EEA1 confusion

[Guitartom]

Hi,

I am looking for some advice in relation to my wife working in the UK.

I am a British citizen having lived here all my life. My wife is Romanian. On arriving in this country she applied for and received a NI number. We were told at this point that we did not require any further documentation for my wife to obtain work.

My wife has now been offered 2 jobs and in both cases the employer has been advised by the uk border agency that she must have either BR1 or EEA1 documentation. We have been told that BR1 has a 6 month wait for it to come through and we not qualify for fast tracking as my wife does not require the form. This leaves EEA1 form. Having looked at this form I do not believe we can apply for it as it does not seem to be for spouses of British citizens but for family members of other eea states.

So can we apply for eea1 or is our only option the br1 form which will take too long to come through so my wife will lose the job opportunities? I would also point out that in 4 months all job restrictions are lifted on Romanians so it seems slightly pointless applying for a form which will take 6 months to come through.

[EUsmileWEallsmile]

This would appear to be the appropriate form.

http://www.ukba.homeoffice.gov.uk/sitec ... ormbr1.pdf

[Guitartom]

Thank you for your post.

Yes I am we'll aware that form BR1 is relevant to our situation however we have been informed that there is a 6 month wait for it to come through. The job will not be held for 6 months while we wait for this form. Furthermore we have been informed that we are not eligible to be fast tracked as my wife does not require this form because she is the spouse of a British citizen. So br1 is useless to us and in any case becomes redundant in 4 months when Romanians get full access to the uk job market.

[EUsmileWEallsmile]

@ Guitartom, where are you getting your information? I'm not doubting it, I just am not sure. I am not familiar with A2 applications. I know that your wife does not require a work permit (spouse of UK national), but she may require to evidence that to an employer - hence the certificate. If she requires the certificate and has a firm job offer, she would be entitled to expedite her application.

[Guitartom]

Hi, my information is coming from the border agency phone line, the eea helpline and from extensive correspondence by email with the bulrom team. I was told by the ukba that my wife does not require the documentation to be eligible to work in the uk however they advise all employers that she does require it. I was told by emails with bulrom that we are not eligible to have the br1 form expedited because she does not require it for eligibility. We seem to be stuck between a rock and a hard place. I have also been told by the eea team that we cannot apply for eea1 as it is not for people in our situation however we have been repeatedly asked for it. We have our marriage certificate and passports along with joint bank account statements etc to prove our marriage is genuine but because the ukba is advising employers that we must have eea1 or br1 documents these are not accepted.

[vinny]

Hi, my information is coming from the border agency phone line, the eea helpline and from extensive correspondence by email with the bulrom team. I was told by the ukba that my wife does not require the documentation to be eligible to work in the uk however they advise all employers that she does require it. I was told by emails with bulrom that we are not eligible to have the br1 form expedited because she does not require it for eligibility. We seem to be stuck between a rock and a hard place. I have also been told by the eea team that we cannot apply for eea1 as it is not for people in our situation however we have been repeatedly asked for it. We have our marriage certificate and passports along with joint bank account statements etc to prove our marriage is genuine but because the ukba is advising employers that we must have eea1 or br1 documents these are not accepted.

If you have the bold bits in writing from the UKBA, then you may show it to her employers.

[EUsmileWEallsmile]

Hi, my information is coming from the border agency phone line, the eea helpline and from extensive correspondence by email with the bulrom team. I was told by the ukba that my wife does not require the documentation to be eligible to work in the uk however they advise all employers that she does require it. I was told by emails with bulrom that we are not eligible to have the br1 form expedited because she does not require it for eligibility. We seem to be stuck between a rock and a hard place. I have also been told by the eea team that we cannot apply for eea1 as it is not for people in our situation however we have been repeatedly asked for it. We have our marriage certificate and passports along with joint bank account statements etc to prove our marriage is genuine but because the ukba is advising employers that we must have eea1 or br1 documents these are not accepted.

It is unfortunate that the helpline is less than helpful. By analogy, for family members of EU nationals (not A2, nor British), the directive 2004/38/ec gives them the right to work. Technically, they do not require to have a residence card (EEA2) to be able to work, but by the same token, employers are told they risk a fine if the employ such a person without said documentation.

Have you tried getting your MP involved?

[Guitartom]

I have asked the ukba repeatedly for their advice in writing. However they say that all the information is available on the web so they won't give me a letter. Unfortunately because the employers are told to get the br1 or eea1 documentation they will not accept the statement on ukba's website that my wife is eligible to work without restriction as the spouse of a uk national.

I have also had extensive correspondence with my MP who has been very nice and has assured us that she will bring it up in parliament with the relevant minister. That does not however help us in the immediate situation.

Thank you for your replies, I appreciate it.

[EUsmileWEallsmile]

You might consider keeping correspondence from employer, UKBA, etc, in the event that you may wish to sue the state for interference in your wife's right to work.

[vinny]

I have asked the ukba repeatedly for their advice in writing. However they say that all the information is available on the web so they won't give me a letter. Unfortunately because the employers are told to get the br1 or eea1 documentation they will not accept the statement on ukba's website that my wife is eligible to work without restriction as the spouse of a uk national.

They did not accept the following policy statement?

2.2 Exemption from the work authorisation requirement

Bulgarian and Romanian nationals are exempt from work authorisation requirements if:
...
• they are the family member of a non A2 EEA national exercising a Treaty Right in the United Kingdom, or the spouse, or civil partner of a British citizen or person with settlement in the United Kingdom.

[vinny]

Moreover, The Accession (Immigration and Worker Authorisation) Regulations 2006 is explicit:

(6) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is the spouse or civil partner of a national of the United Kingdom or of a person settled in the United Kingdom.

9. Contact

9.1 Clinton Nield at the Home Office Tel: 0208 760 8391 or e-mail:
Clinton.Nield2@homeoffice.gsi.gov.uk can answer any queries regarding the instrument.

Given the clear-cut legislation relating to your wife's entitlement to work, the Home Office should quickly confirm her rights to any employers. Else, file a complaint for incompetence and claim damages. cc to MP.

[Guitartom]

Again thank you for all your advice.

We have taken all these suggestions to my wife's potential employers. They have phoned the ukba repeatedly and fully understand the contradictory nature of the advice they are being given. They have said that they are now going to seek legal advice to find out the position they will be in should they employ my wife without the forms the ukba is insisting upon. We await their decision.

[EUsmileWEallsmile]

Please post back with an update. Please keep complaining.

[vinny]

The UKBA cannot insist upon documents to which she is exempt from obtaining.

The UKBA cannot insist upon optional non-mandatory documents.

[vinny]

To apply for a registration certificate, you should use application form BR1. You can download this form and a guidance document from the right side of this page.

Note that the word "should" is used. Not "must".

[Obie]

To apply for a registration certificate, you should use application form BR1. You can download this form and a guidance document from the right side of this page.

Note that the word "should" is used. Not "must".

I may well be wrong, but i think "should" is used in many context.

In this context, it seems to me to indicate a duty or condition imposed on a person.

It those circumstances, it is difficult, in my view, to distinguish between must and should, in this particular context.

If they had used "May", then one would have argued there is no mandatory obligation on an individual.

Whether they are justified in making this requirement, is another issue for debate.

[vinny]

Unfortunately, here's an example where "must" is used and it's probably wrong!

Instead, you must apply as a dependant under the relevant category of points-based system.

If a PBS dependant satisfies all the relevant requirements for FLR(M), then there are no grounds for refusal.

[Obie]

Interesting. I have always thought that "Must" "Ought" "Shall" "Should (past tense of Shall)" are all synonymous term. They seem to express some necessity or duty on a person, as opposed to "Could" , "May" "Might".

But perhaps my long held views are not in conformity with UKBA's views of things.

Then again, english language appears to be a very complex language, and words are used for various purposes.

I accept, you may well be correct Vinny. UKBA don't use a lot of synonyms.

They may well have a resaon for using these two words for different purposes.

[vinny]

Personally, I consider:

Must - mandatory
Should - preferable
May - optional.

[EUsmileWEallsmile]

I note that on one page of the UKBA site, it says

http://www.ukba.homeoffice.gov.uk/eucit ... iveworkuk/

You will need to apply for an accession worker card, which authorises you to work in the UK, unless:

you are exempt (see below)

This is an obligation (unless exempt).

On another part it says

If you are exempt from worker authorisation you can apply for a registration certificate confirming that there are no restrictions on you taking employment in the UK. You do not have to apply for a registration certificate (unless you are claiming to be exempt on the basis that you are highly skilled).

This would be in keeping with the UK's decision not to force EU nationals to apply for residence certificates in general.

[Obie]

I believe the law, as helpfully displayed by Vinny, without going into an exercise of semantics, is pretty clear.

An A2 national, whose spouse is a British National, is not subject to worker authorisation regulation.

This person can therefore apply under the EEA regulation 2006, as they are not the subject of the transitional provision. They are exempted from it.

This people can apply for EEA 1 if they so choose.

An employer, cannot refuse to take on these people if they provide a marriage certificate, showing they are married to a British National, and hence an exempt person.

I agree, not because of the language UKBA uses, but based on the legislative provision itself, that applying for EEA1, which is the correct application in these circumstances, is not mandatory

[Your Europe]

Hi Guitartom, I suggest that you look on the youreurope website.

http://europa.eu/youreurope/citizens/wo ... dex_en.htm

As you mentioned, Romanians will be free to work in the UK from January 1st 2014. Before then you can try calling the relevant public employment services to find an answer to your question.[/url]

[Guitartom]

Good news!

After seeking legal advice the employer has now accepted my wife's right to work in the UK and asked when she can start. Thank you for all your advice and help. We are both very happy!

[minervae2007]

Hi, I am a American/Romanian citizen married to a Irish/British citizen, and we are moving back to the UK at the end of this month after living in the USA for over 20years. My husband will be staying in the UK to get a job and sort things out for us but I have to return to the USA until I get my Romanian passport renewed, and then join him in the UK.
Do I have to do this whole separation that will last for many months or can I just stay there with him with my valid American passport and my expired Romanian passport and then get a new Romanian passport or ID and not be illegal in the UK without applying for any Spouse Visa or family permit? can anyone tell me if this is possible and how to do it? Also, do I need some sort of work permit or because I am married to a UK citizen I am exempt? what is this fee of 55pound for that everyone is talking about?