Hypothetical situation

[CitizenKane]

Let’s say the husband of an EU citizen receives an EEA Family Permit (six months) and moves to the UK. The EU wife begins full-time employment in the UK almost immediately and her non-EEA husband applies for a UK Residence Card.

What measures can be taken if the EEA Family Permit is extremely close to its expiry date and the UK Residence Card has yet to be issued? Is there a way to extend the duration of the EEA Family Permit before it becomes invalid? If not, what remedy would bridge the gap until the residence card is received?

[Plum70]

An EEA Family permit is entry clearance obtained outside the UK and cannot be extended from within the UK.

Once you apply for a RC using form EEA2 a certificate of application should immediately (realistically in about 2 wks or so) confirming your application and rights of residence in the UK while the app is being processed.

This COA may be used as proof of your rights to reside and work in the UK (but some establishments may be unwilling to accept this).

[CitizenKane]

Okay, thanks.

If the non-EEA husband is already legally working in the UK under the EEA Family Permit and shortly thereafter is in receipt of the COA could any problem arise if the RC is not issued before the family permit ends? I guess I'm wondering if an employer would make issue with one of its non-EEA employees not having a valid family permit or a residence card either. Or am I overthinking this?

[vinny]

After entry to the UK the holder can apply to the Home Office for a residence card. A residence card (an endorsement in the holder's passport) enables the holder to re-enter the UK without the need for an EEA family permit for as long as they are the family member of an EEA national with a right of residence in the UK. A residence card, which is normally valid for five years, is simply a confirmation of the holder's right of residence in the UK - it is not a compulsory requirement.

[CitizenKane]

"A residence card, which is normally valid for five years, is simply a confirmation of the holder's right of residence in the UK - it is not a compulsory requirement."

Okay, so it sounds like any delay in receiving a residence card isn't going to affect my employment situtation as an non-EEA worker. My wife is an Irish citizen. I had mistakenly believed the RC was required for permission to reside and work in the UK after the six months of the EEA Family Permit had elapsed.

[CitizenKane]

I lifted this from Wikipedia. Does this sound accurate?

"By far the biggest implementation issue is the long processing time for the issue of residence cards (EEA2 applications). This can take 6 months or longer (current processing times as at January 2009 are up to a year according to the web site). During this time it is very difficult for the family member to start working, to open a bank account, to register with a doctor or to travel. This issue is created and aggravated by a combination of several seemingly harmless infringements. These infringements are:

The initial visa (EEA family permit) is valid for only 6 months (reduced in 2006 from previously 12 months).

The processing of the EEA2 application (which is required to be completed within 6 months) often takes longer than 6 months.

During this time the passport of both the EEA citizen and the family member is held by the Home Office."

[Ben]

I had mistakenly believed the RC was required for permission to reside and work in the UK after the six months of the EEA Family Permit had elapsed.

On the contrary, no permission must be sought in order for an EEA national and his family members to reside and work in the UK.

Applications for an EEA Family Permit / Residence Card are voluntary (though each can be useful in it's own way).

[CitizenKane]

Okay, that's the answer I was looking for!

But, what necessary documents must to be provided to the employer to prove a non-EEA person is legal to work in the UK? Is the COA sufficient proof until the RC arrives? And if acquiring a residence card is voluntary, what then would be the alternate way to be allowed employment if one does not apply for an RC?

[Ben]

Okay, that's the answer I was looking for!

But, what necessary documents must to be provided to the employer to prove a non-EEA person is legal to work in the UK? Is the COA sufficient proof until the RC arrives? And if acquiring a residence card is voluntary, what then would be the alternate way to be allowed employment if one does not apply for an RC?

In the absence of a Residence Card or other government issued document, it really depends on how knowledgeable the employer is, in respect of EC law.

I would suggest the following documents:

• Copy of Directive 2004/38/EC.
• Copy of The Immigration (European Economic Area) Regulations 2006.
• Proof that the non-EEA national is a family member of the EEA national who is described in either Article 2(2) or in Article 3(2) of the Directive.
• Proof that the EEA national is resident in the UK in accordance with the Directive.

With the above, proof of entitlement to reside and work in the UK is almost absolute.

[CitizenKane]

Wow, that was fast and much appreciated. Many thanks!

[BLK235]

Your Certificate of Application (COA) should mention that whilst your application is under consideration it should be taken that you have the same rights as under your EEA FP. This is the easiest way to prove that you have right to work in the UK.

As been pointed out by many neither EEA FP nor RC grants you any rights but only confirms them.

COA normally says that it is expected that RC card will be issued within 6 months.

UKBA also operates employment eligibility confirmation service (might be called slightly different) whereas employer faxes them your details and UKBA confirms your right of work - this would be last resort.

Information from wikipedia is out of date. Yes, between Mar 08 and June 09 it was very rare when RC would be issued within 6 months and normally would take up to a year or more.

From what people say on forums now UKBA got their act together and applications lodged after June 09 are processed speedily (within couple of months).

[CitizenKane]

"... employer faxes them your details and UKBA confirms your right of work - this would be last resort."

That's also what I was looking for!

"Information from wikipedia is out of date. Yes, between Mar 08 and June 09 it was very rare when RC would be issued within 6 months and normally would take up to a year or more."

Thanks, I appreciate the clarification.

[thsths]

In the absence of a Residence Card or other government issued document, it really depends on how knowledgeable the employer is, in respect of EC law.

The employer is usually not concerned with EC law, but with the UK situation. And according to that the employer needs the Residence Card or a Certificate of Application to achieve indemnity against employment of illegal workers.

Theoretically the employer has no reason to refuse you even without these documents, and doing so would be unfair discrimination. But practically you have to feel with the employer: a fine of 25000 GBP or so it at stake for employing without those documents.

So in effect the government is bullying employers into discriminating against non-EEA partners without a Residence Card. Sad but true.

[CitizenKane]

"But practically you have to feel with the employer: a fine of 25000 GBP or so it at stake for employing without those documents."

Understood, thanks for educating me. I will definitely play it safe by applying for an RC as early as possible. (I just wanted a Plan B if things didn't go to plan.) As an American I know I will be a guest in the country and wouldn't want to take a chance on jeopardizing my employment status.