Urgent: EEA4 refused. Passport retained. Should I try EEA2?

[LeLe]

Hi,

I am new to the forum and I would be very grateful if I can get some advice from you.My husband is Italian who has been working in the UK for 10 years continuously.

I am a non-EEA national and my 5-year residence permit (EEA2) expired in June 2012. I submitted my EEA4 application on 10th July and received my COA on 8th November.

And yesterday, I received a letter of refusal dated 30th November. Reasons being that I only submitted 1 document for each year (1 bank statement each year and p60 each year; marriage certificate, as we thought they are already strong evident) and that I didn't submit my husband's passport but his UK driving license (reasons below).

We were probably too naive to submit my husband's UK driving license as proof of identity. But I stated clearly on my cover letter that as my husband had to travel within the 6-month period so if the driving license is not sufficient please let me know when his passport is needed and we will be able to submit it immediately. (Which is what happened for my EEA2 application 5 years ago. They asked us to send in his passport a few weeks before they gave me my EEA2).

Based on 1) insufficient of document; 2)no EEA passport as proof of ID, they refused my application and saying I do not have the right to appeal. They returned all my supporting document but retained my passport (as for them I appear to have no rights to stay in the UK and that I need to contact the regional immigration office who have my passport to arrange my date of departure!)

I understand that they just try to intimidate me but I am 100% sure I have the rights to stay. So my questions are:

1) The reason why we only submitted one document each is that we struggle to find his document from 2007-2009 as we had moved 2-3 times during those years. But what we managed to send we believe were already strong evident (p60 and one bank statement each). What else would be helpful? We are asking the bank to issue the backdated bank statements now, will that be helpful? Say, lots of bank statement proving the same thing? (during those days we were renting so no utility bills at all and being not very organised, he can't find his work contracts but P60 should be enough one would think?)

2) I don't mind not getting my PR as I should be getting my Italian passport next year. In this case, should I simply apply EEA2 again?

3) As in my case, the application was refused and passport retained. When I re-submitted, will they treated it as a fresh application meaning that I will need to wait for another 6 months to get my passport?

As I said I would be really grateful to hear you experts' opinions. In all honesty, I just wanted to have my passport back asap as I need to travel. So if EEA2 is less complicated and they won't really have any reasons to refuse my application , I would rather go down that route but I would really appreciate your advice.

Many thanks.

[Directive/2004/38/EC]

Based on 1) insufficient of document; 2)no EEA passport as proof of ID, they refused my application and saying I do not have the right to appeal. They returned all my supporting document but retained my passport (as for them I appear to have no rights to stay in the UK and that I need to contact the regional immigration office who have my passport to arrange my date of departure!)

What exactly did they say in the refusal?

In general you are not required to submit the EU passport.

[Plum70]

This in my view is a bizarre outcome and an obtuse decision by the UKBA. At best they should have asked for the submission of your husband's passport and given you the opportunity to provide it before refusing the application. Your passport should not have been withheld whatever the case - this is unlawful. Your right of (permanent) residence in the UK is automatic (provided all eligibility criteria under the EU directive are fulfilled) and the UKBA only serves to confirm this by issuing a fancy piece of paper.

On to your case:

You are the non-EEA family member of a qualified EU citizen who has been working in the UK for 10 years. If so then your husband already acquired PR in the 2007 and was no longer required to exercise treaty rights there after.

So for your EEA4 application:

You applied for PR based on 5 years or marriage and UK residence, so 2007 - 2012. Is this correct?

To show that your husband was a qualified person for the above period you provided P60s for each of the five years as well as one bank statement for each year. Correct? Did you do this because your husband never applied for confirmation of his PR? If he had then only his PR card would have been necessary (provided that he qualified back in 2007).

What evidence did you provide to show that your residence in the UK has been continuous for 5 years?

I think that you have already attained PR and should resubmit your application with your husband's passport or national ID card for reconsideration. I would advise that you address your package for the attention of the caseworker responsible for your case and ask that the application be prioritised as the refusal was unlawful or premature at least.

[aledeniz]

2) I don't mind not getting my PR as I should be getting my Italian passport next year

Good luck. My wife applied 28 months ago, and her application is still at stage 1 (did they gave you the code K to follow the application on their web site?).

[aledeniz]

2) I don't mind not getting my PR as I should be getting my Italian passport next year.

Also, if you are getting Italian citizenship though your spouse, why you don't just send UKBA your spouse's national ID? I did EEA1, EEA2 and EEA3 sending only my national ID, I know a few friends who have done same, UKBA always accepted that.

[Plum70]

2) I don't mind not getting my PR as I should be getting my Italian passport next year

Good luck. My wife applied 28 months ago, and her application is still at stage 1 (did they gave you the code K to follow the application on their web site?).

For a second I thought you were referring to your wife's EEA4 taking 2+ years so far! No doubt you're referring to her application for Italian citizenship. This isn't uncommon for EU naturalisation timelines: For instance the Swiss ask that no enquiries be made within the first two years of application.

The UK is probably the most 'lenient' in the EU in terms of processing naturalisation applications - average waiting times this year are circa 60 - 90 days. If only the UKBA exhibited half as much vigour towards non-EEA applications..

[aledeniz]

For instance the Swiss ask that no enquiries be made within the first two years of application

Yes, this is exactly what they told us too. On the other hand, the way the Italian law is written, if a citizen spouse's application is not refused in the first 2 years, they cannot refuse it anymore so at least the outcome is known, if not the when.

[Obie]

Also See Barnet

I think the refusal does not seem justified so far as the ID aspect is concerned.

I think you should pursue the PR application. No need to apply for EEA 2

[LeLe]

Thanks to all who replied.

To answers all of the questions....And sorry this will be long, but might be interesting to some as I do think I have been treated unfairly in this occasion:

Ans 1) List of the document submitted (below is the same list that I sent to HO, only not revealing names)

A. Proof of Identity:
A1: Non-EEA national’s Passport
A2: EEA national’s UK Driving License
A3: Copy of EEA national’s passport (**reasons explained on my cover letter)

B. Proof of Employment:
EEA national
B1: Letters from HMRC confirming earnings between 2007-2012
B2: P60 of 2009-2010 and 2011-2012
B3: Letter from current employer

Non-EEA national
B4: P60 from 2007-2012 (**Copies—this proves to be stupid and unnecessary)

C. Proof of residency for both Non-EEA national and EEA national:

2007-2009 (in previous address):
C1: Tenancy Agreement
C2: Bank statement: June and September 2008

2009 to present (in current address)
C3: Annual mortgage statement
C4: Council Tax statement 2009/2010
C5: British Gas Bill: February to May 2012

Latest Bank Statement:
C6: EEA national - March to June 2012
C7: Non-EEA national - March to June 2012

D. Proof of relationships:
D1: Marriage Certificate

E. Other documents:
E1: CRB check forms for both EEA national and Non-EEA national

Ans2) My husband didn't apply PR, as it's not necessary. He didn't have a ID card, only passport.

Ans3) Yes, I applied for EEA4 based on more than 5 years marriage and both of us are working in the UK for more than 5 years. (Husband 10 years; myself nearly 6 years)

Ans4) some part of my cover letter FYI:
.....Please find enclosed my EEA4 application form with relevant supporting documents. I have also submitted my passport and my EEA husband’s UK driving license. As he needs to travel to Italy in the next few months, we are unable to submit his passport for the time being. I have enclosed a copy of his passport, should you require seeing his passport at some stage, please let us know so we can submit it nearer the time and receive it back as soon as you finish verifying it.

Please find attached a list of all the documents submitted. Please note that my understanding is that for me the non-EEA applicant, the proof of employment is not essential, therefore I have only submitted copies of my P60 for your reference. I have also made colour copies of all the original documents for you to keep if necessary, as we would like to receive all the originals back once the application has been successful. Please also find enclosed a pre-paid Royal Mail Special Delivery envelope (paid up to 1KG) for returning the passport, driving license and the original documents in due course.

Ans 5)This is an extract of the refusal letter received yesterday:

As stated on the application form photocopies are not acceptable forms of evidence and thus they have been disregards from the consideration (**I explained on my cover letter already)…….In support of this you have supplied 1 tenancy agreement(2007), 1 council tax bill (09/10), 1 mortgage statement (2010), 1 bank statement (2008), 1 gas Bill (2012). In order to evidence residence for a five year period it would be expected that a number of documents be supplied for each year of qualifying period in order to illustrate a continuous period of residence as required. You have supplied nothing at all for the year 2011 (**this is not true, the tax letter from HMRC cover from 2007-2012, but I think they just ignore that). In light of this you are unable to satisfy the requirement of regulation 15(1)(b) of the Immigration (EEA) Regulation 2006.

It is noted that you have not supplied a valid form of identity on the part of your EEA national sponsor (**even though I explained on my cover letter that we can submit it when they ask)…..As this is the case there is no right of appeal against this decision as per regulation 26(3) of the immigration (EEA) (Amendment) Regulation 2012.

(**..then it went on to say I can submit a further application……**)
After that come this:

As you appear to have no alternative basis of stay in the United Kingdom you should now make arrangement to leave. If you fail to do so voluntarily your departure may be enforced………

Your documents have been retained and responsibility for your case has now been passed to your regional case owner unit/local immigration team. You should contact them to discuss your departure from the United Kingdom……


==========
This is the end of my story. At the moment, we are just going to re-apply for EEA4 as according to the UKBA website, if one gets s refusal, the easiest way is to re-apply. But I just wanted to avoid any mistakes (if any) made previously and make sure the application goes quickly and smoothly and to be prioritised if possible.

I would be grateful for any input. Thank you so much!

[LeLe]

[quote="aledeniz"][quote="Plum70"]For instance the Swiss ask that no enquiries be made within the first two years of application[/quote]

Yes, this is exactly what they told us too. On the other hand, the way the Italian law is written, if a citizen spouse's application is not refused in the first 2 years, they cannot refuse it anymore so at least the outcome is known, if not the when.[/quote]

[b]Please could you tell me where the law is written? Thanks. My Italian passport application has gone pass 2 years but was told the processing time has changed to 3 years.[/b]

[Plum70]

@LeLe: Reading your post has caused me considerable angst. The UKBA is out of order threatening you with removal and this is an embarrassing administration of EU law!

Firstly, the supporting documents you provided are fine for the most part except two: Your husband's passport is needed to consider your application - again, the UKBA should have asked for this before issuing a refusal.

Photocopies of supporting evidence are NOT acceptable and applicants are pre-warned on the EEA4 form.

So, resend your application with your husband's passport, your marriage cert., originals of your tenancy agreements and mortgage agreements (proving your continuous residence in the UK for 5 years), your husband's original HMRC statements and P60s for 5 years and remind the caseworker to retrieve your passport from whatever store cupboard it's being stored in.

With the above evidence I struggle to see how your application can fail.

At present you are not illegal in the UK, are already a permanent resident, cannot be removed, should not consider leaving or appealing this appalling decision.

Just reapply and go about your business as usual. And do keep us updated as you progress.

[EUsmileWEallsmile]

Also See Barnet

I think the refusal does not seem justified so far as the ID aspect is concerned.

I think you should pursue the PR application. No need to apply for EEA 2

@LeLE, please read the case law that Obie has linked to. It is relevant to your case.

[Directive/2004/38/EC]

From what you have written, UKBA is way out of line, although this is consistent with other stories I have heard.

I would demand they immediately return your passport with the issued PRC. You should likely ask for compensation.

Are you prevented from working or travelling presently? Anything that you need to do which you can't?

Remember, they are holding your passport and threatening to deport you in spite of the fact that you already have PR and you have applied for an OPTIONAL PR card.

[aledeniz]

Please could you tell me where the law is written? Thanks. My Italian passport application has gone pass 2 years but was told the processing time has changed to 3 years.

I'm not a lawyer, but this is my understanding:

Art. 3 of http://www.interno.gov.it/mininterno/si ... ne_32.html, 730 days.

Art. 8, comma 2 of
http://www.interno.gov.it/mininterno/si ... ne_30.html, after 2 years they cannot refuse anymore.

The subjective right for citizens' spouses has been tested many times in Courts of Law. This is from 1993: http://www.asgi.it/public/parser_downlo ... 1_1993.pdf, but you may find more recent judgements. Adult foreigners who are not citizens' spouses in the general case don't enjoy subjective right to citizenship.

If the HO sends a citizen's spouse a refusal after 2 years, which may rarely happen, the said spouse will ask a judge to grant them citizenship, and as long as they are not a danger to the Republic and have not an unspent conviction to a serious crime, the judge will grant it.

[Plum70]

I'm not a lawyer, but this is my understanding:

Art. 3 of http://www.interno.gov.it/mininterno/si ... ne_32.html, 730 days.

Art. 8, comma 2 of
http://www.interno.gov.it/mininterno/si ... ne_30.html, after 2 years they cannot refuse anymore.

The subjective right for citizens' spouses has been tested many times in Courts of Law. This is from 1993: http://www.asgi.it/public/parser_downlo ... 1_1993.pdf, but you may find more recent judgements. Adult foreigners who are not citizens' spouses in the general case don't enjoy subjective right to citizenship.

Aledeniz, for the benefit of LeLe the above links do not seem to be working. You may wish to repost.

[aledeniz]

Aledeniz, for the benefit of LeLe the above links do not seem to be working. You may wish to repost.

Thank you, Plum70, I fixed the links in place, there was a trailing comma in each of them.

[aledeniz]

I'm not a lawyer, but this is my understanding:

Also, in this document, in Italian, you should find most of what you may want to know about the naturalisation process for spouses of Italian citizens:

http://www.asgi.it/public/parser_downlo ... b.2012.pdf

If go jump at page 19, there is a paragraph titled "4.4 Termine per la definizione negativa del procedimento" ("4.4 Deadline for the refusal"), where referencing the judgement I had quoted it clearly states that after the deadline the State cannot refuse anymore the citizenship (as long as you still hold the subjective right).

The HO may try, rarely, but then they will loose in front of a judge, as the referenced judgement was given by the major court of last resort in the Italian legal system, sitting "a sezioni unite" (it is the latest possible resort, no judge can pass a judgement contradicting their deliberations),

Wishing to give you a more practical suggestion, if you are already after the deadline, you may decide to send them a "Diffida ad adempiere" ("notice to comply"), of which you may find tens of templates for citizens' spouses on the web.

[LeLe]

Thanks to all again. At the moment I will just gather more supporting documents and we have asked my husband's bank to send us every single bankstatement from 2007 (this is from his salary account). We just want to give HO no reason to refuse my application this time.

I rang the local immigration office where they keep my passport on 6th Dec and spoke to someone. My call was simply to make sure they DO have my passport. ( I don't want at the end find out it has got lost!!!)

They told me they have my passport and asked if I have a date for my departure. I simply replied that I know I have 100% rights to stay here as my husband is Italian and he has been working here for moret than 5 years. So I said we will just reapply. The lady then told me in that case, I just need to send a photocopy of my passport with the application forms etc and explaining that my passport is with the local HO storage. One thing though she said, I won't be able to get my passport back until HO confirms my rights to stay.

Well, I think this is the only thing that will prevent me from going anywhere (let's just hope I won't need to travel for any urgent purposes). But I am prepared not to travel anywhere until I get the application done.

One question though, do anyone know if my application will be treated as a completely new case or they will try to speed it up? And I guess (I hope) my case won't be dealt with by the same caseworker who refused my application without hesitation??

I will certainly report back any progress.

Many thanks,

[EUsmileWEallsmile]

You are wise not to consider travel until this is resolved.

When you send the additional information, I suggest you write a covering letter stating that this is not a new application, but suplementary information for an existing one.

Do you undestand the case law Obie linked to?

[aledeniz]

Thanks to all again. At the moment I will just gather more supporting documents and we have asked my husband's bank to send us every single bankstatement from 2007 (this is from his salary account). We just want to give HO no reason to refuse my application this time.

With my EEA3 application, I sent bank statements and payslips covering more than 5 years (actually 6 full years). I was able to confirm they did check them, because I put them in a specific pattern, and when they sent those back were instead chronologically ordered. I sent also P60s for 6 years, 2 letters from my employers confirming employment for the previous 6 years, tenancy agreements covering 5 years, my 6 years old registration certificate (the one I got through the EEA1 application), plus printouts of emails related to my working life (i.e. request for interviews, a redundancy agreement from my first employer, job offers).

[LeLe]

Thanks "EUsmileWEallsmile". I have just read throught the file re. barnett and it is very useful. What I really don't understand it that, unlike the Polish citizen who wasn't able to send the Passport at that time, I wrote on my covering letter that we can submit my husband's passport as and when they want. I do not understand why they can disregard that point completely.

And also on the EEA4 application form, EEA4 Permanent Residence Card Version 07/2012 - page 21 of 26, it does say on the document section that I need to provide: "Your EEA national family member’s current passport or ID Card. If they do not have a passport or ID card, you must provide another form of identity."

So I did sumbit 'another form of identity" at the very least and I did say I have no problem to submit the EEA passport if they inform me as what they did with my EEA2 application in 2007.

Also they quoted that I don't have the right to appeal based on Regulation 26 (3) see below.

Regulation 26 (appeal rights)
20. In regulation 26-
(a)
for paragraph (3) substitute-
"(3) If a person claims to be a family member who has retained the right of residence or the family member or relative of an EEA national [b]he may not appeal under these Regulations unless he produces-
(a)
a valid national identity card issued by an EEA State or a passport; and
(b)[/b]
either-
(i)
an EEA family permit;
(ii)
proof that he is the family member or relative of an EEA national; or
(iii)
in the case of a person claiming to be a family member who has retained the right of residence, proof that he was a family member of the relevant person."; and
(b)
[b]

Note the 'unless' bit. Does that mean I can appeal?? As I can provide a valid EEA passport with no problem!

In any case, I will just reapply. But at least I feel better equipped and prepared in case there are any more bizzard scenarios for the 2nd application (hope not!!!).

Many thanks.

[/b]

[EUsmileWEallsmile]

The general point is that the home office have already had sight of your EU family member's nationality document from previous application (residence card).

[Obie]

The new regulation 29A also confers a discretion on the Secretary of State to accept alternative evidence of identity, where the person is unable to provide a passport or ID card. Firstly no provision for PR requires a passport or ID card for the EEA national and secondly, they should have exercised the discretion in Regulation 29A, and if they refuse to exercise it, give justified reasons for not doadg so, as part of good administration.

[aledeniz]

Note the 'unless' bit. Does that mean I can appeal?? As I can provide a valid EEA passport with no problem!

While you can appeal, I would personally follow Plum70's suggestion, and I would first resubmit my application with my EEA spouse's passport or ID card (plus all bank statements and what-else you may collect meanwhile) for reconsideration, addressing the package to the attention of the caseworker responsible for my case (do you have the reference number?) and ask that the application be prioritized as the refusal was certainly premature, to say the least.

[aledeniz]

Ans2) My husband didn't apply PR, as it's not necessary. He didn't have a ID card, only passport.

On a personal note, I do always invite every EU citizen who is a long term resident in the UK to apply through the EEA3 to get the document certifying permanent residence and to get the citizenship whenever possible.

I often have arguments with my Italian friends living in the UK for years, if not for life, who don't apply to get neither the citizenship neither the document certifying permanent residence, let alone the registration certificates (I am the only Italian citizen I ever met who did actually got one, I knew of another who did fill and send the EEA1 form 11 months ago, but the UKBA has yet to provide him with one).

While it is true that it is not currently strictly necessary to apply for the document certifying permanent residence, it is actually quite useful in some current scenarios, let alone future, and it is currently free.

About the citizenship, I cannot fathom how someone could accept to be a taxpaying denizen for lustra when paying a £901 geld they could become a citizen.