EEA EFM delays - please help

[Andy16]

Hello guys,
I am new member to this forum but I have got a lot of insight from this forum about hassles in immigration and I am very thankful to you guys about this great initiative. I am totally frustrated with the way the home office has handled my case and I want some much-needed suggestions to get some help with my extremely stressful situation from you beautiful people.
My situation is as follows - " I came to UK in 2010 on student visa to pursue undergrad and subsequently I pursued a MSC. While I was studying I met my girlfriend who is Portuguese national due to our mutual interest in romance and latin language classics. We met through mutual friends and overtime we moved in together and i started to travel for my degree. When I was about to graduate I got job offer with sponsorship for tier 2 visa but a friend recommended me to go through EEA-Fm route as my girlfriend was working and exercising treaty rights. We wanted to marry but we wanted to have a good ceremony and invite both our families and friends. Due to time constraints we decided not to get married and apply as unmarried partners. That's where the whole thing went haywire.
I used services of a solicitor to post a application as it was unnecessarily lengthy. Within 25 days the home office returned the documents saying that they could not deduct the money therefore asked me to reapply. But on the side another agency sent me a letter saying that I am an over-stayer. I asked my solicitor to clear this conundrum and home office updated their records. I resend the documents with a postal order instead of card details this time so that they don't have any excuse of money-deduction and posted by tracked delivery. To my surprise, home office did not receive my documents although it showed received on online tracker and they sent me another letter saying I am over-stayer. I was totally appalled and asked my solicitor to contact them again and they asked him to resend the documents and updated their record. On the side DVLA cancelled my license as well although i informed them about this whole ordeal. Now after almost one year of waiting they received my application and gave me no right to work. I have been waiting for biometric enrollment for 4 months but no one seems to reply.
This entire ordeal has put me in tremendous stress. My career has suffered, there has been a tremendous pressure on my girlfriend and family to help me manage my finances since I could not work and the home-office response is just terrible. Even my solicitor is fobbing me off and not giving me required guidance.
I can't wait any longer and thus am asking for some help from you guys if you can. The most important thing is I got a job from my dream company and they are willing to sponsor me which leads me to two solutions:
1. I can withdraw EEA-EFM application and apply for tier-2 visa. But I may have to leave the country and my RP withdraw may deem me overstayer(I don't know whether I will get 28 days to apply for new visa or not)
2. The second solution is I ask for my passport back and keep my application going for EEA-EFM and apply for tier-2 on the side. I just want to ask if I can have two parallel application on the side and what may be the potential hiccups.
I will be really grateful I someone can help me in this terrible situation.
Many thanks

[noajthan]

Thirdly, get married.
Right to remain in UK and work/study will kick in immediately if spouse/sponsor is a qualified person.

[Andy16]

Thank you for your reply. I do want to get married but I don't know how will that effect my application since my application is already under consideration and it will extend their teerribly slow process to another few months.
Is it possible i can go with option 2 and apply for tier-2 on the side along with EEA-FM
Thanks

[noajthan]

Thank you for your reply. I do want to get married but I don't know how will that effect my application since my application is already under consideration and it will extend their teerribly slow process to another few months.
Is it possible i can go with option 2 and apply for tier-2 on the side along with EEA-FM
Thanks

If you have documents available then there should be no crossover; the applications are completely separate and made under different legislation.
So at the moment you do not have EU-based 'leave' (even if the concept applied on EU route - which it doesn't).

Note if EFM RC application does ultimately fail you will be an overstayer unless making such provision to have some UK domestic-based leave in place.

[Andy16]

Thank you @noajthan for your reply. I do have all the documents but my passport is with home office for EEA- Fm application. Can i ask it back without withdrawing application or should i just tick in the application form that my passport is already with home office.
Also I did not fully understand the meaning of your statement here-"So at the moment you do not have EU-based 'leave' (even if the concept applied on EU route - which it doesn't)". I would be very grateful if you elaborate that please.
Many thanks

[noajthan]

Thank you @noajthan for your reply. I do have all the documents but my passport is with home office for EEA- Fm application. Can i ask it back without withdrawing application or should i just tick in the application form that my passport is already with home office.
Also I did not fully understand the meaning of your statement here-"So at the moment you do not have EU-based 'leave' (even if the concept applied on EU route - which it doesn't)". I would be very grateful if you elaborate that please.
Many thanks

On UK immigration route, one applies for 'leave to remain (in UK)' and obtain a visa.
On EU migration route, there is no concept of 'leave' nor visas, just the loftier ideals of the Directive and free movement rights.

[Andy16]

Oh great!! That makes it clear.
So if i apply for a tier-2 visa now can i ask my passport back without withdrawing my EEA-EFM application and resend it when they ask for it!!
Secondly, since I applied for EEA-EFM last year and my student visa ended immediately after I applied for EEA-EFM and the process is going on for ages. So what documents should i sent the home office to prove that there was no break in my immigration history and all my applications were well before time and it was case-workers negligence that it got so delayed. I have got some emails from case-workers giving vague replies.
This will clear my doubts.
You are a star man. Honestly you cleared my last one years worth of stress in an hour.

[noajthan]

Oh great!! That makes it clear.
So if i apply for a tier-2 visa now can i ask my passport back without withdrawing my EEA-EFM application and resend it when they ask for it!!
Secondly, since I applied for EEA-EFM last year and my student visa ended immediately after I applied for EEA-EFM and the process is going on for ages. So what documents should i sent the home office to prove that there was no break in my immigration history and all my applications were well before time and it was case-workers negligence that it got so delayed. I have got some emails from case-workers giving vague replies.
This will clear my doubts.
You are a star man. Honestly you cleared my last one years worth of stress in an hour.

You can request passport back. Make sure you do not check the 'withdraw/cancel application'-option if you intend current application to proceed despite withdrawing passport.
See request form on UK Gov website.

I don't know your exact immigration status at the moment.
If RC is confirmed and issued all should be well.

If applying for Tier 2 you will have RLMT to contend with; and you may have to apply from abroad (not sure).

Be careful about apportioning blame for delays; its your obligation to pay for the application and non-payment renders a RC application invalid.

[secret.simon]

When did your study visa expire?

Only direct Family Members (spouse, children and dependent parents) of EEA citizens have an automatic right to stay in the UK.

Extended Family Members (EFMs) do not have an automatic right to stay in the UK until their application has been reviewed by the Home Office and they have been granted a Residence Card. Only on receipt of the Residence Card does the right of EFMs to stay in the UK start.

During the time that you stay in the UK while your EFM application is under consideration, you are an overstayer. Hence the DVLA cancelled your license and you are getting those letters. This will have an impact on any future citizenship applications that you may have in mind. Technically, you have no right to work at the moment either.

Section 3C leave, when your legal status under the previous visa continues while your application is under consideration, does not apply to applications made under the EEA Regulations. Had you applied for a T2 visa before the end of your student visa, your leave would have been automatically extended by Section 3C.

Also see: Section 3C does not apply to EU law residence applications.

Your best course of action would be to apply for the Tier 2 application as well, just to cover your grounds. That way, your right to work will kick in when either you get your T2 visa or your Residence Card, whichever is first. Till that time, you are an overstayer and this period of overstay between the end of your study visa and either a new T2 visa or Residence Card will impact your future applications under UK law.

So what documents should i sent the home office to prove that there was no break in my immigration history and all my applications were well before time and it was case-workers negligence that it got so delayed.

There is a break between the end of your study visa and the grant of your EFM Residence Card. That is not the case-workers error, that is the law.

[Andy16]

Thank you again!
I am sure that I have not broken any laws and have filed for all applications on time. EU laws and UK immigration laws are overlapping so I believe I am insulated for the last one year. And the job offer I have got has satisfied RMLT as it was advertised for more than 6 months and is also under shortage occupation list.
Please let me know if my understanding is wrong on this matter. My solicitor told me that since I am dependent of EU citizen, EU law holds precedence and thus there are no breaks in my immigration history. But I am really nervous and my solicitor does not give me any timely updates so I was in panic mode.
Thanks a lot for all your help!

[Obie]

The way the licence issue work is that UKVI usually inform a person they will be notifying the Licence authority, and give them an opportunity to provide reasons why their licence should not be revoked.

If there is a pending application, a person's licence is not usually revoked.

Now your lawyer need to write to the UKVI to inform them that their actions have led to this, and that legal action will follow, as you indeed posted the application in correct time, and there is postal receipt of this.

You are not in the UK unlawfully, as you have a pending application, and therefore the driving licence revocation was unfair and unlawful.

[secret.simon]

Obie, in your assessment, what is the current immigration status of the OP?

[secret.simon]

Please let me know if my understanding is wrong on this matter. My solicitor told me that since I am dependent of EU citizen, EU law holds precedence and thus there are no breaks in my immigration history.

I have explained above the difference between being a direct Family Member and an EFM. Your rights as an EFM only start after the RC is issued. You are only recognised as a dependent of the EEA Citizen at that point. Till the time you get the RC, you do not have any dependent rights as you are not a dependent (from the EEA Regulations point of view).

If you were married to your EEA citizen significant other, your rights as a dependant would start from the date of marriage. As EFM, it starts from the date on your RC.

Be aware that many people on these forums have opined that some solicitors and even the Home Office caseworkers get the law wrong.

[Andy16]

When did your study visa expire?

Only direct Family Members (spouse, children and dependent parents) of EEA citizens have an automatic right to stay in the UK.

Extended Family Members (EFMs) do not have an automatic right to stay in the UK until their application has been reviewed by the Home Office and they have been granted a Residence Card. Only on receipt of the Residence Card does the right of EFMs to stay in the UK start.

During the time that you stay in the UK while your EFM application is under consideration, you are an overstayer. Hence the DVLA cancelled your license and you are getting those letters. This will have an impact on any future citizenship applications that you may have in mind. Technically, you have no right to work at the moment either.

Section 3C leave, when your legal status under the previous visa continues while your application is under consideration, does not apply to applications made under the EEA Regulations. Had you applied for a T2 visa before the end of your student visa, your leave would have been automatically extended by Section 3C.

Also see: Section 3C does not apply to EU law residence applications.

Your best course of action would be to apply for the Tier 2 application as well, just to cover your grounds. That way, your right to work will kick in when either you get your T2 visa or your Residence Card, whichever is first. Till that time, you are an overstayer and this period of overstay between the end of your study visa and either a new T2 visa or Residence Card will impact your future applications under UK law.

So what documents should i sent the home office to prove that there was no break in my immigration history and all my applications were well before time and it was case-workers negligence that it got so delayed.

There is a break between the end of your study visa and the grant of your EFM Residence Card. That is not the case-workers error, that is the law.

Oh that's new. My solictor told me when i filed for application that I am insulated because I applied for the FP on time and have notified home office about my intentions via, phone, mail and text. This was my understanding till date. And home office have send me an acknowledgement letter saying that they have received my documents. I don't understand what to do at all! M ysolictor keeps telling me everything is OK and on track. I don't know what to do.

[Obie]

Obie, in your assessment, what is the current immigration status of the OP?

From your time in the forum, I am sure you would have noticed that I am a person who derive no pleasures in repeating himself.

I have set out what OP's status is and the policy of UKVI in regards to revocation of licence.

You are more than welcome to make reference to them, in regards to my views and position.

[secret.simon]

I don't understand what to do at all! M ysolictor keeps telling me everything is OK and on track. I don't know what to do.

Print this thread, take it to your solicitor and ask him to advise you on whether the points raised by me are incorrect and if so, why? It would be great if his response can be updatedin the thread.

If he agrees with my points, he appears to have misguided you and you should complain to the relevant authorities (OISC and possible the SRA and Law Society). It still won't get you off the hook of being an overstayer. Ignorance of the law is no excuse

[noajthan]

Oh that's new. My solictor told me when i filed for application that I am insulated because I applied for the FP on time and have notified home office about my intentions via, phone, mail and text. This was my understanding till date. And home office have send me an acknowledgement letter saying that they have received my documents. I don't understand what to do at all! M ysolictor keeps telling me everything is OK and on track. I don't know what to do.

An RC is not a family permit (FP).

When original visa expire?

When was first EFM RC application made (the one that failed due to payment)?

When was second EFM RC application made? (the one that was tracked but somehow lost)

When was third delivery of EFM RC application/documents made?

[Obie]

So far as the lawyer mentioned you have a continued right to work, or Section 3C is engaged, then that is an Error. He should never have said that. It is regrettable that he did so.

But lawyers are human beings also. Not infallible. He may well have muddled your position to that of a spouse of an Eu citizen.

I do not believe that this simple error, if acknowledged by him, should merit a complaint to the Law Society or SRA.

I am deeply troubled about the fact that a parcel containing your application sent to the Home office was treated in the way they treated it, and as a result you have temporarily lost your right to drive in the UK.

You must pursue that aspect of your case, and put pressure on them to prioritize the processing of your residence case application, as a result of their previous failings.

[Andy16]

Thank you all your your suggestions!
I am slightly confused here though! Can anyone suggest me my next course of action. I should have applied for tier 2 last year or would have returned back but since my fiancee was settled here and I got a job offer I decided to stay. I have only been following my solicitors advice and blindly following the law. All i knew is that EU law runs simultaneously with British law till the time UK is part of EU and probably that was what entire Brexit all about as EU law holds precednce.
I have joint bank accounts, tenancy agreement, photos and many other documentary evidences with my fiancee and I have got the acknowledgement letter from home office. I am confused if home-office does not agree for extended family members as direct members then what is the point of having such a law. Furthermore, if my fiancee is settled here in UK then where else can I apply the EEA-EFM from. I have had a stable presence in UK from last 6 years myself. Even my solicitor recommended me to apply from here.
I don't know what to do next!

[secret.simon]

I am confused if home-office does not agree for extended family members as direct members then what is the point of having such a law.

That is not the Home Office making the law, that is the European law itself. Here is a link to Directive 2004/38/EC, the EU law that applies.

Article 2, Point 2 defines who a "Family Member" is. Article 3 Point 2(b) is what applies to you. Note that because you are not a "Family Member", you are not a direct benficiary of the Directive. All that the UK must do is "in accordance with its national legislation, facilitate entry and residence" for you. And that is being done. Your application is being considered.

Fastest way out of your quandary, get married. Your rights kick in straight away.

[noajthan]

Thank you all your your suggestions!
I am slightly confused here though! Can anyone suggest me my next course of action. I should have applied for tier 2 last year or would have returned back but since my fiancee was settled here and I got a job offer I decided to stay. I have only been following my solicitors advice and blindly following the law. All i knew is that EU law runs simultaneously with British law till the time UK is part of EU and probably that was what entire Brexit all about as EU law holds precednce.
I have joint bank accounts, tenancy agreement, photos and many other documentary evidences with my fiancee and I have got the acknowledgement letter from home office. I am confused if home-office does not agree for extended family members as direct members then what is the point of having such a law. Furthermore, if my fiancee is settled here in UK then where else can I apply the EEA-EFM from. I have had a stable presence in UK from last 6 years myself. Even my solicitor recommended me to apply from here.
I don't know what to do next!

You are correct in applying for your EFM RC from within UK. That's how it works.

But extended famly members (including unmarried partners) are different from direct family members (eg spouses) - and they have different rights.
Although if/when you are issued with an EFM RC you may be treated as if you were a FM (but you will still be an EFM).

Get up to speed on free movement here:
http://ec.europa.eu/justice/policies/ci ... nt_low.pdf

[Andy16]

Oh that's new. My solictor told me when i filed for application that I am insulated because I applied for the FP on time and have notified home office about my intentions via, phone, mail and text. This was my understanding till date. And home office have send me an acknowledgement letter saying that they have received my documents. I don't understand what to do at all! M ysolictor keeps telling me everything is OK and on track. I don't know what to do.

An RC is not a family permit (FP).

When original visa expire?

When was first EFM RC application made (the one that failed due to payment)?

When was second EFM RC application made? (the one that was tracked but somehow lost)

When was third delivery of EFM RC application/documents made?

I am sorry i confused RC with FP . My mistake
My origianal student visa expired on 30th april 2015
I applied for EEA-EFM around 20th April.
Got first reply around end of may saying my account could not be debited and asked me to reapply
In next 5 days sent new application with all the documents. It showed that it has been delivered but home office caseworker said that it has not been received.
They kept giving the same reply and then a new caseworker contacted my solicitor saying that my case was passed to him therefore the delay and asked to send the documents again in February this year.
Sent a copy of documents again with tracked delivery in February
Received COA with no rights to work in may
Waiting fro bio metric since!
Made multiple calls and send various mails but the only reply i got was to wait

[Andy16]

So far as the lawyer mentioned you have a continued right to work, or Section 3C is engaged, then that is an Error. He should never have said that. It is regrettable that he did so.

But lawyers are human beings also. Not infallible. He may well have muddled your position to that of a spouse of an Eu citizen.

I do not believe that this simple error, if acknowledged by him, should merit a complaint to the Law Society or SRA.

I am deeply troubled about the fact that a parcel containing your application sent to the Home office was treated in the way they treated it, and as a result you have temporarily lost your right to drive in the UK.

You must pursue that aspect of your case, and put pressure on them to prioritize the processing of your residence case application, as a result of their previous failings.

Hello obie,
I may have written something wrong. My lawyer never told me to work and i followed that. I have not been working from last year and a half almost and thats why i got frustrated as I have a career ahead of me and when I see my fiancee working so hard and my family providing for me when I am capable enough and keep getting job offers and qualifying interviews, i get depressed. This delay is causing dent in my family relationship and personal lives. I had to give up so many job offers because of this prolonged wait and my finances are in ruins and I am totally dependent on y fiancee for I dont know how long.

[noajthan]

I am sorry i confused RC with FP . My mistake
My origianal student visa expired on 30th april 2015
I applied for EEA-EFM around 20th April.
Got first reply around end of may saying my account could not be debited and asked me to reapply
In next 5 days sent new application with all the documents. It showed that it has been delivered but home office caseworker said that it has not been received.
They kept giving the same reply and then a new caseworker contacted my solicitor saying that my case was passed to him therefore the delay and asked to send the documents again in February this year.
Sent a copy of documents again with tracked delivery in February
Received COA with no rights to work in may
Waiting fro bio metric since!
Made multiple calls and send various mails but the only reply i got was to wait

So second application (which was tracked as received by HO) was despatched at end of May, perhaps first week of June 2015.
That is after visa expiry (April).

This assumes you may consider 2nd application to be the legitimate application even though HO lost it and you(/solicitor) then sent a fresh/replacement bundle at a later date (in 2016).

[secret.simon]

Overstay since May 2015!!! The advantage of applying under EU law is that you will not be deported.

But all applications under UK law will be very negatively impacted by this period of overstay. You will have no chance of applying for British citizenship (which is purely UK law) till at least 10 years after the grant of your T2 visa (if you go for that) or RC (when you will resume legal stay).

Get your firm to get a T2 visa for you. At least that way you can start working again.