Denied and told I have to leave Immediatly

[irishsea]

I will make this as short and sweet as possible as I did not really think this would happen.

I am a United States Citizen and my civil Partner was born in Northern Ireland, and a holder of a UK and Irish passport. When we entered a civil partnership 8 years ago we did so under the EEA Irish passport. We had absolutely no issues and it was a fast and painless process to get my first residence card and right to work.
BTW I have lived in the UK 8 years.

Move on to time to renew, I submitted all forms possible in April, did my bio metrics and received my right to work. Today I received all my papers back with my decision letter with in bold across the top:

REFUSAL TO ISSUE A RESIDENCE CARD (No FUTHER Basis Of Stay In The UK)

You should now make arrangements to leave.

Now I applied as a family member of a EEA National (Irish Passport holder, Northern Ireland, Good Friday Agreement) But they say say that my partner has failed to provide that they are a qualified person based on:

Your EEA family member has not provided official medical evidence that confirms that her current incapacity is preventing her from taking employment/self employment (I support us both). We included not only an offical letter from her GP saying so, but also a form from a Government sponsored program that she is in that tries to help people with her conditions to where over time they are able to work again.

You have not provided any evidence that your sponsor has registered as a job seeker with a relevant job office: We enclosed the document from job seekers dated in 2016 that denied any help to her what so ever as I earned to much money.

You have not provided any evidence with this application that your sponsor previously worked before becoming temporarily incapacitated: My partner has suffered with mental health issues for over 5 years. We did not have any payslips from that long ago and included a letter stating that she hadn't worked in that amount of time and did not have anything from before that.

It then goes to say that we have failed to show my partner is a qualified person in the United Kingdom as a temporarily incapacitated ceased worker. We also included a letter stating that I am the supporting person of the household. Then it says that we have therefore not provided adequate evidence to show that I am the family member of an EEA national exercising treaty rights in the UK.

As a final it says that I didn't make a valid application for article 8 consideration so it has not been given consideration if my removal from the UK would breach Article 8 of the ECHR. But that they would like to point out that a decision to not issue me a residence card does not require me to leave the UK if I can otherwise demonstrate that I have a right to reside under the regulations?

And of course I have the right to appeal (if I had the money) in 14 days.

So anyone? What else can I give them that my partner cannot work and cannot be on job seekers or contribution based besides the denial letter and doctors letters?

[chriskv1]

I'd like to clarify this: You said they hold a 'UK' and Irish passport?
So are you telling us that your partner has dual nationality and holds both a British and another Irish passport?

[irishsea]

In Northern Ireland residents are allowed to hold both UK and Irish Passports, so yes.

There was another instance of this that was reported where a Northern Ireland womans husband was denied as she also identified as Irish.
http://irishpost.co.uk/northern-irish-w ... s-british/

The thing is we sent in all paperwork they requested and they still denied us.

[chriskv1]

I know they are allowed both British and Irish nationality. But as many others on this forum would tell you :

An EEA national is :
A national of an EEA State who is not also a British citizen;

I don't think that the home office knows that your spouse/partner has a British passport.
I'm afraid you're not eligible to be on the EEA route at all and should apply under the UK route.

Your partner would only be considered to be eligible to sponsor you under the EEA rules if they only held an Irish passport and not a British one.

[irishsea]

We also sent in her British passport, as we did the first time we applied this way and it was accepted. So yes, they knew as it was also written on the paperwork. Also no reference of that was put in under the reasons for refusal. It also states on my passport, the part where they've stuck in my now expired visa, "Resident card of a family member of an EEA national"

[secret.simon]

When we entered a civil partnership 8 years ago we did so under the EEA Irish passport. We had absolutely no issues and it was a fast and painless process to get my first residence card and right to work.BTW I have lived in the UK 8 years.

Given that the OP has been in the UK for the past eight years, he would likely be covered by the McCarthy transitional arrangements. So, for the purpose of this thread, his partner's British nationality likely does not matter.

Did your British/Irish partner have CSI aka private health insurance? When did your British/Irish partner become incapacitated/unable to work? Did he work or was he self-employed before then?

[irishsea]

Your partner would only be considered to be eligible to sponsor you under the EEA rules if they only held an Irish passport and not a British one.

My partner held both the first time we applied and were successful..are you saying that they were wrong the first time? You are allowed to hold both passports as a birth right of living in Northern Ireland.

[Casa]

When we entered a civil partnership 8 years ago we did so under the EEA Irish passport. We had absolutely no issues and it was a fast and painless process to get my first residence card and right to work.BTW I have lived in the UK 8 years.

Given that the OP has been in the UK for the past eight years, he would likely be covered by the McCarthy transitional arrangements. So, for the purpose of this thread, his partner's British nationality likely does not matter.

Did your British/Irish partner have CSI aka private health insurance? When did your British/Irish partner become incapacitated/unable to work? Did he work or was he self-employed before then?

See secret.simon's post above.

[irishsea]

When we entered a civil partnership 8 years ago we did so under the EEA Irish passport. We had absolutely no issues and it was a fast and painless process to get my first residence card and right to work.BTW I have lived in the UK 8 years.

Given that the OP has been in the UK for the past eight years, he would likely be covered by the McCarthy transitional arrangements. So, for the purpose of this thread, his partner's British nationality likely does not matter.

Did your British/Irish partner have CSI aka private health insurance? When did your British/Irish partner become incapacitated/unable to work? Did he work or was he self-employed before then?

She has lived in Northern Ireland all her life which has the NHS so private healthcare was never needed, but people in the republic of Ireland do pay for healthcare, not the north. She became unable to work around 5 years ago and was working until she had a break down and has suffered greatly since although she has been on an unemployment program for a few months now ( they help people who have physical and mental problems back into employment ) she was refused job seekers because i earned enough, in their eyes, to support us both and also refused ESA...applied for DLA also, dont get me started on that as I believe you need to be almost on your death bed before you get anything.

[chriskv1]

Ahh! I missed that. Sorry for spooking you irishsea! my bad.

[Richard W]

(Although pipped to the post by Secret.Simon, I'll still post my rebuttal as it has he links for those interested.)

I know they are allowed both British and Irish nationality. But as many others on this forum would tell you :

An EEA national is :
A national of an EEA State who is not also a British citizen;

I don't think that the home office knows that your spouse/partner has a British passport.
I'm afraid you're not eligible to be on the EEA route at all and should apply under the UK route.

As the residence card must have been applied before by April 2012 and was granted, Irishsea is covered in that respect by the McCarthy Transitional Arrangements (Immigration (EEA) Regulations 2016 Schedule 6 Regulation 9).

Your partner would only be considered to be eligible to sponsor you under the EEA rules if they only held an Irish passport and not a British one.

It is the citizenships and nationalities held, not passports held, that matters.

[irishsea]

My first residence card was granted in June 2012. I just dug through the paperwork and my first residence card application letter was 5th April 2012.

Other than this I am sorry guys but after the news and stress today I am starting to get lost.

I think I need to compose a letter to my local law office (was recommended a pro bono one) and take an hour to eat something today.

I will take another look afterwards,

Thanks all

[chriskv1]

@Richard:

Ah yes, When I said passport I did mean nationality. But since irishsea was referring to his/her partner's nationalities as passports, I didn't want to confuse him/her further and just kept referring to it as passports.

I do understand that it's technically wrong for me to do it.


Also, If Irishsea got his/her first RC only on June 2012 (after an application being made on the 5th of April), Doesn't that mean he/she is ineligible to qualify under transitional arrangements?
Or did the transitional arrangements cover people who applied for RC up until the 30th of April?

[Wanderer]

When we entered a civil partnership 8 years ago we did so under the EEA Irish passport. We had absolutely no issues and it was a fast and painless process to get my first residence card and right to work.BTW I have lived in the UK 8 years.

Given that the OP has been in the UK for the past eight years, he would likely be covered by the McCarthy transitional arrangements. So, for the purpose of this thread, his partner's British nationality likely does not matter.

Did your British/Irish partner have CSI aka private health insurance? When did your British/Irish partner become incapacitated/unable to work? Did he work or was he self-employed before then?

She has lived in Northern Ireland all her life which has the NHS so private healthcare was never needed, but people in the republic of Ireland do pay for healthcare, not the north. She became unable to work around 5 years ago and was working until she had a break down and has suffered greatly since although she has been on an unemployment program for a few months now ( they help people who have physical and mental problems back into employment ) she was refused job seekers because i earned enough, in their eyes, to support us both and also refused ESA...applied for DLA also, dont get me started on that as I believe you need to be almost on your death bed before you get anything.

Small point, in the South health care is free, via PRSI/USC docs/GP isn't, 60 Euro a pop, and many have private health care to 'jump the queue' as the free stuff is absorbed by all the Nackers etc sponging off the State, far worse here than in UK from what I've seen.

[irishsea]

@Richard:

Ah yes, When I said passport I did mean nationality. But since irishsea was referring to his/her partner's nationalities as passports, I didn't want to confuse him/her further and just kept referring to it as passports.

I do understand that it's technically wrong for me to do it.


Also, If Irishsea got his/her first RC only on June 2012 (after an application being made on the 5th of April), Doesn't that mean he/she is ineligible to qualify under transitional arrangements?
Or did the transitional arrangements cover people who applied for RC up until the 30th of April?

I was actually meaning they identify as Irish as they live in Northern Ireland and hold both passports. Sorry if I wasnt coming across clearly.

Also, Since I applied in April was I not covered as I cannot control how long it takes them to process it. Also in that link it says, prior to 16th July 2012, applied for an EEA family permit pursuant to regulation 12 of the 2006 Regulations. Does that not apply for my EEA residence card?

[Richard W]

My first residence card was granted in June 2012. I just dug through the paperwork and my first residence card application letter was 5th April 2012.

So, the relevant bit of the regulations is Sched 6 Reg. 9(3):

(a) OP believes he had the right of residence on 16 July 2012.
(b) On 16 October 2012, held an unexpired, uncancelled residence card.

Thus, if hthe partner was a qualified person from April 2012 onwards, her British citizenship is unnecessary.

The issue to be addressed is for how long his partner was a qualified person. Note also that the accumulation of 5 years residence starts from when they were in a civil partnership and the Irish partner was a qualified person, not from when the residence card was applied for or issued. Any consecutive period of 5 years will do, so the resolution will boil down to the availability of evidence.

The OP's right of residence and right to work is not lost because evidence provided in the application was insufficient, overlooked, or misunderstood, or because the caseworker did not understand the law or chose not to apply it. I know of no evidence that the OP's employer may fairly dismiss the OP for not having the requisite document - which is not to say that unfair dismissal or suspension will not happen. Eviction might be a problem if the OP is living in rented accommodation, and bank account, car and driving licence are at risk.

[irishsea]

I have my new right to work from this application that says I have the right to work till all appeals have been exhausted. The issue is I am working covering a maturity leave for 9 months which ends next month. Does this in fact leave me screwed as the only provider? My partner is now saying they will go against Dr's and try to find work even if it makes their mental health worse if it means they don't loose me.

I have, since I got my right to work never been without work even a day. Paid my dues, and now find if I am having my family threatened to be torn apart? I have not been home to the USA in 8 years just to show I want to be here. I have had grandparents die, aunts. I have a niece I have never met. But I wanted when this time came them not to have one reason to question why I had trips home. My partner is my world how can they just rip that apart after 8 years?

[secret.simon]

It seems that the OP is covered by the McCarthy Transitional arrangements. That means the British/Irish partner would still be treated as an EEA citizen for the purposes of the EEA Regulations.

However, it is worth remembering that the rights of EEA citizens to reside in and to sponsor family members is not unconditional. They must either be a qualified person or hold PR in the UK. I am not sure if a dual British/EEA citizen can hold PR under the EEA Regulations in the UK (as s/he is only treated as if an EEA Citizen for the purpose of the residence of the family members). Hence, I believe (I could be wrong) that such an dual British/EEA citizen (such as the OP's partner) must be a qualified person for all the time that their family members are resident in the UK, until the family member (in this case, the OP) acquire PR in their own stead.

In order for an EEA citizen to be a qualified person, s/he needs to be a worker, a jobseeker, a student or a self-sufficient person. The last two require the EEA Citizen and his family members to hold CSI aka private health insurance. NHS coverage is not sufficient for the purpose of being a qualified person. In the OP's case, as their British/EEA partner did not have CSI, it rules out the self-sufficient route.

The OP's partner can be considered a worker if some conditions are met.

5.—(1) In these Regulations, “worker or self-employed person who has ceased activity” means an EEA national who satisfies a condition in paragraph (2), (3), (4) or (5).
...
(3) The condition in this paragraph is that the person terminates activity in the United Kingdom as a worker or self-employed person as a result of permanent incapacity to work; and—

• (a) had resided in the United Kingdom continuously for more than two years prior to the termination; or
  (b) the incapacity is the result of an accident at work or an occupational disease that entitles the person to a pension payable in full or in part by an institution in the United Kingdom.

...
6.—(2) A person who is no longer working must continue to be treated as a worker provided that the person—

• (a) is temporarily unable to work as the result of an illness or accident;...

To the OP: Does your partner meet any of these requirements?

[Richard W]

However, it is worth remembering that the rights of EEA citizens to reside in and to sponsor family members is not unconditional. They must either be a qualified person or hold PR in the UK. I am not sure if a dual British/EEA citizen can hold PR under the EEA Regulations in the UK (as s/he is only treated as if an EEA Citizen for the purpose of the residence of the family members). Hence, I believe (I could be wrong) that such an dual British/EEA citizen (such as the OP's partner) must be a qualified person for all the time that their family members are resident in the UK, until the family member (in this case, the OP) acquire PR in their own stead.

I don't see anything in the regulation that would prevent being treated as a 'permanent resident' any more than preventing being treated as a 'qualified person'.

One possibility is that the OP's partner, for the purposes of the position of the OP, may have qualified for permanent residence as a child (although the right would not have come into effect until 2006). Nothing in Schedule 6 Paragraph 9 restricts 'Person P' to being the 'sponsor' of 'Person F'.

One problem is that the evidence to obtain the residence card seems to have been lost. It looks as though the case could depend on the evidence of national insurance contributions. I'm not sure if they are rebuttable 'proof'; I can conceive that the OP has the right of permanent residence but no right to a permanent residence card.

[secret.simon]

I don't see anything in the regulation that would prevent being treated as a 'permanent resident' any more than preventing being treated as a 'qualified person'.

(8) P will only continue to be regarded as an EEA national for the purpose of considering the position of F under these Regulations.

This sub-section seems to suggest that other provisions of the EEA Regulations would not apply to P (in this case, the OP's partner), a dual British/Irish citizen. Therefore, P cannot acquire PR under the EEA Regulations.

Also, Directive 2004/38/EC, which governs rules for acquisition of PR, specifically states that it (the directive) applies only to EEA citizens who reside in member-states of which they are not citizens. Therefore, EEA citizens resident in a member-state of which they are a citizen cannot acquire PR under the Directive.

[Richard W]

This sub-section seems to suggest that other provisions of the EEA Regulations would not apply to P (in this case, the OP's partner), a dual British/Irish citizen. Therefore, P cannot acquire PR under the EEA Regulations.

It wouldn't be real PR. It would be a virtual PR valid only for considering the OP's rights.

Also, Directive 2004/38/EC, which governs rules for acquisition of PR, specifically states that it (the directive) applies only to EEA citizens who reside in member-states of which they are not citizens. Therefore, EEA citizens resident in a member-state of which they are a citizen cannot acquire PR under the Directive.

The directive also governs the rules for right of residence. Schedule 6 Paragraph 9 is a voluntary addition to the rights of residence, because of the earlier mistaken treatment of everyone holding a non-British EU citizenship as an EEA national. Your argument surely also implies that the OP cannot possibly acquire PR, which we know is wrong.

I believe Directive 2004/38/EC Article 37 is also relevant:

The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive.

A narrow interpretation would say that the OP's residence card, as such, should have been rescinded and replaced by something different, for it granted the OP rights in other EEA countries to which she was not entitled. Oddly enough, this wouldn't directly apply to a permanent residence card, as by the directive it conveys no such rights.

However, the Home Office has not raised the issue of the OP's partner being British, so I think it should be ignored for now. The issue is rather the one of establishing what status the OP's partner would have if not British and advising on how to prove it.

[irishsea]

OK so it seems that this has gotten past the point? They have never questioned abouther Irish/British passports . It was the matter that I have supported us both the last 5 years due to her health.

If they cannot accept a certified doctors letters, letters from a government program she is in to help her with her mental health and denial letters from jobseekers saying she cannot be on it, then how can she be on it?

She cannot control her mental health, at least she has addressed it and is trying to get help and get her life back.

Feeling very frustrated today.