permission to appeal to first tier tribunal

[hayat89]

my history
I entered the UK in 2011 with student visa for 3 year.
in June 2012 meet my partner and start living together & registered with HMRC as couple.
July 2013 registered under UK law our marriage.
we live together till Aug 2015 & my partner filled the divorce April 2016 and we live separate and we finally get divorced( decree absolute ) in February 2017.
Apply for retain right of residence as non EEA spouse got refused on august 2017 as did not provide evidence as my spouse is having treaty right at the time of the divorce (20 february2017).
file the petition against the Home office decision and go to first tier tribunal and get the date in june 2018
on the day of hearing we provide all the evidence from my spouse employer which we have refusal but the judge pick another point as our marriage is not last 3 year before the proceeding start.
but on decision she admit we prove all the issue which home office raised and she is satisfied with that.
Now apply for permission to appeal in upper tribunal in july 2018.
Now i am already complete the 5 year under the EU spouse law( july 2013 to juy 2018)

my question is

how long first tier tribunal take for giving permission ?
if get the permission how long upper tribunal take ?
Do i need a hearing again for this ?
and how long it will take to get the date of hearing ?
can home office withdraw appeal as they don't have any issue because which issue they raised we already give evidence for that ?
can i get permanent residence if the appeal is granted ?

[Obie]

The point the judge pick up is a significant legal point. If the marriage had not lasted for 3 years, then unless the breakdown was due to domestic violence or you have a child together and there is a court order that access should happen in the UK, you will not qualify.

Seems you were a victim of poor legal advise.

[hayat89]

The point the judge pick up is a significant legal point. If the marriage had not lasted for 3 years, then unless the breakdown was due to domestic violence or you have a child together and there is a court order that access should happen in the UK, you will not qualify.

Thank obie
AS my lawyer apply for permission to appeal
she put as erred in law as it says in 10(5)d prior to initiation of proceeding for the termination of the marriage.as termination is on the day when you get the decree absolute.
2nd i already now complete 5 year under eea 15.1.b rule 5 year of residence.
if possible answer my other question about the time duration about the permission to appeal.

[Obie]

Prior to initiation of proceedings to terminate the marriage.

My interpretation of that and a the many caselaws is the date you start divorce with court. Initiation cannot be the date of conclusion of proceedings. The two terms are antonym or antithesis to each other. I think your lawyer is wrong.

He can pick a point that the Judge was not entitled to deal with it. But to say the judge was wrong in interpretation, will clearly not get you far.

Cannot qualify under 15(1)(b) as you have divorced. You would qualify under 15(1)(f) if you retained a right of Residence.

Unfortunately some of these lawyers do not know what they are doing. You should beware of them.

[hayat89]

Prior to initiation of proceedings to terminate the marriage.

My interpretation of that and a the many caselaws is the date you start divorce with court. Initiation cannot be the date of conclusion of proceedings. The two terms are antonym or antithesis to each other. I think your lawyer is wrong.

He can pick a point that the Judge was not entitled to deal with it. But to say the judge was wrong in interpretation, will clearly not get you far.

Dear Obie
as my lawyer put it in the case was only issue home office raised is the treaty right on the date of the decrease absolute.
lawyer put this judge is not entitled to deal with it but now judge already raised this issue that's why lawyer put it as the marriage is considered until the date of the decrease absolute because the marriage is is terminating law fully when you get the certificate before you are getting same right as the eea spouse having it. as courst is giving cooling off period(6 week) before issuing the decrease absolute.
as if you want to withdraw yo are still considered married.
Case diata vs land berlin.
mrs diata is separated from spouse and even where they intend to divorce later but on the duration of the divorce she get the treaty right as a spouse when she apply for permanent residence

[Obie]

Diatta is not applicable. You are not married any longer. You married ended before 5 years anniversary. Therefore I do not know what your lawyer is taking about, but regulation 15(1)(b) is not engaged.

Someone advised you incorrectly.

The judge acted unfairly in raising a new point, but your lawyer may be best pleased not to address it. The point he raised is correct. Those advising you should have advised you to mount a counter petition, and not rely on the petition she initiated in April 2016. The Petition should have been initiated after June 2016.

A competent EU adviser ought to have noticed that it will create problem.

[hayat89]

Diatta is not applicable. You are not married any longer. You married ended before 5 years anniversary. Therefore I do not know what your lawyer is taking about, but regulation 15(1)(b) is not engaged.

Someone advised you incorrectly.

The judge acted unfairly in raising a new point, but your lawyer may be best pleased not to address it. The point he raised is correct. Those advising you should have advised you to mount a counter petition, and not rely on the petition she initiated in April 2016. The Petition should have been initiated after June 2016.

A competent EU adviser ought to have noticed that it will create problem.

Dear Obie
that's what we appeal for as judge acted unfairly and the only reason HO raised is the treaty rights on the day of the decease absolute & rightly determined by the learned judge that the requirement of this regulation met.

1....(Those advising you should have advised you to mount a counter petition, and not rely on the petition she initiated in April 2016.)

my spouse put the application for the divorce and we get the decrease absolute in Feb 2017.
counter petition i did not get it on this point ?
that time i did not notice or any one guide me about this.

how long first tier tribunal take for giving permission as apply in july 18 now already 4 to 5 week nothing heard from tribunal after notice of receipt ?

if get the permission how long upper tribunal take ?

and how long it will take to get the date of hearing in upper tribunal ?

can home office withdraw appeal as they don't have any issue because which issue they raised we already give evidence for that ?

(A competent EU adviser ought to have noticed that it will create problem.
how to let EU adviser or he will know ?

[Obie]

Home Office are unlikely to withdraw their decision. The Judge has opened their eye to a point that they were not previously aware of.

In law the point is correct. You should have asked the lady to delay the divorce by 2 months, or refuse to sign in, and you pursue an alternate petition.

[hayat89]

[quote=Obie post_id=1671496 time=1534601475 user_id=36693]
Home Office are unlikely to withdraw their decision. The Judge has opened their eye to a point that they were not previously aware of.

In law the point is correct. You should have asked the lady to delay the divorce by 2 months, or refuse to sign in, and you pursue an alternate petition.

she is not willing to listen as when you separated both don't want to even talk.

as limited to my knowledge duration of the divorce proceeding still spouse is getting same right as they have before until the date of divorce finalise(legally separated) as he work as before and take all the benefit until the date of finalise.
that mean at the date of the proceeding start if they count as the termination of marriage then why spouse have the same right.
Ok should be fine lets see whats the tribunal decide.
but Home office only the issue of treaty rights they raised now we already sort that out.
if court give permission to appeal
how long we are looking for this all proceeding ?
from permission to appeal and hearing date if goes for hearing.

[Obie]

Problem is, on the date of the divorce, your marriage was under 5 years old, and therefore unless you are able to retain a right of residence, you will have no right under EU law.

Judge is correct in law.

[hayat89]

Problem is, on the date of the divorce, your marriage was under 5 years old, and therefore unless you are able to retain a right of residence, you will have no right under EU law.

Judge is correct in law.

Dear Obie
Thats what we are trying to prove that the marriage is last from july 2013 (marriage registered )to feb 2017
(date of decrease absolute) it is more then 3 year almost 4 year.
2nd thing i read in the same site if you are in court and you completed 5 year legally in UK you are eligible for ILR/PR ?
uk-tier-1-entrepreneur-visas/upper-trib ... 12717.html
as we already proof the right of residence. the only point is the date or proceeding or the date of the termination of the marriage as it is not clear in the EU law. as it mention in law proceeding start for terminate the marriage & marriage is only terminate when you get the final certificate of decrease absolute.

[Obie]

Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088 (20 April 2018)[/b]

The above case is the recent interpretation of the law and it does not assist your case.

(d) either—
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

However liberally i would like to read the law, it is difficult for me to read it in the way your lawyer is seeking to read it, without any reasonable person not looking stupid before a judge.

[hayat89]

Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088 (20 April 2018)[/b]

The above case is the recent interpretation of the law and it does not assist your case.

(d) either—
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

However liberally i would like to read the law, it is difficult for me to read it in the way your lawyer is seeking to read it, without any reasonable person not looking stupid before a judge.

Dear Obie
the judge put the same case as reference in my objection judge said.
"the appellant attended the hearing. at the start of the hearing it was confirmed that the issue was weather or not his former spouse working and exercising treaty rights at the date of the termination of the marriage. conform to biagazieva vs SSHD[2018]EWCA civ 1088 this date would be that of the commencement of divorce proceeding."
that's the point my lawyer is taking it forward.
and exlain it what the judge raised is not relevent in my case as the EU law has flaws as it is not clear the termination of the marriage.

[hayat89]

Dear Obie
I am unable to open the link as its has not found the contents in it.

[Obie]

I wish i can find more encouraging words for you, or tell you the law is not what it is. Unfortunately i cannot. How did they know when the divorce was initiated? You should not have put that in the bundle, better to have left it out, and only the Decree Absolute in the Bundle. That way judge will not have known the date of the initiation, and he would have had no justification in dealing with it, and will not have held it against you.

I have dealt with many retention of Residence case, and i can say your lawyer is clearly wrong on the interpretation of the law.

[Obie]

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1088.html

[hayat89]

Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088 (20 April 2018)[/b]

The above case is the recent interpretation of the law and it does not assist your case.

(d) either—
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

However liberally i would like to read the law, it is difficult for me to read it in the way your lawyer is seeking to read it, without any reasonable person not looking stupid before a judge.

Dear Obie
Please check the new family member of eea law.
https://assets.publishing.service.gov.u ... e-v3_0.pdf
as its say in 10(5) on page no 11

" Marriage or civil partnership: officially terminated
Once the marriage or civil partnership has been officially terminated, the non-EEA
spouse or civil partner, and anyone who was related to the EEA national sponsor by
marriage, must meet the requirements of regulation 10(5) in order to retain a right of
residence in the UK.
The relationship is considered to have been terminated on the date that the following
documents are issued:
• decree absolute (for marriages)
• decree of nullity (for marriages or civil partnerships)
• certificate of dissolution (for civil partners)"

[hayat89]

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1088.html

Dear Obie
please check the new law 10(5)

Marriage or civil partnership: officially terminated
Once the marriage or civil partnership has been officially terminated, the non-EEA
spouse or civil partner, and anyone who was related to the EEA national sponsor by
marriage, must meet the requirements of regulation 10(5) in order to retain a right of
residence in the UK.
The relationship is considered to have been terminated on the date that the following
documents are issued:
• decree absolute (for marriages)
• decree of nullity (for marriages or civil partnerships)
• certificate of dissolution (for civil partners)

https://assets.publishing.service.gov.u ... e-v3_0.pdf

[Obie]

Regulation 10(5)(d)(i)
To meet the conditions of regulation 10(5)(d)(i) the applicant must have:
• been married to, or in a civil partnership with, the European Economic Area
(EEA) national for at least 3 years immediately before beginning proceedings
for divorce, annulment or dissolution
• lived in the UK with the EEA national sponsor for at least one year during the
time of their marriage or civil partnership

That is what you failed on. I do not want to say this, but i am getting increasingly concerned, that the lawyer is trying to milk you of more legal fee. Deep down, and if it is a competent person, he or she will be aware of the law.

[hayat89]

Regulation 10(5)(d)(i)
To meet the conditions of regulation 10(5)(d)(i) the applicant must have:
• been married to, or in a civil partnership with, the European Economic Area
(EEA) national for at least 3 years immediately before beginning proceedings
for divorce, annulment or dissolution
• lived in the UK with the EEA national sponsor for at least one year during the
time of their marriage or civil partnership

That is what you failed on. I do not want to say this, but i am getting increasingly concerned, that the lawyer is trying to milk you of more legal fee. Deep down, and if it is a competent person, he or she will be aware of the law.

Dear Obie
Thanks for your time
BUt my point is if the date of the The relationship is considered to have been terminated on the date that the following
documents are issued
decrease abcolute.
then how come my marriage is not 3 year as decree absolute is issue nearly 4 year after the marriage.
as in my refusal said the wording.
10(5)d (i) said prior to initiation of proceeding to terminate of the marriage. the marriage had lasted for at least 3 year. has resided in the uk for at least 1 during its duration.
i think i am in a big mess..

[Obie]

According to the law, the relationship must have ended by means of a divorce. That is one requirement, and you clearly mean that, as your relationship ended by divorce.

However the other requirements which is that prior to the initiation of your divorce, the marriage ought to have lasted for 3 years is unmet. That requirement is unmet, as divorce proceeding started before your marriage had lasted 3 years.

Therefore you meet one of the requirements, but not the other one.

[hayat89]

According to the law, the relationship must have ended by means of a divorce. That is one requirement, and you clearly mean that, as your relationship ended by divorce.

However the other requirements which is that prior to the initiation of your divorce, the marriage ought to have lasted for 3 years is unmet. That requirement is unmet, as divorce proceeding started before your marriage had lasted 3 years.

Therefore you meet one of the requirements, but not the other one.

dear Obie
Thanks for you quick answer
what you think about the duration of the permission to appeal they will take ?
as i appeal in mid july when i an expecting to hear from the tribunal ?

[hayat89]

Update
Got permission to appeal in mid of oct.
Got hearing letter after 1 week for nov end.
hope home office withdraw appeal and issue me the PR.

[Obie]

Wish you all the best. But my concerns about your case continues to remain. The date divorce proceedings were initiated is before the court, and that cannot be hidden.

Being granted permission is a progress, but it does not guarantee success, and in my experience Home Office will not withdraw, they are likely to rely on what that judge had said.

[hayat89]

Wish you all the best. But my concerns about your case continues to remain. The date divorce proceedings were initiated is before the court, and that cannot be hidden.

Being granted permission is a progress, but it does not guarantee success, and in my experience Home Office will not withdraw, they are likely to rely on what that judge had said.

Thanks obie
But in permission of appeal allowed judge said as ftt judge is not right in this matter.
and there is error of law that's why they allowed my appeal.
hope for the best hearing in in 1 month lets see how it goes.
if home office think to withdraw what you think when they will 1 or 2 week before or they will on the hearing day as well can withdraw ?