Youth mobility visa to EEA extended family overstaying?

[lilychan9234]

Hi all,

I am Canadian and am currently on Tier 5 Youth Mobility Visa (expires 07 September) and I have applied for an EEA extended family member Residence Card as the unmarried partner of my Irish boyfriend.

I received my biometrics letter and the Certification of Application together today and it states that I have NO RIGHT TO WORK unfortunately.

I have found out that under the NEW Section 3C of the Immigration Act 1971 I would be considered as an "overstayer" while I wait for a decision on my residence card, which will take approximately 6 months from today.

My question is: am I right to think that once my Youth Mobility visa expires on 07 September, I become an 'over stayer' regardless of my pending residence card application? In addition, are there legal implications to this?

Finally, what are my best options?

1.) Should I cancel my current application and leave the UK and return to Canada and apply for a residence permit as the unmarried partner of an Irish national and re-enter the UK and then apply for a residence card?

OR

2.) Continue to stay in the UK and wait for a decision on my residence card in 6 months and just become an overstayer?

Please do let me know if you have any other suggestions besides those two mentioned.

Many thanks in advance,

Lily

[Casa]

How long have you been living together in a relationship 'akin to marriage' with the documented evidence to support this?

[lilychan9234]

Hiya,

We have been living together for 2 years and 1 month consecutively. We have all the bills and paperwork to support this and we have a mortgage on our current London flat; however, we are not married!

[Casa]

If your current visa expires before your EEA EFM application has been approved, you will have no Section 3C protection under the UK Immigration Rules and you will be considered an overstayer.

[lilychan9234]

Thank you for your response, are my best options to request my partners' and mine (obviously!) passport back from Home Office and leave the country and go back to Canada to apply for a Family Permit with all the original documents (guess I will be making a lot of phone calls tomorrow to banks and utilities for bills ) and re-enter the UK using that? Will this in any way jeopardise my current residence card application do you think?

[lorenr]

Hello!

Exact same situation as me - Tier 5, expired while waiting for a decision on my partner visa. I've just received a decision (no sign of card yet).

I spoke to an immigration lawyer about this and he said it's a very grey area. It could be argued that as the partner of EU citizens, deporting us would prevent the EU citizen from exercising their treaty rights. However, as we're not married, we don't have any rights per se. It's unlikely we'd get deported but there might be a bit of an argument.

In any case, I didn't work, I didn't travel. I just sat around and cooked my boyfriend's dinner every day while he went to work

Given your visa expires so soon, my advice would be to try and go home for a little while and apply for the family permit. Then you can come back and reapply for the residence card. You will then get a CoA with work. Might be an easier route. I didn't do this because I only figured it out after about 6 months.

Also, my timeline is coming in at just over 5 months so fingers crossed it takes the same for you!

Good Luck!

[lilychan9234]

All,

You wouldn't believe it, but my employer did a Home Verification check to see if I am able to work past my youth mobility visa. The sent back a Positive Verification Check, stating i have the right to work past my Youth Mobility visa until 06 February, 2018....while my COA says I cannot work! What on earth is going with Home Office? The conflicting information is not helpful, so can I work? Or do I have to cease work when my youth mobility expires? Absolutely ridiculous!

[lunallena]

Hi there,

The CoA that you received is a template that all unmarried partners get when applying as EFM. OH won't write a tailor-made letter. When I applied to get the RC as EFM I had a valid Tier2, which was going to expire at the end of the 6-month application period and still got a CoA with no right to work. If your employer knows the situation and has checked whether you can work I don't think there would be any problem.

[achk]

Hi,

I'm currently going through the EXACT same situation as you...

Will be applying for my certificate on the 29th of Aug (my unmarried partner and 1 will qualify for 2 years living together on the 28th. Tier 5 visa will end 3rd of Oct.

I phoned a few different immigration lawyers today and all said I had the right to work meanwhile I'm waiting for my application.

They suggested if any employer was unsure, they could go on the employer checking service as you suggested.

My question to you is, did you apply for the certificate/card online or via post? How long did it take for date of submission until you got the CoA?

Thank you!

[lilychan9234]

Hi there,

If you are already in the UK you should stay here and just apply for the residence card, it unfortunately MUST be done via post so you have to print out the ridiculous forms and fill it in. Or you can leave the UK and return to your home country and apply for the Family Permit which you MUST do online. In Canada where I'm from Family Permits get approved (or not approved!) within 5 working days so it will only be short stay for me. The Family Permit allows you to re-enter and it also allows you to work for 6 months; however, a lot of employers don't accept it weirdly enough and have to do the Employer Checking Service. Once you arrive in the UK with your Family Permit you have to apply for the Residence Card (once again only via paper and post) if you want to stay after the 6 months on your Family Permit.

It's really up to you but I obviously stayed here and just applied for my residence card as I thought I could continue to work even though my YM visa expired. Home Office FINALLY issued me with a COA right to work after I did my biometrics. I have NO idea why they sent me one that said I had NO right to work the first time when they sent me the letter asking for my biometrics to be done. It was such a scare - I'm not kidding. Below is my timeline if it helps!:

EEA Residence Card - unmarried partner of Irish citizen. Currently on Youth Mobility visa that expires on 06 September 2017.

July 3rd - Application sent
July 6th - Money taken
August 10 - Received confirmation email
August 12 - Received biometrics letter AND COA with no right to work! (letter dated 09 August 2017)
August 18 - Received COA with right to work (no idea why they sent me last one) (letter dated 15 August 2017)
??? - Received residence card

In addition, my employer requested a check on my right to work on the Employer Checking Serve on the 2nd of August and received a Positive Verification on the 9th of August saying I can work until 09 February 2018.

[eliza720]

Hi there,

If you are already in the UK you should stay here and just apply for the residence card, it unfortunately MUST be done via post so you have to print out the ridiculous forms and fill it in. Or you can leave the UK and return to your home country and apply for the Family Permit which you MUST do online. In Canada where I'm from Family Permits get approved (or not approved!) within 5 working days so it will only be short stay for me. The Family Permit allows you to re-enter and it also allows you to work for 6 months; however, a lot of employers don't accept it weirdly enough and have to do the Employer Checking Service. Once you arrive in the UK with your Family Permit you have to apply for the Residence Card (once again only via paper and post) if you want to stay after the 6 months on your Family Permit.

It's really up to you but I obviously stayed here and just applied for my residence card as I thought I could continue to work even though my YM visa expired. Home Office FINALLY issued me with a COA right to work after I did my biometrics. I have NO idea why they sent me one that said I had NO right to work the first time when they sent me the letter asking for my biometrics to be done. It was such a scare - I'm not kidding. Below is my timeline if it helps!:

EEA Residence Card - unmarried partner of Irish citizen. Currently on Youth Mobility visa that expires on 06 September 2017.

July 3rd - Application sent
July 6th - Money taken
August 10 - Received confirmation email
August 12 - Received biometrics letter AND COA with no right to work! (letter dated 09 August 2017)
August 18 - Received COA with right to work (no idea why they sent me last one) (letter dated 15 August 2017)
??? - Received residence card

In addition, my employer requested a check on my right to work on the Employer Checking Serve on the 2nd of August and received a Positive Verification on the 9th of August saying I can work until 09 February 2018.

Hi Lily,

Thank you for the post!

I am in the exact same situation as you. My tier 5 (Youth Mobility) will expire on the 1st September and I have applied for the EEA EFM on the 3rd July. I received the biometric letter and COA together on the 16th August (dated 11th August) which stated that Home Office can't confirm my right to work. I have done the biometrics on the 16th August and have written a letter to the case worker asking for a new COA to be issued.

I also gave the COA reference to my employer who is doing the Employer Checking Service now. Can you let me know if you have written a letter to the case worker asking for a new COA or they just sent a new one to you? I really hope that I can get a Positive Verification from the Employer Check.

Many thanks,
Eliza

[lilychan9234]

Hi Eliza,

I didn't write a letter but I did write an email to NWEUROCOARequests@homeoffice.gsi.gov.uk and to pdcteam52@homeoffice.gsi.gov.uk to ask them to fix my COA. My email was strongly worded but they have 21 days to write back to me. My revised COA letter with right to work probably had NOTHING to do with them in my opinion. Firstly because they never replied to my emails and secondly when I received my revised COA letter it has only been 5 days since I wrote those emails to them, I doubt they could read emails that fast and send one out in the post that quickly haha. Hopefully yours come soon and my timeline helps you estimate when you should receive a second revised COA letter. If you haven't already, I would suggest writing to those two email addresses!

Lily

[Richard W]

If your current visa expires before your EEA EFM application has been approved, you will have no Section 3C protection under the UK Immigration Rules and you will be considered an overstayer.

Section 3C protection arises directly from an act of parliament; it does not arise from the UK Immigration Rules. The question is how much an application for a family permit or residence card for an EFM acts like an application for a visa. It seems that there isn't any useful case law on the matter, and solicitors have been known to advise that it does. (Solicitors have also been known to give seriously incorrect legal advice.) The consequent residence card does act like a visa - the right to be treated as a family member expires when the card does, though at that time most holders would automatically acquire permanent residence.

In addition, my employer requested a check on my right to work on the Employer Checking Serve on the 2nd of August and received a Positive Verification on the 9th of August saying I can work until 09 February 2018.

It seems that someone who has worked at or for the Home Office believes that Section 3C protection applies. That doesn't answer the original question as to whether the OP will become an overstayer while she waits for a reply. It could be as simple as a programmer or a call line script writer mistakenly believing it applies.

[lilychan9234]

You are not protected by 3C if you are applying for anything (permit/visas) that is related to the EEA as an unmarried partner, so I knew I was going to overstay once my YM visa expires in 2 weeks but since they gave me a COA with right to work and my Employer Checking Service came out positive - hey ho i'm not going to complain! All the operatives on the phone gave me mixed messages and I called a total of 7 times. I believe Home Office doesn't even know the rules themselves, they shouldn't allow me to work but I'm not going to complain!

[Casa]

I believe that the 'help line' is staffed by an outside agency and the call operatives are poorly trained in the Immigration Rules.

[achk]

Hi there,

If you are already in the UK you should stay here and just apply for the residence card, it unfortunately MUST be done via post so you have to print out the ridiculous forms and fill it in. Or you can leave the UK and return to your home country and apply for the Family Permit which you MUST do online. In Canada where I'm from Family Permits get approved (or not approved!) within 5 working days so it will only be short stay for me. The Family Permit allows you to re-enter and it also allows you to work for 6 months; however, a lot of employers don't accept it weirdly enough and have to do the Employer Checking Service. Once you arrive in the UK with your Family Permit you have to apply for the Residence Card (once again only via paper and post) if you want to stay after the 6 months on your Family Permit.

It's really up to you but I obviously stayed here and just applied for my residence card as I thought I could continue to work even though my YM visa expired. Home Office FINALLY issued me with a COA right to work after I did my biometrics. I have NO idea why they sent me one that said I had NO right to work the first time when they sent me the letter asking for my biometrics to be done. It was such a scare - I'm not kidding. Below is my timeline if it helps!:

EEA Residence Card - unmarried partner of Irish citizen. Currently on Youth Mobility visa that expires on 06 September 2017.

July 3rd - Application sent
July 6th - Money taken
August 10 - Received confirmation email
August 12 - Received biometrics letter AND COA with no right to work! (letter dated 09 August 2017)
August 18 - Received COA with right to work (no idea why they sent me last one) (letter dated 15 August 2017)
??? - Received residence card

In addition, my employer requested a check on my right to work on the Employer Checking Serve on the 2nd of August and received a Positive Verification on the 9th of August saying I can work until 09 February 2018.

Hi lily,

Thanks for the timeline. Good to know the process was so speedy for you!

Have you 1) gotten your passport back since? 2) have you travelled since receiving your CoA?

Also, could you please provide some information to what documentations you sent to the HO as part of your application?

Thank you!

[lilychan9234]

Hiya,

I didn't get my passport back, in fact they keep it during that whole process unless you request it back for travel. We're not travelling anyway and plus I have no way of re-entering at the border once my youth mobility visa expires and doubt they will give me a tourist visa unless I have some return ticket to Canada. I could apply for a Family Permit to re-enter if I leave the country but I've got no plans to travel or go home. We submitted all our bills (council tax, electricity, gas, water, internet), leases when we were renting, we bought a flat and submitted our mortgage, and some photos of us together. Quite a bit but not too much, considering we bought a flat in London together, we hope that will show we have a "lasting committed relationship"!

[eliza720]

Hi Eliza,

I didn't write a letter but I did write an email to NWEUROCOARequests@homeoffice.gsi.gov.uk and to pdcteam52@homeoffice.gsi.gov.uk to ask them to fix my COA. My email was strongly worded but they have 21 days to write back to me. My revised COA letter with right to work probably had NOTHING to do with them in my opinion. Firstly because they never replied to my emails and secondly when I received my revised COA letter it has only been 5 days since I wrote those emails to them, I doubt they could read emails that fast and send one out in the post that quickly haha. Hopefully yours come soon and my timeline helps you estimate when you should receive a second revised COA letter. If you haven't already, I would suggest writing to those two email addresses!

Lily

Hi Lily,

Thanks for your reply. I have sent the email already on the day I received the COA. Btw, did you show your COA letter to the employer? I have only given the case reference as I am a bit reluctant to show the letter which stated that 'Home Office is unable to confirm my right to work'. I have provided the reference on Monday and as far as I know, it takes around 5 days to turnaround - was that your case? But my contracting agency is asking me if I could show them the COA letter now...

Many thanks,
Eliza

[lilychan9234]

Hi Eliza, yes my employer did get a reply within 5 working days. I didn't show my first COA and I also didn't tell them I couldn't work. I just told them to do the check. When I finally received the second COA I then did show it to them.

[achk]

Hi Lily,

Can I just ask, when you submitted your application & the supporting documentation.

Did you supply ORIGINAL copies of all your documents? e.g. all your utility bills in original form?

Most of my bills are done done electronically hence why I'm asking to see if that's accepted.

Thank you!

[lilychan9234]

Hiya,

Yes original!! Not sure if they accept photocopies or online copies, don't quote me on it. When my partner applied for PR, the guidance said original documents only so I assumed this would apply for this as well. Bank statements had to be original, if not, you can have the online version but you have to go in the bank and get them to stamp each month's statement (what a hassle).

[maxdemian86]

Hi Eliza, yes my employer did get a reply within 5 working days. I didn't show my first COA and I also didn't tell them I couldn't work. I just told them to do the check. When I finally received the second COA I then did show it to them.

Hi Lily,

Thank you for sharing your story. You have a very similar case to ours. I'm an EU Citizen (Italy) in a durable relationship with my Taiwanese partner (unmarried). We have been in a relationship for more than 2 years and half now and lived together in the UK for almost 2 years (it will be exactly 2 years on the 4th of February 2018 when she moved to London to work with her Tier 5 Youth Mobility Visa). In the application we have provided all the evidences from multiple sources, in original copies.

At the beginning of January we applied for both EEA (QP) and EEA (EFM). My partner received a COA without right to work. Her Tier 5 Visa is going to expire on January 27th and her employer is asking if she still has right to work ask they would like to keep her. The situation is getting quite critical.

Can the Employer Checking Service online form confirm to her employer her right to keep working? Is this the correct link (https://www.gov.uk/employee-immigration ... ent-status) to the ECS that was used in your case?
At this link there are few options under the question "Does this person have any one of the following?":
- an ongoing application or appeal for leave to remain in the UK
- an application for no time limit to be added to a new passport by someone who already has indefinite leave to enter or remain in the UK
- an application for transferring a current visa into a new passport / Biometric Residence Permit (BRP)
- an application for a replacement BRP
- a Certificate of Application issued to a family member of an EEA national stating that the holder is allowed to work
- an Application Registration Card (ARC) for an asylum seeker stating that the holder is allowed to work
- none of the above

None of them seem to apply to our case but if you select "none of the above" (and you are not a refugee looking for settlement) the system says: "You cannot request a Home Office right to work check".
Which one of the options above has been selected by your employer to go forward with the check and to receive Positive Confirmation of right to work?
The only suitable option, at least that allows to submit the ECS form, seems to be "an ongoing application or appeal for leave to remain in the UK", even though I'm not sure it's really accurate.

I hope we will be able sort out this tricky situation soon.

Thank you in advance!

ps. Hope our timeline will be of help for someone:
January 3rd - Applications for EEA (EFM) and EEA (QP) sent in the same envelop via Royal Mail Special Delivery (along with an additional pre-paid envelop)
January 4th - Applications reached Home Office
January 8th - Money taken for both applications (debit card)
January 9th - Received confirmation email for both applications
January 11th - Received biometrics letter and COA with no right to work (letter dated January 8th)
January 12th - Biometrics submitted
??? - Received residence card

[dan1988uk]

Hi Eliza, yes my employer did get a reply within 5 working days. I didn't show my first COA and I also didn't tell them I couldn't work. I just told them to do the check. When I finally received the second COA I then did show it to them.

Hi Lily,

Thank you for sharing your story. You have a very similar case to ours. I'm an EU Citizen (Italy) in a durable relationship with my Taiwanese partner (unmarried). We have been in a relationship for more than 2 years and half now and lived together in the UK for almost 2 years (it will be exactly 2 years on the 4th of February 2018 when she moved to London to work with her Tier 5 Youth Mobility Visa). In the application we have provided all the evidences from multiple sources, in original copies.

At the beginning of January we applied for both EEA (QP) and EEA (EFM). My partner received a COA without right to work. Her Tier 5 Visa is going to expire on January 27th and her employer is asking if she still has right to work ask they would like to keep her. The situation is getting quite critical.

Can the Employer Checking Service online form confirm to her employer her right to keep working? Is this the correct link (https://www.gov.uk/employee-immigration ... ent-status) to the ECS that was used in your case?
At this link there are few options under the question "Does this person have any one of the following?":
- an ongoing application or appeal for leave to remain in the UK
- an application for no time limit to be added to a new passport by someone who already has indefinite leave to enter or remain in the UK
- an application for transferring a current visa into a new passport / Biometric Residence Permit (BRP)
- an application for a replacement BRP
- a Certificate of Application issued to a family member of an EEA national stating that the holder is allowed to work
- an Application Registration Card (ARC) for an asylum seeker stating that the holder is allowed to work
- none of the above

None of them seem to apply to our case but if you select "none of the above" (and you are not a refugee looking for settlement) the system says: "You cannot request a Home Office right to work check".
Which one of the options above has been selected by your employer to go forward with the check and to receive Positive Confirmation of right to work?
The only suitable option, at least that allows to submit the ECS form, seems to be "an ongoing application or appeal for leave to remain in the UK", even though I'm not sure it's really accurate.

I hope we will be able sort out this tricky situation soon.

Thank you in advance!

ps. Hope our timeline will be of help for someone:
January 3rd - Applications for EEA (EFM) and EEA (QP) sent in the same envelop via Royal Mail Special Delivery (along with an additional pre-paid envelop)
January 4th - Applications reached Home Office
January 8th - Money taken for both applications (debit card)
January 9th - Received confirmation email for both applications
January 11th - Received biometrics letter and COA with no right to work (letter dated January 8th)
January 12th - Biometrics submitted
??? - Received residence card

This is an extraordinarily quick timeline!

[vinny]

Unfortunately, it appears to be their procedure to issue a short COA to extended family members, unless 7(3) applies.

[maxdemian86]

Hi Dan and Vinny,

Thank you for your quick reply.
I can see your point, Vinny. That's why I'm surprised and delighted that Lily received Positive Verification from ECS as she was in a very similar situation as my Non-EEA partner.

Lily, I also wanted to ask you what kind of email you wrote to NWEUROCOARequests@homeoffice.gsi.gov.uk and to pdcteam52@homeoffice.gsi.gov.uk to receive a revised COA that includes right to work. I guess you added a particularly effective touch when explaining your situation. In your case, as in ours, evidences are quite strong and prove a durable relationship akin to marriage. There must be a way to have them revising the short COA.

Please, let us know if you have suggestions about the content of the email to send to HO to correct the COA.

Thank you for your support!