EEA4 Refusal Advice

[dugz]

The background of the case is that mum got a 5 year visa (which expired on 3/01/2013) to stay here in UK on the basis of dad's residence who was at the time Dutch National.

When the application was submitted in Nov 2012 dad became a british national.

On the refusal letter they say that as dad has previously evidenced that he has exercised Treaty rights for a continous period of 5 years but mum hasn't provided no evidence that she has resided in the UK with him in accordance with the regulations for a continous period for 5 years. They also go onto stay about Article 8 consideration on the second page.

In support of the application the following documents were sent along with the application.

Mums photographs as an applicant
Dad passport ( British )
Dad ID (residence card issued from Home Office as permanent residency)
Mum's passport (Indian) with 5 year stamp on
Proof of pension i.e Pension credit letters from Department of Works and Pensions.
Marriage Certificate

As mums visa expired on 3/1/2013 can she appeal the decision, providing supporting additional evidence or submit a new application without leaving the UK?

Many thanks

[Jambo]

Was the proof of pension your mother's or your father's?

The HO requires proof of residence for PR Confirmation. Just the passport is not enough. This can be utility bills, tenancy agreement, official letters, a statement from her GP confirming appointments and residence during this time.

If you have provided those, she should write a letter and ask for reconsideration so her file can be examined again. If not, she can either appeal and produce those documents or reapply. It is difficult to say which way would be quicker.

[dugz]

Thank you for your reply Jambo.

The proof of pension was for fathercovering 2011 and 2012.

She has not submitted the supporting documents you have mentioned. If they were sent now, would the appeal be considered or would this 'new infromation' require a new application?

Would the fact that her visa has expired allow her to make a new application in the UK? The refusal letter states that she must now make arrangements to leave the UK as she has no alternative basis of stay.

Thank you for your help

[Jambo]

She can either appeal (there is a small fee involved) and produce the evidence or apply again with the correct evidence. I can't tell which route would be quicker.

Applying for PR Confirmation (EEA4 form) is optional. The fact that her status was not confirmed, doesn't mean she needs to leave the country. This is just a standard letter the HO sends with every refusal regardless of the reason.

As she is married to your father who holds a Permanent Residence status, she is legal in the UK and doesn't need to leave the country. Her residence rights are obtained automatically and legally she doesn't need permission from the HO to stay.

[dugz]

Thanks, thats a relief to know.

One final question before resubmitting everything, because dad is a British National and now has a British passport, would the EEA4 form still be the correct form to use?

Many thanks

[Jambo]

Yes. By becoming British he didn't lose him Permanent Residence status and your mother is allowed to continue using the EEA route.
Just make sure you submit all the required documents this time.
- parents passports
- father's PR card
- evidence that father is still in the UK (pension slips are fine)
- evidence of the mother residence covering 5 years (bills or tenancy agreements or a letter from GP)
- marriage certificate.

Does your mother wish to become a British citizen? She can apply directly if she wishes. She doesn't need to apply for PR Confirmation.

[dugz]

How would she apply directly to become a British citizen? What would be the point of she (or anyone) applying via EEA4 at this stage?

Thank you

[vinny]

Yes. By becoming British he didn't lose him Permanent Residence status and your mother is allowed to continue using the EEA route.

Be careful. When father became British, he may have lost Dutch citizenship. However, if mother had automatically acquired PR before father became British, then she should be okay.

[Jambo]

In the naturalisation application form (form AN), there is a section for EEA nationals and their family members (a mini EEA4 if you like). Applying for EEA4 is optional as rights are obtained automatically.

Normally, you need to wait for 12 months after PR before applying but spouse of British citizens doesn't need to wait and can apply immediately after obtaining PR so in your mother's case she can apply now (if she has completed 5 years of residence). She still need to provide the evidence required for EEA4 so the HO can be satisfied that she has obtained PR but this can be part of the BC application and doesn't need to be a separate one.

People apply for EEA4 for various reasons. The main ones are in cases they are not married to BC and need to wait for 1 year so they would like to have proof of their rights in the UK (for travel or employment) or that people want to reduce the risk of refusal of BC application (because of wrong documents) by making a free EEA4 first.

[Jambo]

Yes. By becoming British he didn't lose him Permanent Residence status and your mother is allowed to continue using the EEA route.

Be careful. When father became British, he may have lost Dutch citizenship. However, if mother had automatically acquired PR before father became British, then she should be okay.

Even with losing his Dutch nationality, I don't see why this would affect his PR. once obtained, PR can only be lost by being absent for more than 2 years.

[dugz]

Thank you so much for your help.

Mum says that dad has not lost his Dutch citizenship and he 'became British' in November 2012.

A fresh EEA4 application it is.

Thank you again.