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Employment tribunal bites off more than it can chew in right to work case
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Employment tribunal bites off more than it can chew in right to work case

Afzal v East London Pizza Ltd (t/a Dominos Pizza) (Rev 1) [2018] UKEAT 0265_17_1304 is a decision of the Employment Appeal Tribunal. It touches on the vexed issue of an employee continuing to work while awaiting a decision from the Home Office on an immigration application. From an immigration law perspective, none of the parties cover themselves in glory in this case. I do, however, think that says more about the complexity of the immigration regime, and employers’ fear of the punitive “hostile environment” (£20,000 fine anyone?) rather than being a reflection on the parties, lawyers or judges.

Unlawfully dismissed for not providing proof of attempt to renew immigration status

The claimant, Mr Afzal, was employed by Domino’s. His immigration status document (which, although not specified in the judgment, must have been an EEA Residence Card) was due to expire on 12 August 2016. On 3 June and 15 July 2016, a Domino’s HR manager contacted Mr Afzal to ask that proof of an application for a new immigration document be provided by 11 August 2016. No proof was provided until an email sent just before close of business on 12 August 2016 with an attachment that would not open.

Mr Afzal was dismissed and offered no right of appeal against his dismissal. Some time later, when Mr Afzal was able to provide evidence that an application had been submitted, he was offered a position again, but a lesser one than he previously held.

The Employment Appeal Tribunal found this dismissal without right of appeal to be unlawful. The employer ought to have afforded a right of appeal which, if successful, would have resulted in the dismissal being rescinded and the employee reinstated. I would encourage anyone looking for a more detailed analysis of the employment law implications of this case to read Ben Amunwa’s write-up at over Law, Mostly (thanks to Ben for bringing this case to our attention in the first place).

Judgment riddled with immigration law errors

Only three paragraphs into the judgment it becomes apparent that those involved in the case neither had any knowledge of immigration law nor appeared to have sought to obtain that knowledge. Spot the errors:

The Claimant is from Pakistan. In 2011 he was married to a European national. He acquired time-limited leave to work in the UK, which expired on 12 August 2016. After that time, having been a permanent resident for five years, he had a right to apply for a document evidencing his right to permanent residence that would continue his right to work.

Mr Afzal did not acquire “time-limited leave to work in the UK” at any stage. Rather, he acquired a document which evidenced his right to work in the UK so long as he remained the direct family member of an EEA national who was exercising treaty rights in the UK. Mr Afzal was not a permanent resident for five years. Under European law, permanent residence is acquired by a non-EEA national such as Mr Afzal after spending five years in the UK as the direct family member of an EEA national who has exercised treaty rights during that five-year period. Both technical points, neither the most egregious of errors, but certainly a warning light for things to come.

The judge continues:

He could not apply before 15 July. So long as he applied by the expiry of the current leave, he was entitled to work while it was considered.

The final sentence above is simply incorrect. It wrongly maps a correct understanding of the operation of section 3C of the Immigration Act 1971 onto the realms of European treaty rights. Unlike applications made by those subject to immigration control under the 1971 Act, applications made in the context of European treaty rights do not engage section 3C. If in any doubt, the position on section 3C leave is further confirmed, albeit in the usual out-of-date fashion, in the Home Office’s guidance on section 3C:

Section 3C does not extend leave where an application is made for a residence card under the EEA Regulations Immigration (European Economic Area) Regulations 2006. [This was clearly drafted before the 2016 version of the EEA Regulations came in to force.] An application for a residence card is not an application to extend or vary leave, it seeks confirmation that rights under the EEA Regulations are being exercised therefore the applicant does not require leave to enter or remain.

This misapprehension and misplaced focus on whether an “in-time” application had been made flows through the rest of the court’s judgment.

What should the employee have provided and what should the employer have done?

This is where I sit on the fence and refuse to climb down. I have acted both for employees and for employers in cases involving very similar facts to Mr Afzal’s and my advice differs depending on who I am advising!

Acting for the employee, I will know their immigration history inside out, as well as the content of any application made. If the employee has applied for an EEA permanent residence card, I will be able to say with relative certainty whether or not they have acquired this right as a matter of law, and if so, on what date. I can happily provide all of that information to the employer and unequivocally assert their right to work in the UK.

Acting for the employer, unless given sight of the full application and equipped with the technical knowledge to assess the application and prejudge what a Home Office caseworker might make of it, I would be much more hesitant to recommend allowing the employee to continue working. As section 3C does not operate in EEA applications, a lot more than evidence of mere submission of an application would be needed to satisfy me that the employee continued to enjoy a right to work: spouse’s ID card or passport, marriage certificate, and up-to-date evidence that the spouse is exercising treaty rights at minimum. (I fully recognise this does not encapsulate all circumstances in which a non-EEA national can assert a right to reside under the EEA Regulations.) This is often too much to ask for and I have come across very hostile immigration lawyers acting for the employee refusing to provide any evidence of anything and repeatedly yelling “section 3C” at me.

So what’s the solution?

Well, the Home Office do issue certificates of application (“COA”) to non-EEA nationals who have made a valid application under the EEA Regulations. A COA will generally confirm receipt of the application and offer an employer a statutory excuse against any illegal working penalty for six months from the date of issue.

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I encourage all non-EEA national employees who will be relying on EEA rights to make their applications as early as possible, and ideally in time for a COA to arrive. This can mean a good month or more before their residence card is due to expire, as they must enrol biometrics before a COA arrives. The COA can then be given to the employer along with an explanation of what application has been made and when. The employer can then rest easy for the next six months. If no decision has been made on the application by then, another COA can be requested.

Waiting in the hope of a COA plopping through the postbox is not ideal however. What we really need is a well-informed, error-free, responsive and co-operative Employer Checking Service, a simplified and streamlined framework of immigration legislation and much clearer guidelines for employers (and their legal advisers) on how to treat non-EEA national employees who have applied for a new residence card. Or we could just wait until after Brexit when all of this may become moot.

 

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