EEA FM VS ILR Parent

[hayagnar]

Hello,

My situation might not be unique, but it does not seem to come up in any search. A brief history...
I am South African, my ex-wife is an EU citizen. Daughter was born in 2002. We married in 2003. Lived in SA until 2008. Moved to the UK in 2008. My son was born in 2009.
I submitted an Permanent Residence application in May 2014. It was rejected. The appeal was also not successful. Reason: My ex, midway through the application left me and then withdrew her sponsorship and requested all of her documentation, so the caseworker could not verify if my ex was exercising treaty rights.

The appeal was heard in October 2015. Subsequent to then, I was informed that I could apply for the ILR as a parent route, due to my daughter being in education in the UK for the last 7 years.
2 Issues:
1) The UKBA has my passport, so I cannot satisfy the English language requirement(My qualifications are not recognised by UK Naric). I have written to the UKBA, they are willing to send a certified copy to the college directly, but the college won't accept that!
2) My ex refuses to give me copies of the childrens birth certficates

Additionally, I have the following:
a) Letters from children's schools
b) Passed the Life in the UK test.

I am awaiting a reply to my letter to UKBA about the fact that the colleges wont accept their offer to post the copy of my passport directly to them.
However, in the interim, I have been reading posts on here and discovered the EEA FM (Right of Residence). It seems I qualify under that criteria, however it would, I assume, add another 5 years before I can apply for PR.

My question...
Is it possible to go down the EEA FM route and then send a subsequent application prior to the 5 year qualifying period?

Many thanks for taking the time to read this long post!

[noajthan]

Hello,

My situation might not be unique, but it does not seem to come up in any search. A brief history...
I am South African, my ex-wife is an EU citizen. Daughter was born in 2002. We married in 2003. Lived in SA until 2008. Moved to the UK in 2008. My son was born in 2009.
I submitted an Permanent Residence application in May 2014. It was rejected. The appeal was also not successful. Reason: My ex, midway through the application left me and then withdrew her sponsorship and requested all of her documentation, so the caseworker could not verify if my ex was exercising treaty rights.

...

Many thanks for taking the time to read this long post!

I will answer your question with 2 questions, if I may.

Q1) Why are you unable to get official copies of children's birth certificates?

Q2) Regarding PR, it may be you have acquired PR already during a 5-year period within 2008-2014.
I understand your challenge is in proving this.

Here is HO guidance related to RoR cases where there is lack of evidence & the measures HO can take:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- see page 31+

RoR is not PR but, by extension, it should be possible for the HO to employ the same evidence-gathering techniques.
Is it not worth exploring if you can submit another application for confirmation of PR & encourage HO to make their own enquiries?

Doimng so should not really impede your other applications & you only have some time/effort & a fee of £65 or so to lose.

Good luck.

[noajthan]

If you do decide look again at an application for confirmation of PR, you could also ask HO/UKVI to exercise their right under Section 40 of the UK Borders Act, 2007 to check for the relevant & necessary evidence related to your ex-wife.

It may be that your representative's at your recent PR-related appeal did not press hard enough...

If UK Border Agency is directed by an Immigration Judge to contact another government department to obtain evidence on the exercise of Treaty rights, the Agency will comply with this in all cases.

In such circumstances, however, UKBA would hope and expect that the Tribunal would not make directions where the applicant has not even attempted to obtain this information themselves.

Ref: https://www.freemovement.org.uk/evidenc ... nce-cases/

This could well be the shortest way for you to acquire settled status (PR).
Best of luck.

[hayagnar]

Hi, See my comments below:


I will answer your question with 2 questions, if I may.

Q1) Why are you unable to get official copies of children's birth certificates? Apologies, I meant passports. The children have EU passports, I have their birth certificates. I am off the opinion that both are required?

Q2) Regarding PR, it may be you have acquired PR already during a 5-year period within 2008-2014.
I understand your challenge is in proving this. My ex was self-employed and the UKBA felt that since her income was not consistent, stated that she was not exercising treaty rights, besides once she removed her sponsorship she requested all info be sent to her.

Here is HO guidance related to RoR cases where there is lack of evidence & the measures HO can take:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- see page 31+

RoR is not PR but, by extension, it should be possible for the HO to employ the same evidence-gathering techniques.
Is it not worth exploring if you can submit another application for confirmation of PR & encourage HO to make their own enquiries?

Doimng so should not really impede your other applications & you only have some time/effort & a fee of £65 or so to lose.

Good luck.[/quote]

[noajthan]

Hi, See my comments below:

I will answer your question with 2 questions, if I may.

Q1) Why are you unable to get official copies of children's birth certificates? Apologies, I meant passports. The children have EU passports, I have their birth certificates. I am off the opinion that both are required?

Q2) Regarding PR, it may be you have acquired PR already during a 5-year period within 2008-2014.
I understand your challenge is in proving this. My ex was self-employed and the UKBA felt that since her income was not consistent, stated that she was not exercising treaty rights, besides once she removed her sponsorship she requested all info be sent to her.

Do the children live with you? (Otherwise what is the purpose of requiring their passports/bcs?)

Even for an EEA FM application or an EEA derivative rights of residence type of application you would need details of (or from) your ex-wife.

As the guidance & article above) makes clear there are ways of getting this.
An application for confirmation of PR would be better than an application for derivative rights (that cannot lead to PR).

Back in 2008 HO was not applying 'minimum income threshold' income tests based on the somewhat controversial use of HMRC PET criteria;
that really does not seem a reasonable basis for failing an application based on treaty rights in 2008-2014.

[hayagnar]

My children do not live with me, but I have them every alternate weekend and 2 days a week. I had to go to court to get that. I was off the opinion that it is a requirement for the application ILR Parent route?

On the EEA FM form, I have noticed that I am required to show the my ex is exercising treaty right currently, but I aim to submit the court order, with a cover letter, highlighting the fact the the relationship has broken down completely.

One of the reasons she withdrew her sponsorship was an attempt to remove me from the country.

So which form would I use for an application for confirmation of PR?

Many thanks...I must say that this forum has been remarkably helpful, in the last few hours, than all my research over the last month or so!

Thanks again!
Its really appreciated.

[noajthan]

My children do not live with me, but I have them every alternate weekend and 2 days a week. I had to go to court to get that. I was off the opinion that it is a requirement for the application ILR Parent route?

On the EEA FM form, I have noticed that I am required to show the my ex is exercising treaty right currently, but I aim to submit the court order, with a cover letter, highlighting the fact the the relationship has broken down completely.

One of the reasons she withdrew her sponsorship was an attempt to remove me from the country.

So which form would I use for an application for confirmation of PR?

Many thanks...I must say that this forum has been remarkably helpful, in the last few hours, than all my research over the last month or so!

Thanks again!
Its really appreciated.

Sympathies for a difficult and trying situation.
I don't really know about ILR and children in these circumstances but there are sure to be able & willing members who do.

Back to EU rules..
Applying for confirmation of PR (that you may have acquired automatically already) will give you settled status.
That would put you in a good position to shoot for privilege of citizenship if you have such ambitions.
So PR is much better than EEA FM which just gives you a RC.
Don't get hopes too high too soon though as you clearly have some hurdles to cross.

Here is the current form for application for confirmation of PR:
https://www.gov.uk/government/publicati ... orm-eea-pr

Note it is a monster (a generic form, covers many scenarios)

Cynics would say HO have designed it partly to put people off - I couldn't possibly comment.

Do be aware it's not a legal requirement to use the latest form;
eg if you want to use an earlier version (from Gov UK archive website) that would be acceptable;
- or even a free form letter can be submitted if it contains all appropriate information.

Probably best bet would be to start by printing off relevant parts of the current form & have a go filling it in; see how it shapes up.

Check the accompanying guidance notes to see what supporting docs are required.
- that way you can gauge what may be missing.

Suggest you will then need to draft a cogent supporting letter detailing your special circumstances (acrimonious &/or estranged ex-wife, lost or poor contact, etc etc) & invoking or encouraging HO to use their 'search powers' to gather the missing evidence.

If you have court orders / court letters they will help.
You would have to do all this for EEA FM anyway so why not do same but shoot for PR.

If ex-wife was self-employed there must be tax records on file somewhere.
Other elements required: you may have proof of your marriage &/or her identity &/or her residency in UK (as well as all of your own).

And, as mentioned, I don't think HO can disregard your sponsor (ex-wife's) income level if they use the criteria in place back in 2008 - suggest making a case on that basis.

Backup plan (always good to have an 'out'):
If all this fails & it comes to an appeal (again) you can, this time, invoke the UK Borders Act;
such that the judge orders HO to make the relevant enquiries for missing evidence on your behalf.

[vinny]

It's unlikely that you qualify for ILR as a parent, as you don't have leave to remain in that category for the required period.

You fail the Immigration status requirement, E-LTRPT.3.1, and consequently fail

The applicant must have completed a continuous period of at least 60 months with limited leave as a parent under paragraph R-LTRPT.1.1.(a) to (c) or in the UK with entry clearance as a parent under paragraph D-ECPT.1.1.; or a continuous period of at least 120 months with limited leave as a parent, under paragraphs R-LTRPT.1.1(a), (b) and (d) or in the UK with entry clearance as a parent under paragraph D-ECPT.1.1.; or a continuous period of at least 120 months with limited leave as a parent under a combination of these paragraphs.

[vinny]

Moreover, the UKVI and the Tribunal had or have powers to assist you in determining whether your ex-wife was exercising treaty rights.