Residence Card (EEA2) Application Refused - Advice Needed

[mradam]

Hello everyone,

I'm looking for some advice regarding my wife's Residence Card, which has been refused by the Home Office.

I am a French National, 36 years old and I am resident in the UK; I came to the UK back in 1990 when I was a child, about 10 years old and have been here ever since - so that's about 26 years I've been in the UK in the UK.

My wife is a Non-EEA National and she is currently living here with me in the UK, she came here on the basis of an EEA Family Permit.

We applied for a Residence Card for her soon after she arrived but now the Home Office have rejected the application.

The Home Office gave the following reasons for refusal:

- "...your EEA family member has failed to provide evidence that they are a qualified person as set out in Regulation 6 of the Immigration (EEA) Regulations 2006"

"It is noted that during the period your sponsor has been in the UK he has provided proof of residency but when your sponsor was a student no evidence of comprehensive medical insurance has been provided, therefore this department cannot see an entitlement for permanent residence for your sponsor other than he has been ever present in the United Kingdom"

- "This department cannot be certain what treaty rights your sponsor has been exercising...The burden of proof rests with the applicant to provide evidence and you have failed to do so."


Later on in the letter it goes on to say (in a somewhat threatening tone):
"As you appear to have no alternative basis of stay in the UK you should now make arrangements to leave. If you fail to make a voluntary departure, a separate decision may be made at a later date to enforce your removal from the UK"


In the application I stated that I was applying as a Permanent Resident as I have been here for 26 years, as opposed to applying as a qualified person.

In my application I have provided documents as proof of my residency from about 1995 when I had some school certificates in my name and also a letter from the doctor's surgery to prove that I have been registered since 1995. Then I also provided proof or university attendance, GCSE and A-Level certificates, bank statements from when I opened my first account (one statement per year until present), my mortgage statements, gas and electricity bills, payslips when I was working.

I even remember when I went to university I was told I would be treated as a 'home student' as I was a permanent resident here.

I was of the understanding that you automatically achieve Permanent Resident status after living here for 5 years or more. I don't understand why they would refuse to accept my Permanent Resident status.

I have a feeling they want me to show how I achieved Permanent Resident status in my first 5 years here - whether as a Jobseeker / Worker / Self-Employed / Self-Sufficient / Student - but I was only a child back then and I all I did was go to school - and I have no idea about whether I had Comprehensive Sickness Insurance (my father passed away many years ago so I have no idea)


So here are my questions:

I am now unsure as to how to proceed - do I make a fresh new application? Would that entail waiting another 6 months? What other documents could I possibly provide?

Or do I appeal? and on what basis? If I opt for a hearing are they more likely to be understanding if I explain my situation face to face?

(Also incase it matters I'm currently unemployed since I was made redundant a couple of years ago so just scraping by with savings and family's help)

Also they haven't given any timescales when the application or appeal should be submitted - does anyone know what the time limits are?

Is deportation really a possibility for my wife? I am an EEA Citizen, by being my being my wife, is she not afforded the same rights for residency?

Also they have kept her passport, why is that? They only said that they've 'retained' her document but gave no reason for it.

Thanks again for reading this long post and I would be grateful for any advice of tips on how to proceed.

[member]

Hello everyone,

I'm looking for some advice regarding my wife's Residence Card, which has been refused by the Home Office.

I am a French National, 36 years old and I am resident in the UK; I came to the UK back in 1990 when I was a child, about 10 years old and have been here ever since - so that's about 26 years I've been in the UK in the UK.

My wife is a Non-EEA National and she is currently living here with me in the UK, she came here on the basis of an EEA Family Permit.

We applied for a Residence Card for her soon after she arrived but now the Home Office have rejected the application.

The Home Office gave the following reasons for refusal:

- "...your EEA family member has failed to provide evidence that they are a qualified person as set out in Regulation 6 of the Immigration (EEA) Regulations 2006"

"It is noted that during the period your sponsor has been in the UK he has provided proof of residency but when your sponsor was a student no evidence of comprehensive medical insurance has been provided, therefore this department cannot see an entitlement for permanent residence for your sponsor other than he has been ever present in the United Kingdom"

- "This department cannot be certain what treaty rights your sponsor has been exercising...The burden of proof rests with the applicant to provide evidence and you have failed to do so."


Later on in the letter it goes on to say (in a somewhat threatening tone):
"As you appear to have no alternative basis of stay in the UK you should now make arrangements to leave. If you fail to make a voluntary departure, a separate decision may be made at a later date to enforce your removal from the UK"


In the application I stated that I was applying as a Permanent Resident as I have been here for 26 years, as opposed to applying as a qualified person.

In my application I have provided documents as proof of my residency from about 1995 when I had some school certificates in my name and also a letter from the doctor's surgery to prove that I have been registered since 1995. Then I also provided proof or university attendance, GCSE and A-Level certificates, bank statements from when I opened my first account (one statement per year until present), my mortgage statements, gas and electricity bills, payslips when I was working.

I even remember when I went to university I was told I would be treated as a 'home student' as I was a permanent resident here.

I was of the understanding that you automatically achieve Permanent Resident status after living here for 5 years or more. I don't understand why they would refuse to accept my Permanent Resident status.

I have a feeling they want me to show how I achieved Permanent Resident status in my first 5 years here - whether as a Jobseeker / Worker / Self-Employed / Self-Sufficient / Student - but I was only a child back then and I all I did was go to school - and I have no idea about whether I had Comprehensive Sickness Insurance (my father passed away many years ago so I have no idea)


So here are my questions:

I am now unsure as to how to proceed - do I make a fresh new application? Would that entail waiting another 6 months? What other documents could I possibly provide?

Or do I appeal? and on what basis? If I opt for a hearing are they more likely to be understanding if I explain my situation face to face?

(Also incase it matters I'm currently unemployed since I was made redundant a couple of years ago so just scraping by with savings and family's help)

Also they haven't given any timescales when the application or appeal should be submitted - does anyone know what the time limits are?

Is deportation really a possibility for my wife? I am an EEA Citizen, by being my being my wife, is she not afforded the same rights for residency?

Also they have kept her passport, why is that? They only said that they've 'retained' her document but gave no reason for it.

Thanks again for reading this long post and I would be grateful for any advice of tips on how to proceed.

When did you apply for PR in the UK?

[noajthan]

You must have acquired PR one way or another by now.
As you have discovered just living in UK is not enough. And just stating you have PR is not enough.
Its just a case of collating good if not unimpeachable documentary supporting evidence of your activities as a qualified person in UK and proving it.

Do you have your original passport used to enter UK? you may have been granted ILR on entry (under old rules).
If so, no need for PR as you would be settled already (with ILR).

You did not need CSI as a minor ('child in education'); I assume your parent/s were your sponsor at that time.
You could have acquired PR via them if they were working, studying, self-employed in UK. Were they?

Failing that its all about your activities after age 18.
When you were a student did you have a foreign-issued EHIC or a UK-issued RC card?
That would substitute for holding CSI & allow your student period to count towards PR.

If not, what has been your activities and your timeline in UK since then?

As long as you are exercising treaty rights now (or can show you have PR) your wife cannot be deported.

[mradam]

Thanks for the replies.

In response to the questions:

- I have never applied for Permanent Residency in my 26 years here, I assumed as I arrived as a child, I automatically received residency after 5 years, and its never something that I ever needed, or was aware of, until I married my non-EEA wife

- I have my old passports from when I was a child but none of them have any stamps with ILR. I often travelled from the UK to mainland Europe but my passport was never stamped as it was travel within the EU

- I've never had a UK-issued RC or CSI or foreign issued EHIC as I've never had the need for one and its never been a requirement in all my years resident in the UK

- When we came over back in 1990 my dad worked a few different jobs, then was self-employed for a while. He passed away a number of years ago and I don't have any of his paperwork to prove when and when he worked and whether he has CSI or a foreign-issued EHIC; my mother was a housewife

- My activities after age 18 were as follows:
- 1998 to mid 2003 = attending university (5 years)
- 2004 to mid 2006 = worked a number of different jobs (mainly agency and retail work)
- end of 2006 to dec. 2010 worked in a permanent full-time position
- january 2011 to present - unemployed (getting by with savings and help from family)

- During my time as a student (school / sixth form) and specifically when I went to university, when I applied for a student grant / loan, I remember I was treated as a 'home student' rather than a foreign student. I've never has a foreign-issued EHIC or CSI

Does the above mean I do not have Permanent Residency, even though I have lived here for 26 years?

What are my options? Do I appeal or submit a new application, and on what basis can I do that?

Am I right in saying that it would all be easier if I was working at the moment, then my wife could just apply on the basis of me being a 'Worker'? And I would have no need for EHIC or CSI? (Can I just take any job, as long as I am working, even part-time, to be considered a worker? - then re-apply?)

I'm getting quite worried right now, it seems because I haven't officially applied for Permanent Residency, I don't have it, and it leaves my wife open to deportation!?

I'm grateful for any advice anyone can provide, many thanks in advance

[noajthan]

So if you were not stamped into UK with ILR back in 1990s and you don't have documentation from father and mother was a homemaker then there seem to be no options from that early period for you to have either been granted ILR or acquired PR.

If no CSI/EHIC and/or UK RC then your student years won't count toward PR as your PR clock wil have been stopped.

You may have acquired PR since 2004 - maybe by 2009 or 2010.
You would have to collate your supporting evidence as per the PR guidance to see how it all stacks up.

If you have acquired PR, assuming you have had no prolonged absences from UK (by which you could lose PR), then you should still have PR.
Once you have PR you have no need to exercise treaty rights any more; your wife can simply reside in UK & her PR clock will have been running via you as her sponsor.

Your wife may have acquired PR by now if you have been married at least 5 years, and she has been residing in UK at least 5 years (at same time as you) and you were exercising treaty rights (or had acquired PR).
Were you married by 2004 or later?

If you don't have PR yet then being unemployed is problematic; (there are now timelimits on being a qualified person who is a jobseeker).
In that case, your best bet may be to take out CSI for you and wife and become a self-sufficient qualified person.
(However any reliance on any benefits would be problematic if claiming to be self-sufficient).

Again, if you don't have PR then, yes, being a worker simplifies everything.

Part-time work can qualify, under EU law it just has to be genuine and effective.
Although, somewhat controversially, HO is now applying its MET/PET tests to determine who is a worker or self-employed person..

[mradam]

Thank you noajthan, your help is much appreciated.

I got married back in 2011 but my wife only arrived in the UK in May 2015 (by way of an EEA Family Permit), so she has been here less than a year.

Thank you for pointing out that I may have acquired PR in the period 2004 to 2009/2010; it did not cross my mind to look at this period;
I will look at at all my paperwork from back then; I may have had a few gaps in employment in between jobs during that period, would you know how much of a gap is allowed? Or if there is a gap, does the the PR clock resets to zero?

The only benefit I have claimed is Job Seeker's Allowance so that rules out applying as a self-sufficient person;

From what I can see, my only options are either to explore the period 2004 to 2009/10 to see if I have acquired PR or just get any job and apply as a worker.

If I apply as someone who has PR, would you say I should appeal on that basis, or submit a new application?

If I go with the worker option (I will of course find work first), how do I tackle the time issues? Its been about 2 weeks since they sent the rejection letter, do I then make an appeal once I have a job, or wait until I have a job and 3 months' worth of payslips, then apply again? But in the intervening period will that not leave my wife open to deportation?
Also with this option, work readily available in my area consists mainly things such as delivery drivers and similar work - would this count towards getting me worker status?

Thanks again.

[noajthan]

Thank you noajthan, your help is much appreciated.

I got married back in 2011 but my wife only arrived in the UK in May 2015 (by way of an EEA Family Permit), so she has been here less than a year.

Thank you for pointing out that I may have acquired PR in the period 2004 to 2009/2010; it did not cross my mind to look at this period;
I will look at at all my paperwork from back then; I may have had a few gaps in employment in between jobs during that period, would you know how much of a gap is allowed? Or if there is a gap, does the the PR clock resets to zero?

The only benefit I have claimed is Job Seeker's Allowance so that rules out applying as a self-sufficient person;

From what I can see, my only options are either to explore the period 2004 to 2009/10 to see if I have acquired PR or just get any job and apply as a worker.

If I apply as someone who has PR, would you say I should appeal on that basis, or submit a new application?

If I go with the worker option (I will of course find work first), how do I tackle the time issues? Its been about 2 weeks since they sent the rejection letter, do I then make an appeal once I have a job, or wait until I have a job and 3 months' worth of payslips, then apply again? But in the intervening period will that not leave my wife open to deportation?
Also with this option, work readily available in my area consists mainly things such as delivery drivers and similar work - would this count towards getting me worker status?

Thanks again.

If wife has just arrived in UK (last year) she will only acquire PR in 4 years time (assuming there's no Brexit and you remain married to each other).

Suggest print off the form, have a go filling it in for the period from 2004 - see how your evidence supports the case.

Note the current PR form is a monster but there's no legal obligation to use the latest form; you can use an earlier (simpler) version - examples to be found in the forum.

Gaps are hopefully minimal. Anything over perhaps 30 days would have to be justified in some category of qualified person (eg jobseeeking) or else your PR clock will have been stopped.

You can see what is recognised by HO as work in this guidance:
https://www.gov.uk/government/uploads/s ... _clean.pdf

Delivery driving should be acceptable as long as you have a contract, (and preferably pay tax/NI & etc). Under EU law the requirement is simply that work is 'genuine & effective'.
HO do tend to apply their MET/PET tests to workers now though.

I'm not sure if its best to appeal or reapply. Reapplying may be simplest.

As to timing just do the best you can, if you take on a new job it will take a little time to assemble your paperwork.
That scary letter may have been a standard boilerplate text - hopefully HO have bigger fish to fry and it will take them more time for any follow up to the letter.
If you are approached again just waving a job contract at them should be enough to prove you are a qualified person (worker) with a job.

Good luck.

[Sophia08]

Hi noajthan!

Can you please elaborate about the gaps.

Coz during my 5 year qualifying period, i lost my job and had to go back to italy for three months. Does it mean my PR clock stopped?

[Richard W]

- january 2011 to present - unemployed (getting by with savings and help from family)
...
I'm getting quite worried right now, it seems because I haven't officially applied for Permanent Residency, I don't have it, and it leaves my wife open to deportation!?

And in that case, you would need to apply for limited leave to remain for yourself under Immigration Rule 276ADE (private life after 20 years residence).

I note that you didn't mention living on benefits. Now, if your wife has been supporting you (though it seems unlikely), you just need to get CSI for the two of you, and then you become a qualified person as self-sufficient!

Getting a job seems the simplest solution.

[mradam]

Many thanks for the replies.

I've spent the past few days digging up past payslips and P60s to see if i can make 5 years as a worker to qualify as a Permanent Resident.

This is what I have come up:

October 2004 to June 2006 = working (21months or 1year 9months)

July 2006 - September 2006 = not working (3 months)

October 2006 - December 2010 = working (51 months or 4 years 3 months)

So for the above I have a 6 years as a worker but not a continuous 5 year stint due to the 3 month gap where I wasn't working

I have tried looking up online to see if there is anything in the rules that allows a small gap in the 5 years as a worker but I haven't been able to find anything.

Can anyone advise if I can submit an appeal / application on the above basis to prove my Permanent Residency in the UK?

When there is gap in work, does the clock pause for PR and restart where we left if after the small gap or does it reset completely back to zero?

Thanks

[noajthan]

Many thanks for the replies.

I've spent the past few days digging up past payslips and P60s to see if i can make 5 years as a worker to qualify as a Permanent Resident.

This is what I have come up:
...

So for the above I have a 6 years as a worker but not a continuous 5 year stint due to the 3 month gap where I wasn't working

I have tried looking up online to see if there is anything in the rules that allows a small gap in the 5 years as a worker but I haven't been able to find anything.

Can anyone advise if I can submit an appeal / application on the above basis to prove my Permanent Residency in the UK?

When there is gap in work, does the clock pause for PR and restart where we left if after the small gap or does it reset completely back to zero?

Thanks

There is a reference in an obscure government DMG (decision maker's guidance) document I have come across in my researches that suggests that gaps of up to approx 30 days can be overlooked.

Hence I posted previously...

Gaps are hopefully minimal. Anything over perhaps 30 days would have to be justified in some category of qualified person (eg jobseeeking) or else your PR clock will have been stopped.

3 months you would have to justify as jobseeking (if you have evidence of that) or as self-sufficiency (but CSI would have been needed).

If the PR clock stops then it will restart from zero; meaning another 5-year period will be required (from when it restarts).

All you can really do is go for it and apply; you're risking less than £100 and at least you will learn where you stand.

Note the current (monster) form is not compulsory; you may like to try this earlier (simpler) version - see how it shapes up with the information you have:
https://portal.mpsv.cz/eures/podminky/b ... /eea31.pdf
(You would just have to include the biometrics page from the current form and pay the current fee, not the fee from 2010)

[noajthan]

Hi noajthan!

Can you please elaborate about the gaps.

Coz during my 5 year qualifying period, i lost my job and had to go back to italy for three months. Does it mean my PR clock stopped?

Absences (from UK) of up to 6 months in a 12 month period will not interrupt continuity of residence in UK. (That means PR clock would not be stopped).

[Wise]

I strongly believed you should be fine with 6 months gaps in 12 month of any year. So glad Noajthan clarify it at the end.

Most importantly, make your application simple e.g treaty right in 1 wallet, ID in 1 wallet, proof off address in 1 wallet, and write everything you 're submitting in a letter of application and keep copy when re applying. You may use a very light folder. Don't appeal that may take ages though.

Good luck

[mradam]

Hi there everyone

Thanks for all the advice, much appreciated.

I am now almost prepared to re-apply for the Residence Card but I have a few questions, I'm hoping someone will be able to assist me...

1) The Home Office 'retained' my wife's passport when they sent the rejection letter but returned all other documents. Do I need to get it back from them before I re-apply or will it be enough to say that they already have it?

2) When I provide payslips to prove that I was a worker for 5 years (and hence acquired PR), do I need to provide every single payslip for every month of the 5 year period? I ask because I have most of them but a couple I have misplaced and there is also a 3 month gap when I wasn't working, so I wouldn't have payslips for those months

3) I have P60s for all the years, but I for 2006 I was given 2 P60s as I held down another weekend job in addition to my main weekday one, shall I provide this additional P60 for the part-time job as well or just leave it out in case it complicates matters

4) What other documents do I need to provide to prove that I have PR (acquired due to being a worker for 5yrs) apart from payslips and P60s? I was thinking a bank statement covering one month for each of the 5 years and same for utility bills but can't think of anything else?

Many thanks once again

[noajthan]

Hi there everyone

Thanks for all the advice, much appreciated.

I am now almost prepared to re-apply for the Residence Card but I have a few questions, I'm hoping someone will be able to assist me...

1) The Home Office 'retained' my wife's passport when they sent the rejection letter but returned all other documents. Do I need to get it back from them before I re-apply or will it be enough to say that they already have it?

2) When I provide payslips to prove that I was a worker for 5 years (and hence acquired PR), do I need to provide every single payslip for every month of the 5 year period? I ask because I have most of them but a couple I have misplaced and there is also a 3 month gap when I wasn't working, so I wouldn't have payslips for those months

3) I have P60s for all the years, but I for 2006 I was given 2 P60s as I held down another weekend job in addition to my main weekday one, shall I provide this additional P60 for the part-time job as well or just leave it out in case it complicates matters

4) What other documents do I need to provide to prove that I have PR (acquired due to being a worker for 5yrs) apart from payslips and P60s? I was thinking a bank statement covering one month for each of the 5 years and same for utility bills but can't think of anything else?

Many thanks once again

1) Not sure.
Logically, simply tell HO its already in their possession. But not sure, as common sense and HO don't always compute.

2) P60s per year, and a sample of payslips per year should be fine.

Ofcourse if you have them all and can bear the postage you could send them all.
You could also throw in your employment contract/s and any key letters from employer/s;
(for example: annual bonus, promotion & etc).

The aim is to eliminate any possible 'wriggle room' on the part of HO by providing good (if not unimpeachable) supporting documentary evidence.

3) The main one should suffice, but same argument as in #2 could be used.

4) You need to prove your identity and your residency in UK as well as your exercise of treaty rights.
And to show any absences from UK were within prescribed limits.

Have a look at the PR form and guidance for relevant checklist of documents.

Remember to keep scans & copies of all documents (& application form plus payment details) that you submit - for your reference and in case of any later queries/followups.