LPR refusal- must you have RtR confirmed prior to applying?

[reginaserpa]

Hi all,
I have been refused LPR and am writing to see if I have grounds for an appeal or reconsideration.

I am a non-EEA spouse of an EEA citizen. I am American, he is American and has an Irish passport. He has a registration certificate and I have a residence card to evidence our Right to Reside in the UK.

My application for LPR was refused on the basis that my husband originally entered the UK on a Tier 4 visa and therefore we do not satisfy the 5 year requirement for an Irish national to be in the UK exercising Treaty Rights in order to be eligible for LPR. Below are some of the facts of our (somewhat complicated) case:

My husband is an American citizen with an Irish passport who entered the UK under a tier 4 visa in July 2009. This expired on 30/11/2013​

I am an American citizen (no EU passport) and entered the UK as a dependent partner of tier 4 student in September 2009.

At the time my status as dependent partner contained no work restrictions so on 22/07/2013 we obtained a registration certificate (husband) and residence card (me) on the basis that he was exercising his Treaty Rights during the 3 year period from January 2011 - January 2014 through a combination of being a student and being economically self-sufficient by virtue of my wages.

The joint LPR application (which was refused) was on the basis that he was exercising his Treaty Rights from January 2012 through January 2017 through a combination of him being a student and being economically self sufficient on my wages.

The reason for refusal focussed on my husband's attendance at University from 2009 through to 2013 on the basis that the evidence we submitted says he was enrolled under a tier 4 visa during this period- the refusal letter says he cannot be exercising his Treaty Rights as a student because during the 2009 through 2013 period he was on the Tier 4 visa.

But, we were granted the residence card/registration certificate on 22/7/2013 (partly) on the basis that he was a student between 2009 and 2013 (which was under the Tier 4 visa), so I don't understand how they can make this decision now for LPR but not take this position with residence card/registration certificate before.

The Home Office on their decision to refuse seems to be using 22/7/2013 as the start date for when my husband started using his Treaty Rights and therefore states that we are not eligible until 22/07/2018 to apply for LPR.

I think I have grounds for an appeal on the basis that the residence card / registration certificate in and of itself is evidence that he began to exercise his Treaty Rights at least 3 years prior to the issue date (ie from 22/7/2010 onwards) given that his Right to Reside was confirmed on 22/7/2013.

Does anyone know if it is it the point at which your Right to Reside is confirmed that you start your qualifying period for LPR (ie do you require a residence card/registration certificate in order to apply for LPR), or is it the point that you begin to exercise your Treaty Rights that you begin your qualifying period? I would argue our qualifying period for LPR should start at 22/7/2010 because the date of confirmation (of having had a RtR for 3 years) was 22/7/2013.

Any advice you can offer in this matter would be immensely helpful. I understand I have 14 days to make an appeal so I am treating this as a matter of urgency. I have just started a 1 year lectureship at a Scottish University and am very concerned that my residence card is due for renewal on 22/7/2018- which is exactly the time when my contract ends and when I will need to evidence my eligibility to work in the UK in my search for work. I cannot apply for status in my own right because I do not satisfy the UK income threshold of £35k. The EU route as a non-EEA spouse of an EEA citizen is my only option.

Many thanks for reading.
Best,
Regina

[secret.simon]

Right to reside has nothing to do with your situation. It is for people who entered the UK as spouses of EEA citizens, but that spousal relationship was later terminated.

When did your American/Irish husband acquire his Irish citizenship? Was he born Irish? Or did he acquire Irish citizenship through registration on the Foreign Births Register later on? If so, when was he registered on the Foreign Births Register?

As your husband and you exercised treaty rights by being a student and being self-sufficient, were both you and he covered by CSI (aka private health insurance)? That is a requirement for both students and self-sufficient persons.

BTW, what is "LPR"? Your American/Irish husband would apply for a DCPR and you for a PRC. To the best of my knowledge, there is no such application as a LPR.

[reginaserpa]

Hello, many thanks for your kind response. I had (wrongly) thought that residence card confirmed Right to Reside but from what you write it seems it confirms that husband was exercising treaty rights, is that correct?

Yes, it is the case that husband obtained an Irish passport AFTER having entered the UK on Tier 4. In 2010 he was placed on the Foreign Birth registrar and then received passport. As far as I understand, the Foreign Birth registration recognises that he was born an Irish citizen by virtue of ancestry and therefore I thought the timing at which point he became an Irish citizen was immaterial to our case here because the piece of paper effectively says he was a citizen at birth (though confirming that at a later date).

Yes, we have CSI- that was a requirement of the residence cards/registration certificate and I understand that it is now the case that you must have this coverage retrospectively at the point of applying for Legal Permanent Residency. This was not suggested as a reason for refusing permanent residency.

I am using LPR as short hand for Legal Permanent Residency, I know that there is no application called LPR, I meant to have said that his application was for DCPR and mine PRC.

I'm not sure what to do at this stage. I suspect I need legal advice. I have read what is involved with filing an appeal, and unlike the original application, i'm not sure this is something I can do without legal assistance. ALso, I cannot find what the cost is for filing an appeal?

best
Regina

[secret.simon]

Yes, it is the case that husband obtained an Irish passport AFTER having entered the UK on Tier 4. In 2010 he was placed on the Foreign Birth registrar and then received passport. As far as I understand, the Foreign Birth registration recognises that he was born an Irish citizen by virtue of ancestry and therefore I thought the timing at which point he became an Irish citizen was immaterial to our case here because the piece of paper effectively says he was a citizen at birth (though confirming that at a later date).

By registering on the Foreign Birth Register, your husband acquired Irish citizenship from the date of his registration on that register, not from date of birth.

Therefore the earliest he could have exercised treaty rights in the UK would have been from the date of his registration.

As you have had CSI throughout your stay in the UK, your husband has been exercising his treaty rights in the UK since his registration, even if he also held a PBS (Points Based System) visa under the UK Immigration Rules simultaneously. If he was successfully exercising treaty rights, by being a student with CSI, he is automatically exempt from the UK Immigration Rules (See Immigration Rule 5).

I suggest that your best option would be to reapply for PR (not LPR, please let's stick to known acronyms), summarising the contents of this thread; that as an Irish citizen exercising treaty rights since 2010, your husband is exempt from the UK Immigration Rules, even if he had a Tier 4 visa and therefore he should be issued with a DCPR and that as his spouse staying with him in the UK, you should likewise be issued with a PRC.

As your husband has been exercising treaty rights since 2010, your date of acquisition of PR should be backdated to 2015 (the fifth anniversary of his acquisition of Irish citizenship). Thus, you and he should be able to apply for naturalisation, would you wish to, directly after your DCPR/PRC is issued.

[reginaserpa]

hi again, thank you for this suggestion- when I apply for PR again I will include the Foreign Birth registration as evidence of husband being except from UK immigration rules (starting from the date he was on registrar).

Most helpful!

There is, however, one problem that may be cause to refuse a new PR application. When we applied for residence card, the rules at the time were such that you only needed CSI at the point of applying (rather than proving you had coverage over the full qualifying period).

I have a one year gap in my CSI coverage between 1/6/14 and 24/6/15.
I purchased CSI for the registration card which covered us from 02/06/2013 to 01/06/2014.
I then realised the rules have changed requiring retrospective coverage over the qualifying period so I the again purchased CSI in 24 June 2015, which is due for renewal in June 2018.

being that he was a student/economically self-sufficient during this 1 year gap in coverage, will our application fail? Does that then mean we are not eligible to apply for PR until 24/6/2020 only due to that gap? If this is the case, should I reapply for a residence card in June 2018 (my current one is due for renewal 22/7/18) instead of apply for PR?

Thanks again
regina

[secret.simon]

When we applied for residence card, the rules at the time were such that you only needed CSI at the point of applying (rather than proving you had coverage over the full qualifying period).

The rules did not change. The RC and DCPR/PRC applications have different requirements.

The Residence Card certifies (it does not grant, it merely certifies a pre-existing state - almost tempted to say "pre-existing condition" ) that the applicant's (you) EEA citizen spouse is exercising treaty rights at that point in time. So, if your husband is an EEA citizen and demonstrated proof that he was exercising treaty rights on the date of application for your Residence Card, you would be issued with an RC.

The requirement for PR (for both EEA citizens and non-EEA family members) is that the EEA citizen spouse has exercised treaty rights for any five continuous years. If the CSI stopped for a year, so did the exercise of treaty rights and so the clock for acquiring PR was reset to zero.

So, in your case, the PR clock would only have resumed when your CSI did, in 2015. So, as you mentioned, you would acquire PR in 2020.

However, if both your husband and you have an existing CSI policy in place, then yes, you can reapply for a Residence Card.

[reginaserpa]

that is very clear, Simon. One final curveball and I think I will be very clear on how to proceed- the period where we do not have CSI (June 2014 to June 2015) my husband was working. He was teaching a few hours per week as part of his PhD studentship- but I suspect that his full-time student status will be taken as grounds over the part-time worker status, is that correct? Also, he receives a tax-free stipend as part of his studentship package- can this be deemed as 'working'?

[secret.simon]

I think I will be very clear on how to proceed

Not really. Your last post muddies the waters considerably.

He was teaching a few hours per week as part of his PhD studentship

That is tricky. The criteria for work as exercising treaty rights is that it must be
a) genuine and
b) effective
and must not be
c) marginal or
d) ancillary

To make things more complicated, there are no specific definitions for these terms. Home Office caseworkers tend to use the MET (Minimum Earnings Threshold) as a guideline to evaluate whether the work is genuine and effective. That can be interpreted broadly as, did your husband make Class 1 (compulsory) National Insurance contributions for the period in question?

If your husband was earning more than the MET for the period that the CSI had lapsed, then his (and your) PR clock may not have stopped at all (you are allowed to mix-and-match various types of exercise of treaty rights, provided they add up to five continuous years) and the two of you acquired PR in 2015 (acquisition of PR under EU law is automatic and is not a grant of the Home Office).

On the other hand, if your husband earned less, the earlier interpretation (of PR in 2020) will likely stand.

Stipends do not count as there is no work/economic activity involved.

[reginaserpa]

thank you for the link, I have had a look and doubt he can meet the £7,755 threshold. That is disappointing.

I'm assuming that I cannot rely on the section in the letter which states 'that the earliest date that you could potentially be entitled to permanent residence as the direct family member of x, provided that he continues to exercise Treat rights as an EEA national, is 22 July 2018', as evidence of that my application was fine if it were not for this one reason for refusal. I am assume they do not need to investigate all the reasons for refusal, but just give you one.

Am I eligible to apply for a Residence Card now, or must I wait until June 2018 when I can document continuous CSI coverage for a 3 year period? I am very concerned about my current residence card being up for renewal on 22/7/2018.

thank you again for all your suggestions, you have no idea how helpful this all is.
best
Regina

[secret.simon]

I'm assuming that I cannot rely on the section in the letter which states 'that the earliest date that you could potentially be entitled to permanent residence as the direct family member of x, provided that he continues to exercise Treat rights as an EEA national, is 22 July 2018'

Correct. That letter states one (incorrect in my opinion) reason for them to reject your application. But they can reject you for other (valid) reasons in a subsequent application.

Am I eligible to apply for a Residence Card now

As mentioned above, you can apply for a Residence Card at any point in time that your husband is exercising treaty rights. It merely certifies that the EEA Citizen is exercising treaty rights on the date of application and that you as a family member of such an EEA citizen can reside in the UK. The Residence Card itself does not confer any rights of itself and you would lose the right of residence in the UK if your husband ceased to exercise treaty rights in the UK, even if you hold a valid Residence Card.

thank you again for all your suggestions, you have no idea how helpful this all is.

You are welcome. Please feel free to ask further questions in this thread.

[reginaserpa]

in your opinion (and I do see in your footer that this should not be taken as legal advice), is it worth appealing this decision to refuse on the grounds given in the letter? Or request a reconsideration?

I realise it is a total punt given that my application is likely to fail on the CSI grounds, but it sounds like the reason given for refusal (you can only appeal on the reasons given, I can imagine) is incorrect. If it is incorrect, I want to challenge it even if ultimately it would not result in a reversal due to some other (unstated) reason. Is this unwise or a waste of time/money?

[secret.simon]

I'll leave that for others to answer

I am not sure what can be gained from swapping one reason for refusal for another, apart from a personal glow from a sense of being correct.

[reginaserpa]

haha that may be very true. I cannot see anywhere where the cost of appeal is, but I will dig around. I spoke to a lawyer and do not think it is worth the £300 consultation fee but if the appeal fee is somewhere closer to the cost of the PR application, then I might just take my chances knowing full well that the odds are not in my favour.

many thanks again, you are very kind to be offering such support to a stranger in need.

best
Regina

[secret.simon]

You have 14 days to appeal after the date of your decision.
If you apply after the deadline, you must explain why - the tribunal will decide if it can still hear your appeal.

It costs:
£80 without a hearing
£140 with a hearing

Apply online for an appeal.

[Richard W]

Right to reside has nothing to do with your situation. It is for people who entered the UK as spouses of EEA citizens, but that spousal relationship was later terminated.

You mean "retained right of residence".

BTW, what is "LPR"? Your American/Irish husband would apply for a DCPR and you for a PRC. To the best of my knowledge, there is no such application as a LPR.

This is correct. They do not apply for PR, as you later imply, unless a grant of one of these documents in full knowledge of the circumstances to someone who does not have PR actually grants PR.

[reginaserpa]

I'm assuming that I cannot rely on the section in the letter which states 'that the earliest date that you could potentially be entitled to permanent residence as the direct family member of x, provided that he continues to exercise Treat rights as an EEA national, is 22 July 2018'

Correct. That letter states one (incorrect in my opinion) reason for them to reject your application. But they can reject you for other (valid) reasons in a subsequent application.

I have had a closer look at my husband's refusal letter, which specifically looks at the CSI issue, and, interestingly, the Home Office did accept his position as a PhD student on a paid stipend as being a worker. Is says the following:

'you have demonstrated that you exercised your Treaty rights as a student from 22 July 2013 to the time when you became employed on 15 January 2014 with the University of X and then with the University of Y where you remain employed at the time of this application.'

The only reason they are taking the start of exercising Treat Right at 22 July 2013 is because that was when the registration certificate was issued. I can argue that this should not be the date used on the basis of EU nationality because of being registered on the foreign birth registry in 2010 (and provide evidence of the certificate).

But if I am able to successfully argue this point, then they will look at him being a student and then see when there was CSI coverage prior to 22 July 2013. Our CSI coverage starts 2/6/2013. Does this then mean we are not eligible for PR until 2/6/2018? And if so, I cannot re-apply for PR until after that date?

I'm trying to figure out how to resolve my problem when my RC expires in July 22 2018- if it makes sense to apply for RC renewal now (so that I'm all but guaranteed not to have my status lapse, or if I should risk waiting and apply again for LP in June of 2018. Assuming it takes 6 months or so to make a decision, that could potential mean I don't have any documentation saying I have the right to work after 22/7/18 through to the end of that year thereabouts. Could be a major problem with the job hunt when my contract ends in July 2018

[Richard W]

The only reason they are taking the start of exercising Treat Right at 22 July 2013 is because that was when the registration certificate was issued. I can argue that this should not be the date used on the basis of EU nationality because of being registered on the foreign birth registry in 2010 (and provide evidence of the certificate).

15.—(1) The following persons acquire the right to reside in the United Kingdom permanently—

(a)an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b)a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
...

There is nothing there about actively asserting EU rights.

But if I am able to successfully argue this point, then they will look at him being a student and then see when there was CSI coverage prior to 22 July 2013. Our CSI coverage starts 2/6/2013. Does this then mean we are not eligible for PR until 2/6/2018? And if so, I cannot re-apply for PR until after that date?

I'm trying to figure out how to resolve my problem when my RC expires in July 22 2018- if it makes sense to apply for RC renewal now (so that I'm all but guaranteed not to have my status lapse, or if I should risk waiting and apply again for LP in June of 2018. Assuming it takes 6 months or so to make a decision, that could potential mean I don't have any documentation saying I have the right to work after 22/7/18 through to the end of that year thereabouts. Could be a major problem with the job hunt when my contract ends in July 2018

If the EEA Regulations were to stay in place (and my reading of the 'Grand Repeal Bill' is that on Brexit they change from regulations to full blown statute law!) , I would recommend applying for RC renewal now. If the government were competent, you might be able for settled status on the basis of 5 years residence before you qualify for permanent residence, but this change apparently depends on a new immigration law, which has yet to be presented in draft form.

It is always possible that the need for students to have CSI will be removed, but until then, 2013 is the start date.

[reginaserpa]

thanks to all for suggestions for my situation. I've decided to appeal the PR refusal, which if unsuccessful, then I will renew my RC- which will have to wait a few months because I don't think the Passport Checking service is available for RC applicants (and I need my passport for travel already booked to USA). Then will try again for PR when ever HO says I'm eligible for. I've copied my appeal below, to me it seems straightforward, but who knows the decisionmaker is likely to take a different position.

The Reasons for Refusal letter (dated 17/8/2017) state that my sponsor (x) has been exercising their Treaty rights as a student from 22 July 2013, and as a worker from 15 January 2014 to present, and therefore not eligible to apply for Permanent Residency until 22 July 2018. The reason stated for the date of 22 July 2013 being considered as the start of the Qualifying period for permanent residence is the date at which x was issued a Registration Certificate, and that prior to this date he cannot rely on The Immigration (European Economic Area) Regulations 2016 (the Regulations) to apply for permanent residence as an American Citizen with a student visa (issued 10 July 2009).

I believe it was wrongly decided to consider 22 July 2013 as the date in which my sponsor began to exercise his Treaty rights, and argue in this appeal that x instead began to exercise his Treaty rights as an Irish National on 25 January 2011 when he was registered into the Republic of Ireland's Foreign Births Entry book and therefore eligible to apply for permanent residence starting from 25 January 2016 onwards. As a non-EEA spouse, I believe I satisfy the qualifying period for permanent residence as my sponsor has in fact exercised his Treaty rights in the UK for a continuous period of five years from 25 January 2011 until the present, and therefore can rely on The Immigration (European Economic Area) Regulations 2016 (the Regulations) to apply for permanent residence.

To support this appeal I am attaching a copy of the Certificate of registry for x (DOB: x) in the Foreign Births Entry Book issued by the Consular Office of Ireland at Edinburgh on 25 January 2011.

[secret.simon]

Seems a reasonably clear letter. You could put in a sentence or two to the effect that as an EEA citizen exercising treaty rights, his right of residence under EU law supercedes the Tier 4 visa, which is why the period of exercising treaty rights needs to be backdated to the acquisition of Irish citizenship and proof of exercising treaty rights.

my reading of the 'Grand Repeal Bill' is that on Brexit they change from regulations to full blown statute law!)

You may find this post on the PublicLawForEveryone blog interesting, especially Questions 7 to 9. Please direct any questions you may have on these points to the blog, not this forum.

[Richard W]

I think that the phrase "exercising treaty rights" should be avoided. It invites the response that the OP's husband was in practice benefiting from his visa. The wording should rather echo Regulation 14(1) on the extended right of residence:

"14.—(1) A qualified person is entitled to reside in the United Kingdom for as long as that person remains a qualified person."

The point is that they were entitled to reside as a result of his being an Irish citizen. Whether he was asserting that right, as opposed to any other right or permission, is immaterial. This right did not supersede the Tier 4 visa; it made it redundant.

Note that there are cases where leave to remain is more useful than an enforceable EEA right. We have one poster who is planning to apply for a Tier 2 visa so that he is not dependent on his durable partner. We don't want to encourage the Home Office to claim, if the relationship fails, that time with the visa but during the relationship does not count under the Immigration Rules because he had been granted a right under the EEA regulations.