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Permanent Residence Refused - No Right To Appeal

Passport Retained

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#1 IyaCiara

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Posted 23 December 2012 - 10:28 PM

My husband's permanent residence application was refused yesterday - on the basis that there was insufficient evidence of me exercising my treaty rights and due to the fact that my passport had not been submitted. Home Office have kept my husbands passport and advised that he has no legal right to stay in the country nor any right to appeal. Based on the facts that I will outline below, I would appreciate it if you could advise on what our next step should be. Thanks!

1. My passport was submitted to support my husband's application but I requested that it be returned to me in September so that I could enrol at university. When Home Office returned my passport, they sent my husband a letter to confirm that they were returning it. I still have this letter.

2. I have been a permanent resident in the UK since 2003. Included in my husband's application was proof of this - my passport that had originally been endorsed and the original paperwork that I had received to confirm my PR from Home Office.

3. I included a cover letter with my husband's application stating the following 'Case C-192/09 Secretary of State for Work and Pensions v Lassal (2010) and Case C325/09 Secretary of State for Work and Pensions v Maria Dias (2011) both confirm that for the purposes of acquiring the right of permanent residence provided for in Article 16 of Directive 2004/38/EC, continuous periods of five years’ residence completed before 30 April 2006, the date for transposition of that directive, in accordance with earlier EU law instruments, must be taken into account'.

4. The July 2012 version of the EEA4 application form (which we used) specifically allows for the EEA sponsor to have been permanently resident in the UK - therefore there was, in my opinion, no need for the Home Office to have been trying to establish how I have been exercising my treaty rights since I married my husband in 2007.

5. Surely Home Office are acting illegally by retaining my husband's passport and telling him that he has no legal right to stay in the country?


Again, all advice at this point will be most gratefully received. As you can imagine, to receive such news a few days before Christmas has been quite tough on us.







#2 SteveG

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Posted 23 December 2012 - 11:27 PM

Hi,

Sorry to hear of the difficulties you've had.

I've just read your other posts here: http://www.ukresiden...t/#entry400251

From reading those posts, you acquired ILR in 2002. ILR is not the same as PR, as explained by Mutly in your earlier posts.

If you relied solely on your ILR, then your application was bound to be refused. You can only use the EEA4 form if you are relying on your exercise of Treaty Rights or PR under the EEA Rules. To establish PR under the EEA rules, you would have needed to submit either a document confirming PR issued by the UKBA or evidence of exercising Treaty Rights for five years. If you had submitted those documents then the application should have been successful.

Your husband has a right to reside here under the EEA Rules as long as you either have PR under those rules or are exercising a Treaty Right. It appears that you didn't submit any evidence either of having PR (under the EEA Rules) or exercising a Treaty Right, in which case the UKBA will assume that you don't have PR and you're not exercising a Treaty Right and therefore they consider that your husband has no right to reside.

Unless I've totally misunderstood what has happened, you should make a new application on form EEA4 providing evidence that you have exercised Treaty Rights for five years, together with all the other required documents. The application should then be approved.

To quote the section of the EEA4 form:

If your EEA national family member has already acquired permanent residence, please provide
either their document certifying permanent residence (if they have one) or evidence of how they
acquired permanent residence, for example evidence of exercising Treaty rights for a continuous
period of 5 years prior to the date at which they acquired permanent residence.



#3 IyaCiara

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Posted 24 December 2012 - 08:16 AM

Thanks Steve.
That question was asked and answered in 2010. However, Lasall and Dias both confirm that receiving ILR in 2003 must be treated the same as getting PR after 2006. Please see the link below that incorporates this information into Home Office guidelines in July 2012.

http://www.ukba.home...mm-eea-regs.pdf

Edited by IyaCiara, 24 December 2012 - 08:25 AM.


#4 SteveG

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Posted 24 December 2012 - 11:03 AM

Unless I'm missing something blindingly obvious (and I'll stand corrected if I am), that is not what the changes say.

This is the relevant section

The Regulations have also been amended to give effect to the judgment in Lassal, as further revised by the judgment in Dias. The amended Regulations now allow for EEA nationals to rely upon continuous periods of residence of 5 years spent in accordance with earlier instruments of European Law when assessing the requirements for permanent residence under the 2006 Regulations. Such residence may only be relied upon where the conditions governing a right of residence have been satisfied throughout the relevant period but subject to certain conditions relating to absences leading to loss of the right of residence.


It doesn't say that ILR should be recognised as having the same meaning as PR under the EEA Regs. What it does say is that residence in the UK prior to 2006 should be counted if residing "in accordance with" Europan Law .





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