (with confirmation) then ECS wouldn't be required.

As OP has no COA but has done bio then obvious next step is ECS.
Employer should know this.

[MrSlyFox]

On my COA it says it's only valid with an ECS which returns a positive result. So I believe an employer is required to have a copy of the COA and a positive confirmation of ECS

[ijjlian]

On my COA it says it's only valid with an ECS which returns a positive result. So I believe an employer is required to have a copy of the COA and a positive confirmation of ECS

I also thought the smae due the the wording on the CoA. My employer (or currently ex-) always takes a copy from the original.

Link to the guidance for employers:
https://www.gov.uk/government/uploads/s ... nts_v5.pdf

Quote form the document linked above, page 17:

Where the application is made by a direct family member, who has successfully
enrolled their biometrics and provided the correct supporting documents, the applicant
will be issued with a Certificate of Application which states that the individual has a right
to work in the UK whilst their application for a Residence Card or Derivative Residence
Card is being considered. This Certificate of Application will only demonstrate the right
to work if it is less than six months old and is accompanied by a Positive Verification
Notice issued by the Home Office’s Employer Checking Service stating that the holder
has permission to do the work in question. The excuse will last for six months from the
date of the Positive Verification Notice.

[noajthan]

If OP hangs around for COA they are likely to get fired first.

ECS can be done even without COA:
https://www.gov.uk/legal-right-work-uk/ ... /no/no/yes

At this stage of game that seems to be OP's only hope.
Its valid test as bio has been enrolled.

Worst case she loses job and takes employer to cleaners at tribunal.

[ijjlian]

How does it work to take the employer to tribunal? I havent seen any posts exploring this. Is there any information on the internet or any case law etc?

How come Home Office does not mention this on their guidance to employers at all? What can be done about this?

I would really appreaciate a dicussion on this as I think I am not the only one who has suffesred due to this gap in implementation in the UK.

Only link I have ever found is a post from 2011 in the web. I have no idea how to acces the relevant case(s). (If any)

"The case of Okuoimose v City Facilities Management UK Ltd involved a Nigerian national who was the spouse of a German national. Whilst Mrs Okuoimose originally presented an EEA residence permit to her employer this subsequently expired. The employer therefore suspended her without pay. Further checks by the employer with UKBA did not confirm her entitlement to work in the UK and they dismissed her. Eventually Mrs Okuoimose obtained a letter from UKBA confirming her right to live and work in the UK as a non-EEA family member and her employer therefore reinstated her. Mrs Okuoimose sought to recover all the lost salary during her period of suspension via the courts."

I even think such a discussion can be pinned as a permanent topic to save lives of EEA fam members.

[ijjlian]

I would indeed definetely try the Employer Checking Service...

[noajthan]

How does it work to take the employer to tribunal? I havent seen any posts exploring this. Is there any information on the internet or any case law etc?

How come Home Office does not mention this on their guidance to employers at all? What can be done about this?

I would really appreaciate a dicussion on this as I think I am not the only one who has suffesred due to this gap in implementation in the UK.
...[/i]

I even think such a discussion can be pinned as a permanent topic to save lives of EEA fam members.

Out of scope.
This is am immigration forum for immigration matters.

For regular civil law disputes such as employment issues seek appropriate advice from an appropriate legal professional.

[Yummymummy23]

Thanks for the feedback/advice guys. I will definitely hold off my employer for a few days then ask them to run the ECS

[ijjlian]

Out of scope.
This is am immigration forum for immigration matters.

For regular civil law disputes such as employment issues seek appropriate advice from an appropriate legal professional.

I do not see how this is out of scope when dismissal relates to the excersizing of EEA family member rights?

This is simply a gap in employer's guidance that leads to a serious outcome such as losing your job at the spot.

[noajthan]

Out of scope.
This is am immigration forum for immigration matters.

For regular civil law disputes such as employment issues seek appropriate advice from an appropriate legal professional.

I do not see how this is out of scope when dismissal relates to the excersizing of EEA family member rights?

This is simply a gap in employer's guidance that leads to a serious outcome such as losing your job at the spot.

Because I am referring to 'employment tribunal'.
For such questions find an employment law forum or employment lawyer/advice service.

[Yummymummy23]

Quick question/update...
Does anyone know if you need to sign for the letter containing the COA? I received a slip from the post office saying they tried to deliver a letter yesterday that had to be signed for but as I was not home I had to pick it up from the post office today. I went to the post office and they have no record of the postman returning it back to the post office yesterday, in other words it is lost.
Im not waiting on anything else to be delivered so could this 'lost letter' be my COA? Is it normal practice to need to sign, since it is an official document?

[ijjlian]

I never needed to sign for it, they always drop it in the postbox like the bio letter.