The Immigration (European Economic Area) Regulations define a “family member” (a spouse, civil partner or a direct dependant relative of either EEA national or her/his spouse, a child or parent) and impose an obligation that “an EEA family permit issued under this regulation must be issued free of charge and as soon as possible” (Regulation 12(6) of the Regulations). Nevertheless, there are grey areas in the Regulations, which may affect the day-to-day lives and activities of family members residing in the UK with their EEA partners, children and parents.
Case Example (names have been altered)
Simon is a direct family member whose 5-year residence card expired in May 2016. He did not apply for his EEA (Permanent Residence) card (“EEA(PR)”) until July 2016 and was forced to leave his employment shortly after. The reason for that was that his employer was not convinced that Simon had a right to work until he obtained his permanent residence card. Upon contacting the Home Office, Simon received the following response: "The person in such a situation has a right to reside but not the right to work during the time in which he did not apply for his EEA(PR)". It is clear that the Home Office referred to the period between the expiry of the residence card and the application date. And even if immigration solicitors advised employers differently, Simon has lost his employment.
According to Regulation 21 of the EEA Regulations that describes the procedure for applications for issue or renewal of family members’ residence card, the applicant must be in the UK. It does not, however, address explicitly applicants’ rights during the process. Therefore, the question remains: do applicants like Simon have a legal right to reside and work in the UK after the expiration of their residence card?
The answer is straightforward: Simon has the right to reside and work as long his EEA national sponsor remains a “qualified person” in the UK and the relationship is subsisting. Normally, the Certificate of Application (if the applicant had made an application either for a new residence card or for EEA(PR)) confirms these rights to stay and work in the UK and relays this information for the benefit of a current or prospective employer. It is important to bear in mind, however, that such a Certificate of Application is issued after the submission of biometrical data; this data within up to two months after the application submission. Hence a considerable delay in the confirmation of rights of the applicant in writing. And as Simon testifies, regardless of the immigration advice and the confirmation of his right to work, his employers stood by their decision to discontinue his employment.
To avoid the difficult situation Simon found himself in, it is advisable to apply in advance in order to receive the Certificate of Application and thus have a confirmation of the rights to stay and work in the UK.