HELP PLEASE! RESIDENCE CARD REVOKED

[alilou]

Hello!

I would need some help as my residence card has been revoked and my passport hold at Gatwick airport.

I am an Algerian citizen and in April 2004 I married a French citizen. In March 2007 I have got my residence card valid until March 2012 (after the refusal of my first application).

In 2008 I have started to have problems with my wife and in April 2009 I got the Decree Absolute. In January 2009 I have applied for a retained right of residence. In November 2009 I received letter from HO asking me if I wished to continue with my application as my residence card was still valid until 2012. I have instructed my solicitor to go ahead but in November 2010 (after almost 2 years waiting) they refused my application.

I have appealed and it was allowed. In March 2011 I received my residence card valid until March 2015. However, the HO sent me the wrong covering letter stating that I was still dependent from the EEA national. I have started to send complaints to them myself and in June 2011 I have received the correct letter stating that I have retained the right of residence.

In January 2012 I wrote again to the HO as I thought that they were supposed to issue a permanent residence instead of 5 years residence card. They have checked my past applications and they have revoked my current residence card as they found out that my ex wife was not exercising treaty rights in the UK as no PAYE records were found in her name and her NINO does not relate to her but to a different individual.

My solicitor applied for an appeal and the hearing date is in two weeks. However today I had a meeting with my solicitor and he said that unless I prove that my ex wife was paying taxes the appeal will be unsuccessful.

Can somebody help me?

1. According to HS Syria 2001 Case law, if HO revokes a residence card before its validity, does it fall on her to justify its revocation?

2. The HO made so many mistakes previously (asked me if I wanted to continue with my application after divorce although my residence card was valid until 2012....but they were supposed to proceed straight away as my circumstances changed....then they gave me wrong covering letter with my new residence card instead of confirming that I have retained the right of residence.....and then they took more than 6 months to give me the residence, almost 2 year the last time.....and in their last refusal letter the dates of my applications are completely wrong......)
Can the solicitor use the above in my favour during the appeal?

3. According to Amos 2011 Case law, can the HO still require to check that my ex wife was exercising treaty rights until date of divorce?

4. Since 2009 I have been living with an Italian citizen and we have a 20 months old baby. Can I make a new EEA2 application with her although we are not married? Should the HO make a decision within 6 months or can it take longer because we are not married?

5. As the UK border took my passport, can I still get married with my UK driving licence?

I really need your help asap as my hearing date is in two weeks time and by the end of the month I need to tell the solicitor whether go ahead with the appeal or just leave it and make a new application with my partner.

Thanks a lot

[EUsmileWEallsmile]

How was your ex-wife exercising treaty rights? Was she working?

[alilou]

yes, she was working as shop assistant/cleaner....I have provided her payslips, P60s and letters from employers until Novemebr 2010 when I had the appeal against the refusal from the HO.

However, they are now saying that those documents were not genuine as no PAYE records have been found and her NINO was related to someone else.

Please note that her annual salary was always below the tax free allowance and therefore no taxes were due, although in some of her payslips it was shown taxes deducted.

Can the HO check the above with HMRC?

Thanks a lot

[thsths]

However, they are now saying that those documents were not genuine as no PAYE records have been found and her NINO was related to someone else.

Well, I guess the key question is whether they are right. It does not make a lot of sense, since your wife had the right to work, but it is possible that someone made a mistake.

Can the HO check the above with HMRC?

Of course they can - they are just verifying your documents.

And at least you have another option. It may be easier to start a new application with your new family. Getting married would not be easy, but it is not essential either.

[Obie]

I think you have a good chance of success based on the previous allowed appeal.

I dont believe a futher appeal should be pursued. It will complicate matters and possible give legitinacy to UKBA unlawful act of properly implementing the previous one.

[alilou]

Thanks a lot for your prompt replies!

However, Obie it is not really clear to me your concept.

You are saying that my appeal could be successful; however,

"I dont believe a futher appeal should be pursued. It will complicate matters and possible give legitinacy to UKBA unlawful act of properly implementing the previous one."

....what does it mean?

If I go ahead with the appeal due in about 2 weeks, shall I prove that the HO was wrong or do they have to show the evidence that the NINO is related to a different individual?

Could the determination of the judge in the first appeal be reverted and decided that I was not entitled to any of the previous residence cards issued to me because I did not satisfy the 2006 Regulations?

Thanks

[Greenie]

Do you mean a further application shouldn't be pursued?

I think you have a good chance of success based on the previous allowed appeal.

I dont believe a futher appeal should be pursued. It will complicate matters and possible give legitinacy to UKBA unlawful act of properly implementing the previous one.

[Obie]

I mean a further application should not have been pursued.

The first tribunal's Decision was binding on UKBA. They did not appeal it. The had ample opportunity to check the authenticity of the documents provided then.

OP's appeal was allowed and he should then had been issued with a PR.

The cannot circumvent the previous judicial decision in this manner. It is improper and unlawful. There was no need for a further application to be made.

OP applied for a PR and his appeal was allowed.

In any case, with the new application, the issue of his ex treaty rights should not have been brought up.

This statement should not be interpreted as me condoling any alleged fraudulent act in any way or manner.

[EUsmileWEallsmile]

alilou,

Let me get this right...

You've made at least three applications and you've had trouble with them all. I have to say, all this is rather strange.

1. Your original residence card in and around 2007 when you were married to the French national (you appear to suggest that this was initially refused).
2. A subsequent residence card in 2009 for retained rights of residence was also initially refused, but granted on appeal.
3. A separate application for permanent residence in 2012, which was refused on the grounds that your ex-wife did not work. This is subject of an ongoing appeal.

While the above was going on, your passport was retained and card revoked when presenting yourself at the border.

You state that your ex-wife worked. It is possible that there has been a mix-up in employer records. You state that you have P60s and the like. If your ex-wife worked in good faith and was issued these for work actually done, then you should qualify.

I think you need to work a little harder with your solicitor and be completely open and frank with them if you want them to be able to help you (I'm not suggesting that you are not of course).

[Greenie]

I mean a further application should not have been pursued.

The first tribunal's Decision was binding on UKBA. They did not appeal it. The had ample opportunity to check the authenticity of the documents provided then.

OP's appeal was allowed and he should then had been issued with a PR.

The cannot circumvent the previous judicial decision in this manner. It is improper and unlawful. There was no need for a further application to be made.

OP applied for a PR and his appeal was allowed.

In any case, with the new application, the issue of his ex treaty rights should not have been brought up.

This statement should not be interpreted as me condoling any alleged fraudulent act in any way or manner.

i disagree with you on this Obie and i think you may have misunderstood what the op has said. According to his original post he did not apply for permanent residence in 2009 he applied for retained rights of residence-this was the subject of the successful appeal and this appeal was implemented because he was subsequently issued a residence card albeit initially with the wrong covering letter. It appears he may then have applied for permanent residence although this is unclear-alternatively he wrote to ukba stating they should have granted him pr.

If new information has come to light suggesting that the op was not entitled to the residence card then it is open to the ukba to make a decision to revoke the card. If the op is able to prove his wife was genuinely working then he should be successful.

[Obie]

With all due respect, i don't seem to agree with you on this either.

I think we will have to take this step by step.

According to the OP he married in April 2004 to this french national, and assuming he and his wife has been living in the UK since that period, he qualified for PR in 2009, when he made an application for Retention of Residence.

Going by his post i think this might be a correct assessment, although i am open to correction. He received his Residence card in March 2007 following a previous refusal, so i assumed he might have applied shortly after marriage.

Regulation 10(8) states that a person with a Right of Permanent Residence cannot retain their right of residence.

When his appeal was allowed in 2011, i am sure the judge must have accepted that since his marriage he has been living with his wife who was exercising treaty rights in the UK during this relevant period, and hence he is entitled to the document he applied for in 2009 and up to the date of the Judges decision in 2011. Therefore there is no doubt in my mind that he should have been issued with a PR, as the UKBA must have been aware of Regulation 10(8) in any event.

The UKBA too agreed with this and issued a Residence Card sometime in the Summer of 2011. This closes the issue of his wife in my view. When he made a next application, which i don't think he was required to make, the only issue for examination, was whether or not he can be classified as a qualified person, as if he was an EEA national. The issue of his wife ought not to have been investigated or brought up. They have had nearly 7 years to do this.

Now let us come to the forged document aspect. Firstly documents were provided to the UKBA prior to the 2007 refusal and issue of Residence Document, and prior to the refusal and issuance of residence card in 2011. On this occassion there was no allegation of fraud by the HO. They must have had their misgivings about the document, which is why i believed the application was refused, andi am sure the judge must have found those misgivings unsubstantiated on both occassions. Now they are seeking to reopen the case again, when the OP has been divorced for over 3 years, possibly no contact with the wife, and he has a right of Permanent Residence, which cannot be revoked according to community Law, except absence of 2 consecutive years.

The have failed to discharged the burden, which in my view is more higher than balance of probabilities, or at least on a higher scale of balance of probabilities in any event.

It is trite that if a person wins his or her appeal following an allegation which the SOS was unable to substantiate, then it is not open to them to revoke on the same reason again. Essentially they seem to have had their day in court and basically blew it. This is if their allegation is correct.

No regards was had to HS, as OP correctly pointed out, which states the correct steps that should be taken in these cases.

[Greenie]

Sorry it was me misreading-i read that they married in march 2007. However as you have pointed out the op does not confirm if he and his wife were living in the UK in April 2004 and if she was exercising treaty rights at that point.

Without knowing why exactly the previous applications were refused i don't think it can be said that the ukba is going behind the tribunals decision as they implemented teenage the decision by issuing a residence card over a year ago. If new information has come to light suggesting that the op was not entitled to the residence card then it is open to them to make the decision to revoke. I assume that the issue with the Nino is a new one but perhaps this is incorrect.

[alilou]

Thanks for your replies.

I just wanted to clarify some points.

I made my first application soon after my marriage in 2004 which was refused and then in 2006 it was accepted and my first RC was issued.

Then my initial application for the retained right of residence was refused but allowed after appeal.

So 2 out of 3 applications were refused.

The first tribunal's Decision was binding on UKBA. They did not appeal it. The had ample opportunity to check the authenticity of the documents provided then.

OP's appeal was allowed and he should then had been issued with a PR.

The cannot circumvent the previous judicial decision in this manner. It is improper and unlawful. There was no need for a further application to be made.

OP applied for a PR and his appeal was allowed.

In any case, with the new application, the issue of his ex treaty rights should not have been brought up.

That was my point with my solicitor.....but he said that I would need an accountant to prove that my ex wife documents are genuine and without that I will loose the appeal. Is it true? Do I have to prove that?

Unfortunately I do not have the refusal letter of my first application, but in the judge determination it is summarised the reasons of refusal of my application for retained right of residence and it is stated that I did not provided any evidence that my ex wife was exercising treaty right at the point of divorce…..however the HO is now saying that they have refused my applications because they were not satisfied of the authenticity of the documents provided…..which is not true at least for the second application….

Can this be used in my favour during the appeal?

If new information has come to light suggesting that the op was not entitled to the residence card then it is open to the ukba to make a decision to revoke the card. If the op is able to prove his wife was genuinely working then he should be successful.

I have never made any application for PR but I have just enquired the HO as I thought I was entitled to PR, and I have never submitted any further documentation.

Regulation 10( states that a person with a Right of Permanent Residence cannot retain their right of residence.

When his appeal was allowed in 2011, i am sure the judge must have accepted that since his marriage he has been living with his wife who was exercising treaty rights in the UK during this relevant period, and hence he is entitled to the document he applied for in 2009 and up to the date of the Judges decision in 2011. Therefore there is no doubt in my mind that he should have been issued with a PR, as the UKBA must have been aware of Regulation 10( in any event.

The UKBA too agreed with this and issued a Residence Card sometime in the Summer of 2011. This closes the issue of his wife in my view. When he made a next application, which i don't think he was required to make, the only issue for examination, was whether or not he can be classified as a qualified person, as if he was an EEA national. The issue of his wife ought not to have been investigated or brought up. They have had nearly 7 years to do this.

The judge in his determination confirmed that he was satisfied that my ex-wife was exercising treaty rights…..however he refers only to regulation 10(5) and the HO confirmed in their last reply to me that they have correctly implemented the judge decision as he did not refer to regulation 15; however following my enquiry they had to check my case again in order to establish whether I was entitled to PR…..so they have checked documents which were already in their possession….

Few days ago I had a meeting with my solicitor and he confirmed that at the same time when he applied for retained right of residence he also applied for PR….but he did not say that one year ago when I asked him whether the HO issued correctly my RC….in fact he said they were correct…..so I do not really believe him… and that’s why I have started to enquiry the HO myself….

That was supposed to be checked one year ago but it wasn’t…..now I guess it is too late…..if my solicitor doesn’t want to fight for me, who will?

He is advising me now to drop the appeal and make a fresh application with my new partner…..shall I follow his advice?

Didn’t also the first judge look at the wrong regulations as he referred to the retained right of residence only?

Can the new judge look at the mistakes made by the first judge and by the HO firstly without taking into consideration the allegations made by the HO?

If I go to the appeal without any further evidence proving that my ex wife documents are genuine, will I loose the case?

I have lost any contacts with my ex wife since late 2010 when she provided me with the further documents submitted to the tribunal for the appeal (payslips, P60, letter from employer)....

I would really appreciate you opinion…..if you can recommend any good solicitor I will be very happy to have my case checked by someone else!

Thanks a lot

[Obie]

Well if you retained your right of residence, then the only question now is whether you continue to be a person that could be considered as a qualified person if you were an EEA national. The issue of your wife should not have been brought up in the first place.

If you are confident about the authenticity of the documents in the 2 application, then that should suffice, because it shows she was exercising treaty rights up to 2009, 5 years after you married.

The burden of proof is on the UKBA. In cases involving allegation of fraud, it is a significiantly higher than the balance of probabilities, especially when it involves withdrawal of rights.

I don't think you should simply ignore this aspect. It will lead to further issues if you apply as durable partner.


There is a discretion in Issuing Residence Card to an Extended family members under regulation 17(4).

If you live this issue unresolved, it will be assumed that you deliberately sought to defraud the UKBA, and it could be used against you under Regulation 17(4), if you make such application.

[alilou]

I am indeed a qualified person as I have been working since 2007 when I received my first RC.
In fact also the judge confirmed that in his determination.

The problem is I cannot prove that my ex wife documents were genuine and, as per my solicitor say, my only option is to drop the appeal.

He did not mention at all any consequences could be if I dropped the appeal and applied with my new partner.

In fact, also the Immigration Officer at the airport, during my interview, advised me to make a fresh application with my partner and that I did not need to be married as she is European. In fact, in few days I have got another meeting where I should bring all the documents requested to prove that I am in a durable relationship.

Now, you are saying that if I drop the appeal, it will be assumed that I deliberately sought to defraud the UKBA, and it could be used against me if I submit a new application with my partner…..how can I get the certainty of that?

Both my solicitor and the immigration officer told me to drop the appeal; however, they did not confirmed that there will not be any consequences for that….shall I get something in writing from my solicitor?

I do not really know what to believe and what is the best thing to do!

On one side I would like to go to the appeal as I am sure the HO made mistakes in the past…..however, on the other side, as the issue of my ex wife has been brought up, if the HO have real evidence that her documents were not genuine I would not be able to prove the contrary, and what could it happen then?

And what about my working situation? Am I still able to work either I continue with the appeal or make a new application?

Thanks for your help

[alilou]

Dear all,

I just wanted to give you a quick update of my situation.

Last week I had an interview with an Immigration Officer at the airport and I have shown him all the documentation proving my relationship with my new partner.....I have also been asked questions about our lives, her family in Italy etc....

At the end of the interview I have been returned my passport and I have been granted a leave to enter the UK for 6 months.....my previous RC has been cancelled....

I have advised my solicitor who told me to drop the appeal, get married and send a fresh application within 6 months....and this is what I am going to do....in fact, I have already signed a letter which the solicitor sent to the tribunal in order to drop the appeal and I am making arrangments for the wedding.

I have also been confirmed by the solicitor that my previous case will not be taken into consideration by the HO when submitting my next application, can anyone else confirm that as well?

Furthermore, my new partner, Italian citizen, have been living and working in the UK since June 2006 although we have been together since January 2009. Could you please let me know whether I could apply at the same time for RC and permanent residence?

Thanks a lot

[leoandy228]

Why they revoked the RC. Was there wrong NI no on your ex's pay slip or any other problem,which mix the things up??
Plz share with others..