employer helpline say i can't work?

[John2]

Guys just needing urgent advice.
I was married to Dutch national for 7 years, we in the process of divorce, we both excercised treaty rights. I obtained a 5yrs RC which expired on 29th Nov 2011. i submitted my application via a solicitor on 10th Nove 2011 with all the necessary documents except with a decree nisi, awaiting obsolute after 15th Dec 2011. HO sent me a letter on 29th nov, which they have told me on the phone, not yet recieved the letter, which i understand invalidate my application. i am assuming due to not providing the decree absolute.

my employer told me on friday that they had enquired and recieved a letter from employment helpline stating that i am not entitled to work, they have terminated my contract, henceforth. my employer have insisted they will go by this letter.

I have rang HO EEA department (call centre) who have said I am entitled to work, but they cannot send me a COA.

I got a mortagage and a 3 months old/wife off work, all needing support.

Just wondering whether anyone can advice on the way forward or know a good solicitor that can assist?
Should i be considering a judicial review on the employment line decision?

[olujay25]

Hi,
This might sound stupid why start divorce proceeding when you are about to submit your application.
Even when you did why not wait till your absolute is out and also you said u got 3 months old wife isn't that illegal when you are still married to another woman.
About your work I don't think they are right if you are able to provide evidence that you have the right to retain your residence. Keep pushing for UKBA to send you a COA containing your rights to employment( might be difficult since your application is incomplete).
Maybe some top expect on here will shed more light into it for you. This is just my own understanding.
Take care and I hope it all works well for you.

[John2]

We seperated at the beginning of the year and since were trying to mediate which didn't work out and the other half petitioned for divorce. had to make the application without the absolute not to be time barred as my visa would have run out on 29th nov prior to the final decree.

its a 3 months old baby and a partner but we not married.
thanks for the advise re; how to progress in terms of work

[JESSIES]

you should get a support letter from a solicitor. I got my solicitor to write me a letter because my visa was expired. I managed to get a contract job, and my COA arrived 1 month after I started. Luckily for me my solicitor letter was sufficient and my employer did not ask for the COA.

[Kitty]

John2, you are still the "family member" of your Dutch national wife until the decree absolute is through.

If you have been in the UK with her for 5 years while she has been exercising treaty rights or had PR, then you should have acquired PR as well. You only need to rely on retaining a right of residence if you have not acquired PR before the date your divorce becomes final.

Is there a problem with the evidence of your wife's exercise of treaty rights, or evidence of your having resided here for 5 years?

If you have all the evidence available, then you will be able to appeal a refusal. I would suggest going the appeal route mainly because appeal hearings seem to be coming up within about 4 weeks of appeal at the moment, so it's a quicker route to a decision. You can also tell your employer that the matter is not conclusively decided.

If you have lost your job, how long were you employed for? You may have a case for unfair or wrongful dismissal, and possibly discrimination. Employers are allowed to dismiss employees if it would be illegal to continue to employ them, but they must make proper enquiries about the employee's status. Especially in the case of people with European rights of residence, legality is a question of fact, not just the employer's reasonable belief.

I suggest you take legal advice on both your immigration and employment law positions.

[John2]

hi Kitty,
thanks for the helpful advice.
There is actually no problems with our evidence on excercising the treaty as we did obtain records of the past 5 years employment history from HMRC which I submitted to HO, together with current payslip, proof of resident etc. I have also continously resident in the UK for the past 5 yrs too. she did not wish to apply for PR but as mentioned before we were married for 7yrs.

as i understand my application has not been refused but I was asked to submit the decree obsolute so i don't think i have reached the appeal stage yet.

My employer relied on the letter they got from employment helpline which said i cannot work unless i show proof, which I don't have without a COA. i did show them my application for PR though, and my solicitor spoke to them.

I was working with the employment agency since June 2011, and currently i feel they were unhelpful at my our of need. I will be speaking to a solicitor about this actually.

[Obie]

I believe they are wrong to request a Decree absolute.

As you have already resided for over five years and provided proof of this, then the application should proceed as if it is for a family member who has acquired a permanent Right of residence Under regulation 15

THIS PROVISION SHOULD BE USED

15.—(1) The following persons shall acquire the right to reside in the United Kingdom
permanently—

(b) a family member of an EEA national who is not himself an EEA national but who has
resided in the United Kingdom with the EEA national in accordance with these
Regulations for a continuous period of five years;

AS OPPOSED TO

(f) a person who—
(i) has resided in the United Kingdom in accordance with these Regulations for a
continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained the right of
residence.

You cannot qualify under 15(1f) beacuse at the end of your 5 years residence, you were a family member within the meaning of 15(1b) as opposed to 15(1f)

10.—(1) In these Regulations, “family member who has retained the right of residence” means,

(8) A person with a permanent right of residence under regulation 15 shall not become a family
member who has retained the right of residence on the death or departure from the United
Kingdom of the qualified person or the termination of the marriage or civil partnership, as the case
may be, and a family member who has retained the right of residence shall cease to have that
status on acquiring a permanent right of residence under regulation 15.

[Azhaar]

I believe they are wrong to request a Decree absolute.

As you have already resided for over five years and provided proof of this, then the application should proceed as if it is for a family member who has acquired a permanent Right of residence Under regulation 15

THIS PROVISION SHOULD BE USED

15.—(1) The following persons shall acquire the right to reside in the United Kingdom
permanently—

(b) a family member of an EEA national who is not himself an EEA national but who has
resided in the United Kingdom with the EEA national in accordance with these
Regulations for a continuous period of five years;

AS OPPOSED TO

(f) a person who—
(i) has resided in the United Kingdom in accordance with these Regulations for a
continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained the right of
residence.

You cannot qualify under 15(1f) beacuse at the end of your 5 years residence, you were a family member within the meaning of 15(1b) as opposed to 15(1f)

10.—(1) In these Regulations, “family member who has retained the right of residence” means,

(8) A person with a permanent right of residence under regulation 15 shall not become a family
member who has retained the right of residence on the death or departure from the United
Kingdom of the qualified person or the termination of the marriage or civil partnership, as the case
may be, and a family member who has retained the right of residence shall cease to have that
status on acquiring a permanent right of residence under regulation 15.

what about the passport of the EEA National they will still need it as there is no decree absolute..

mine is similar,,
my husband finished 5 years working and residing in the uk, after this i have applied for DIVORCE and divorce was finalised after my husband had already finished 5 years residing and working in the UK..

so is that mean they should give me Pr not on Retention of right..???

[Obie]

Provided you resided with your ex for 5 years, before the divorce was finalised, you should be able to Secure PR as opposed to retention of residence, if you can show you resided with him in the UK for 5 years.

The requirement to show your ex passport, especially in cases were they had previously seen it, is wrong, and a gross breach of ECJ Diatta Judgement.

I am aware of the fact they request this, but if OP can show other proof of wife's status or copy of passport and ID, and the fact they would have seen passport and ID before when the issued Residence card, then the failure to show now, should not result in refusal.

There is nowhere in the directive or EEA regulation, where it is stated that passport and ID of an estranged spouse should be provided, as far as i know, although i stand to be corrected.

[Kitty]

The only reason I can think of that they might ask for the decree absolute would be to confirm the date on which your marriage actually ended (so as to show within what period the 5 year qualification for PR as a family member must have happened). They are concerned that your marriage might have ended before you say it did, I suppose.

However, if you have provided them with evidence that your wife (and therefore you) had already acquired PR before divorce proceedings started (or before the decree nisi was issued), and have provided some indication of the divorce in the papers (e.g. the decree nisi), then the decree absolute should not be necessary.

[Azhaar]

Yes i guess so they can check how long marriage last..

funny enough my the marriage certificate I sent them was a replacement one that was issued again in 2010 as original got lost-- and on the issue date it gives the 2010 date..

but they have seen all documents before prior to issuing us with residence documents

[Jambo]

I think you need to separate the two issues:

Your application for PR confirmation was returned to you due to insufficient documents. Have you received the letter from the HO? I doubt it will say it has invalided your application/status. It is more likely to say some documents are missing and you should make a new application once you can provide those documents.
From your timeline, I'm guessing your case wasn't reviewed by a case worker and just didn't pass the initial screening for the supporting documents required (a mistake made by the HO).

As for the employment helpline, I would insist on getting their letter from the employment agency. I would be surprised if the employment hotline based their decision on the fact that your EEA4 application has not been accepted. Tell them you are planing to sue for compensation and unless you see the letter, you would assume they wrongfully terminated the contract.

[John2]

I think you need to separate the two issues:

Your application for PR confirmation was returned to you due to insufficient documents. Have you received the letter from the HO? I doubt it will say it has invalided your application/status. It is more likely to say some documents are missing and you should make a new application once you can provide those documents.
From your timeline, I'm guessing your case wasn't reviewed by a case worker and just didn't pass the initial screening for the supporting documents required (a mistake made by the HO).

As for the employment helpline, I would insist on getting their letter from the employment agency. I would be surprised if the employment hotline based their decision on the fact that your EEA4 application has not been accepted. Tell them you are planing to sue for compensation and unless you see the letter, you would assume they wrongfully terminated the contract.

Jambo and others wonder whether you can help?

I have not made any headway with my matter, despite all the actions I have taken so far i.e.
I resubmitted my application which HO recieved on 15th Dec together with the decree absolute as they had requested.
Since then I have been ringing them and explaining my situation but the call centre staff are either rude or keep telling me they cannot help and I should continue to wait for the COA as my application has not been validated.
Today I lost the remaining offer of a permanent job, of which the offer letter I had included with my application to HO.
Earlier in the week my landlady declined to renew my tenancy agreement which runs out end of this month, as she want to see an employement confirmation.
my lawyer keep telling me to wait to hear from HO and there is nothing he can do.
I wrote to my MP asking if he can help pushing HO to issue COA, he confirmed today to have written to UKBA CEO, asking they copy me into any correspondence.
My contract employer has repeatedly pushed employer helpline who as of yesterday continue to say I cannot work until the EEA department issue a COA confirming my right to work.
I emailed/faxed/sent a registered letter/complaint on Tuesday to HO pleading they consider my application as a priority/urgent under their chapter 10 guidelines, but i have not heard any feedback so far.

Is there anything anyone can assist or suggest, which I may have missed out, as my situation is now becoming dire?
Thanks all.