EEA PR refused and appeal or send a new application?

[john232]

Hi Guys,
Looks like my life is a constant battle with the HO, I have just received a refusal for my PR application based on the fact that I have not submitted enough evidence of my ex wife exercising her treaty rights in the UK.
I have a retained rights of residence from October 2015 where I had sent through 3 years’ worth of company accounts from my ex wife’s company and which I had from the company house, these were sufficient evidence at the time for the home office to issue me a retained rights of residence. I have sent through the exact same documents for my PR along with 5 years’ worth of my own payslip, only to show that I have been employed for longer than the period required of the remaining 2 years.
The refusal was based on the fact the company house accounts are not sufficient documents and they need further evidence of my wife’s treaty rights for the initial 3 years, having in mind they have issued me the retained rights of residence based on the exact same documents!
I need your help please,
- Should I go ahead with the appeal and how long will I have to wait for my case?
- Should I file a new application hoping someone more reasonable will assess my application? I don’t have additional documents to provide as I have lost completely contact with my ex wife
- Would you know a good law firm that you would recommend? I had my fair share of bad experiences with solicitors who made my life a living hell (wrong application filed or leaving the firm and the immigration department shutting down)

thanks,
John

[CR001]

What exactly have you applied for as you have posted the same question in the ILR forum, where you have been asked to clarify your application.

http://www.immigrationboards.com/indefi ... l#p1454413

[john232]

Sorry i didn't realise I had that posted in the wrong place first, it is an EEA PR application and not ILR. sorry for the confusion.

[Obie]

What documents were provided to aid this application.

You are most advised to ensure your appeal rights are exercised.

[john232]

Hi Obie,

I have sent through my ex wife's company accounts from the company house for the 3 years we were married which were the same documents I had sent through for the retained rights of residence application, and additional 5 years worth of my payslips as evidence that I am working and living in the UK.

As far as I have been told, the appeal process will take 1 year for the hearing and is very costly so I am really confused with my options now as it may take a longer than sending a new application with a cover letter appealing the fact the company accounts are not sufficient evidence, mainly based on the fact these were used in my previous application.

please let me know your thoughts.
thanks
John

[john232]

I have just read the refusal letter again and it states:
"it is noted that you were issued with a residence cards as the former family member of our EEA sponsor on the 5th October and therefore it is accepted that at the time of your divorce, your EEA national sponsor was exercising treaty rights" then it says " in order to demonstrate that she was exercising her treaty rights during this period you have provided accounts covering 2012 to 2016. without any corroborating evidence such as business bank acocunt or tax and national insurance payment, this department is unable to verify that you sponsor was economically active during this time as the accounts cannot be accepted alone"

what kind of nonsense is this? the second paragraph contradicts the first cause the first acknowledges that she was exercising treaty rights at the time of our divorce. then where would i be able to obtain business account details or tax details from my ex wife!

did I not need to provide evidence of her treaty rights for the 3 years to obtain the retained rights of residence? if so, the fact I was granted this means that she was exercising those rights and they have acknowledged it by granting the visa at the time!

[Obie]

You have to address the issues raised as you could face a double refusal.

It may be advisable to keep your appeal rights options open.
For Retention only evidence at the time of divorce is required, for Permanent Residence, evidence of all the period of marriage plus evidence of your employment after divorce.

[john232]

I will definitely consider appealing, just really don't want to go through more disappointment, time waste and stress...
what I can't understand is the accounts were valid at the time of divorce even if they have considered only the period from when she filed the divorce to the time I have submitted my application but not valid now for the full 3 years period. I can't obtain business bank account or tax statements, I don't think anyone could obtain these unless they are shareholders in the company, this is just making it impossible for me

[Obie]

I think the judged are likely to understand, as caselaw makes clear that the documentary burden on divorce couple should not be made too hard, as it will be difficult for them to obtain after divorce.

[john232]

Would you know roughly how long will it take to get a hearing considering I will be appealing from the UK?

[Obie]

It takes up to 18 months these days for an oral hearing. Paper consideration are much more quicker.

[john232]

I have lodged the appeal for an oral hearing on time and now waiting... 18 months is a very long time and it's already affecting my state of mind, would you recommend sending a fresh application as well? the HO requested business bank account or tax and national insurance payments, not sure if I would have access to this info from the HMRC!

[Obie]

Perhaps you may need to remind yourself why appeal was filed.

[ribena]

Hi all
I have retained my right after divorce as well and have submitted application for PR (Non-eea) in January.

I myself trying to understand all the laws and regulations, but if I may point that that in the EEA4 guidance, page 4/18, Section 5; it states :

If you’re applying on the basis of a retained right of residence, you must show you have been
resident in the UK since you retained your right of residence. If you have not previously been
issued with a registration certificate or residence card in this category, you must also show that
you and your sponsor were living in the UK before the ‘relevant date’ – see notes for section 8.

And in the same guidance, page 6/18, Section 8 :
If you already have a registration certificate or residence card on the basis of a retained right of
residence, you do not need to submit evidence of residence before the relevant date. However,
you must show that you have lived in the UK in accordance with the Regulations since you were
last issued with a registration certificate or residence card, and have completed 5 years’
continuous legal residence in the UK

I am sure john232 had been issued with a residence card? If so, basically John needs to prove that he has been a resident in the UK since Oct 2015 (retention)? Did I read the regulations/guidance correctly?

[john232]

Hi Ribena,
Sorry I have only checked your message today.
I have been trying to get more information from the HO on the reason behind rejecting my application and involved my local MP in the process. The reply from the HO is that I haven't provided enough evidence that I have tried to obtain documents that my ex wife was in fact exercising her treaty rights as below:

"The guidance notes that in cases where there has been a breakdown in the relationship between the applicant and their EEA national sponsor, it may not always be possible for them to get the documents that are needed to support their application. However, they would need to demonstrate that they have made every effort to do so and that this was unsuccessful."

having read the same guidance however, I found the below on page 25:

"Decision making: permanent residence where the applicant has a retained right of residence" and which states "where the applicant has already been issued a document confirming they have a retained rights of residence, they would only need to meet the conditions in regulation 10(6)."

The regulation 10(6) only requires me to be employed or self-employed and remain as such in order to acquire permanent residence. If I understood this correctly, I have hence met the criteria to obtain the permanent residence based on the fact I was granted the retained rights of residence and in full employment throughout the period and before.

https://www.gov.uk/government/publicati ... -residence

I don't have a choice now but to wait for the hearing date I guess. I am open to any other suggestion though from yourself or any other member of the group.

thanks

[john232]

Hey guys, I had my appeal heard today and the judge decided there and then to grant me my appeal, that is based on the fact that I shouldn't need to provide evidence of my ex's treaty rights again since I was granted the retained rights of residence, regulation 15 and 10(1).

My question is around the issue date of my PR now, would this be from today or would this be backdated to the refusal date in February 17? This would obviously dictate when I can apply for the citizenship.

[Wise]

Firstly, I will like to commend your effort by taken those hostile body and their representatives on! Congratulation. Normally your PR date should/will be your 5th yrs of your marriage/combination and forget about your period of appeal. However because they are such an evil elements (some caseworker) they may put one date on approval letter and different one on the card, my advise is just to move on and go by whatever date given and stay out of trouble with them please. Also just to tell you know how bad they are, many many applications have been approved by what the judge says/believed without getting to them. Why now, time/money wasters is who they always are.


Good luck for the future

[Wise]

Still up til now many applications like yours were still going through refusal by same body. Some was given appeal and some don't why by asking them to provide their ex wife either passport/ID after divorce when they've got retained right of resident without providing the ID how does that sound sensible. Because they knew that everything they throw at people they will fall for it without challenge. That why I will always love people who knows what they are doing.

[john232]

Thanks a lot I have to say it was very satisfying seeing the look on the HO representative when the judge gave her verdict imminently rather than in 2 weeks. I wouldn't have thought the HO would appeal but guess I have to wait and see.

I will try to preempt further delay and as soon as I receive the judge's letter, I will send a letter to the HO requesting the issue date to be backdated to the date of the refusal as it is only fair that I don't have to wait for another year. Might also ask my local MP to write to them since she has been very helpful from the start.

[Obie]

I personally hope you win. However on the basis of Regulation 15(1)(f), it seems your judge may have arguably erred in law, and this may live his decision vulnerable to a challenge from the Specialist team.
For a person to qualify under Regulation 15(1)(f), they need to show that they resided in the UK as a family member of an EEA national from time of marriage to the time of divorce.

After divorce, they need to show that they are working or self employed, and that the period of marriage and the period as a family member who has retained a right of Residence, amount to 5 years.

It is a legal requirement that you must show that all through your marriage your were residing in the UK in accordance with EU law as a father of a qualified person.

[john232]

Hi Obie,

I have been in the UK for the last 11 years now and have proven I resided in the UK for the last 5 years along with my employment history for 5 years so that shouldn't be a concern. I have met these requirements but the HO argued that they needed to see more evidence of my ex treaty rights which I couldn't obtain. The fact they had granted me the retained rights should have meant that I only needed to prove that I am employed for the period after the divorce according to regulation 15 and 10 which is the case. Their judgement on my case was very unprofessional and unfair.

[Wise]

ribena » Fri Mar 17, 2017 3:08 pm

Hi all
I have retained my right after divorce as well and have submitted application for PR (Non-eea) in January.

I myself trying to understand all the laws and regulations, but if I may point that that in the EEA4 guidance, page 4/18, Section 5; it states :

If you’re applying on the basis of a retained right of residence, you must show you have been
resident in the UK since you retained your right of residence. If you have not previously been
issued with a registration certificate or residence card in this category, you must also show that
you and your sponsor were living in the UK before the ‘relevant date’ – see notes for section 8.

And in the same guidance, page 6/18, Section 8 :
If you already have a registration certificate or residence card on the basis of a retained right of
residence, you do not need to submit evidence of residence before the relevant date. However,
you must show that you have lived in the UK in accordance with the Regulations since you were
last issued with a registration certificate or residence card, and have completed 5 years’
continuous legal residence in the UK

I am sure john232 had been issued with a residence card? If so, basically John needs to prove that he has been a resident in the UK since Oct 2015 (retention)? Did I read the regulations/guidance correctly


PLEASE CAN ANYONE IN THIS FORUM TELL ME WHAT IS WRONG IN THIS INTERPRETATION IN PARAGRAPH 4 AND 5 COMPARE TO HOW HOME OFFICE IS DEALING WITH CURRENT APPLICATIONS ON SAME ISSUES OTHER THAN AN ACT OF EVIL BY REFUSING PEOPLE.

John232 enjoy your freedom whenever it arrives.

[john232]

Hi Ribena,

Thanks a lot and good luck with your application I certainly can't understand their decision based on their own guidance and regulations, I believe the requirement is that I have lived in the UK for 5 years and I can prove that I was working since the retained rights was granted

Requirements of regulation 15 of the 2016 regulations
Regulation 15(1)(f) of the regulations states that someone will have a permanent
right of residence in the UK if they:
• have lived in the UK in line with the 2016 regulations for a continuous period of
5 years
• have a retained right of residence at the end of the 5 year period
You must make sure that they:
• met the conditions of being the family member of an EEA national who is
exercising free movement rights in the UK prior to retaining a right of residence
• met the conditions of regulation 10 at the time of their change in circumstances
• continued to meet the conditions of regulation 10(6) until the end of the 5 year
period of residence
Where the applicant has already been issued a document confirming they have a
retained right of residence, they would only need to show that they continue to meet
the conditions in regulation 10(6). This means showing they are a worker, self-
employed person or self-sufficient person and that they have resided in the UK for a
continuous period of 5 years.

They have tried however to contest that they needed evidence of my ex treaty rights covering the full period of 5 years today which the judge said it wouldn't be fair on me, she then took her decision in my favour once the lawyer stated the above guidance

[Obie]

It is possible for a Non-EEA national who has a retained right of residence to qualify for Permanent Residence after 5 years on retention of residence.
However if a person is claiming period of there marriage in accordance with Paragraph 63 of Samsam, then they are required to show that during those period of their marriage, their family was exercising treaty rights.

Guidance don't usually have the force of law, the regulation and the directive does.

[john232]

Hey guys, some more good news finally, I have just received a letter from the HO that they will not challenge the court decision and my case has now been handed to post decision casework unit. The letter was very vague however as it didn't state the next steps and what is needed from my side as my passport was returned when they initially refused to grant me the PR last year.

Would anyone be able to tell me what should happen next please?

I also would like some clarity on the issue date of the PR as I have applied in July 16 and would want the HO to take this period into consideration, the court decision also stated that the caseworker had sufficient evidence to allow this application at the time it was made. Should I contact the HO to request the PR to be backdated and are there any guidance or regulations that I could rely on?

Thanks for your continuous support as always.