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We moved to the UK nearly three months ago. I'm Mexican and my wife is German. She just started working in a full time job and I'm about to apply for my residence card. The Home Office says that in the application as a qualified person the EU national should provide proof of employment (we have her contract and will ask her employer to produce a letter as well) plus proof of her income, that is bank statements for the last three months (or the full period in which she has been working if less than three months). We are waiting for her to receive her first salary in order to apply. I worry that the HO will produce a COA with no right to work for myself because she will only have been employed for one month when we apply. I have a job offer and don't want to wait longer to apply. Would it then be ok to apply with evidence of one month of work? Many thanks.

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According to the PDF document An employer’s guide to acceptable right to work documents, the criterion determining whether a certificate of application permits work is the relationship between the non-EEA applicant and the EEA principal. The quality of the evidence showing that the EEA principal is qualified does not come into play.

Certificates of Application

Certificates of Application are issued to non EEA family members of EEA nationals who have applied for a Residence Card or Derivative Residence Card. From 6 April 2015, an application for such a card will only be considered valid at the point at which the applicant successfully enrols their biometric information (finger scans and a digital photograph). Applicants will continue to receive an initial acknowledgement letter which will not demonstrate a right to work.

Where the application is made by a direct family member, who has successfully enrolled their biometrics and provided the correct supporting documents, the applicant will be issued with a Certificate of Application which states that the individual has a right to work in the UK whilst their application for a Residence Card or Derivative Residence Card is being considered. This Certificate of Application will only demonstrate the right to work if it is less than six months old and is accompanied by a Positive Verification Notice issued by the Home Office’s Employer Checking Service stating that the holder has permission to do the work in question. The excuse will last for six months from the date of the Positive Verification Notice.

If you are presented with a Certificate of Application that does not state that work is permitted, this will not demonstrate a right to work and the Employer Checking Service will provide a Negative Verification Notice.

Because you are a spouse, you are a direct family member, so you should expect a CoA that permits work.

(I would add that the UK is violating the EU directive by asking for proof of her income. If you proceed without supplying proof of income, however, you'll almost certainly end up having to take the UK to court, so you probably want to provide it anyway. But you might just apply before she receives her first pay, noting that "the full period in which she has been working" includes no pay.)

  • Thanks for the reply. I asked because a few weeks after arriving while my wife was still looking for work we applied (as jobseeker) and I got a CoA with no right to work stating that I didn't provide evidence of my sponsor exercising treaty rights. I then withdrew that application and waited for her to have a job to apply again. Thanks again. – Eric Gomez Sep 13 '18 at 16:19
  • @EricGomez well then I suppose there's a threshold that I do not know about. In fact, by being a jobseeker, your wife was exercising treaty rights, but if you didn't provide evidence that she was a jobseeker then the CoA was correct, and they perhaps should have refused the residence card outright. On the other hand, if they were to assert that you were ineligible for either of those at the time because your wife was not employed, that would be contrary to the directive. – phoog Sep 13 '18 at 16:32
  • Thanks for the reply. We did provide evidence such as emails of invites to interviews from different companies (which is what the guidance indicates). I also think being a job seeker in itself is exercising treaty rights... – Eric Gomez Sep 13 '18 at 17:45
  • @EricGomez looking at the application, I saw that the UK appears to interpret a qualified jobseeker as someone who was formerly qualified and has remained in the UK as a jobseeker. I don't think that agrees with the directive, as with many of their interpretations. For example, the details of the employer verification requirement for non-EEA family members are themselves rather questionable. But, with Brexit looming, it's unlikely that any of this will ever make it to court, so the only option really is just to play along if possible. Fortunately, it seems to be in your case. Good luck! – phoog Sep 13 '18 at 19:31

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