eea4 refusal (need advice urgently)

[cya]

Hi everyone,

This is my first time to post here and thanks for reading my case.

I have applied for eea4 and got refused yesterday. Here is the timeline of my journey:

I am non-eea national and my wife is an eea national (Irish), we married in 2007.

Mar 2008 - we resided in UK, my wife has got a job (proof of residence)
Jul 2009 - I have received my eea2 visa (expired on Jul 2014)
... we have been continuously working (all with proof)
May 2013 - My wife gave birth to our son, and she quit her job after since, and suggested by doctor she was having depression. We have proof but it didn't suggest not taking any job.
... however she didn't get any JSA nor actively looking for job (so no solid proof exercising EU treaty rights)

I applied eea4 on Aug 2014 (within time limit), and has been refused on 15 Oct 2014, reason being no proof to show she was seeking job or anything after May 2014, based on the ground that lack of evidence to show she is currently exercising any EU treaty rights, my application then refused.

I have a right to appeal.

My question, from what ground should I appeal? I have indeed no proof as she hasn't got any JSA nor any job application history?
Should I say she is self-sufficient after since? She hasn't got any sickness cover (no proof), I do have a job and income to prove.

More to my concern, since we have both residing in UK for more than 5 years at the point Mar 2013, isn't she qualified and shall automatically acquired PR status, so we do not need proof after that time, and so should I?

I do not want to miss any valid arguments or grounds in my appeal.
Thanks for reading and you advice/help is very much appreciated.

[cya]

Anyone?

I have read other posts relating to what "continuous 5 years" is defined.
If ANY 5 continuous years is enough to prove eea natinoal has exercised EU treaty, does that mean eea national AUTOMATICALLY acquired PR status even without a confirmation/visa from Home Office?

I'm still puzzled what grouds I have to fight in this appeal.

Thank you.

[malik261]

Hi Cya

I am sorry that your application has been refused.

You need to provide a little more info..
When did your Wife came to the UK?

Did she register with the home office as a EU citizen in the UK ( this is done by competing and sending a registration certificate to the HO) - valid for 5 years
If so, when did she get it?

[dalebutt]

Unfortunately it appears that your spouse may have broken residency. EEA national do not just automatically qualify for PR after 5 years of residence, they have to show that during those years they have exercised treaty rights, that's only when they automatically qualify for PR.

Was she on maternity leave? how long was the maternity leave? Does her depression has anything to do with her giving birth? When exactly did she stop working?

[cya]

thanks everyone for the replies.

@dalebutt, do you mean i have to show my wife has exercised treaty even after residing in uk for more than 5 years?
The maternity leave was ended in May 2013 when my wife also quit. And yes, she was depressed after giving birth to the baby.

@malik261, my wife and I both came to uk in <b>Mar 2008</b>, she had a job with proof to show this.
but she didn't apply for any certificate.

[dalebutt]

Really your wife only came to the UK in 2013? Yes you have to show you wife legally resided in the UK for the 5 years period, evidence of exercising treaty right will prove legal residence.

[cya]

sorry @dalebutt, i got mixed up.

We both came to UK in Mar 2008.
And we did show we have 5 years continuous legal residence in UK, during Mar 2008 - May 2013.

HO questioned we have no evidence to prove she exercise treaty during May 2013 - present (which unfortunately she hasn't been working)

[dalebutt]

I asked you some questions in my first reply, please provide answers to those.

[cya]

I asked you some questions in my first reply, please provide answers to those.

She was in maternity leave during Jul 2012 - May 2013. She also quit the work in May 2013.
She has depression due to giving birth to baby and felt isolated.

A doctor refers her to consult GP. GP confirms her depression and suggested her to meet her family (not EU) so won't feel isolation)
But the doctor didn't suggest not taking any job.

[dalebutt]

You may well rely on Jessy St Prix case law, you will though need to show that this depression is a result of her childbirth and she was unable to seek employment because of that, if you can successfully prove that, you stand a very good chance.

[cya]

@dalebutt, thank you so much for your advice.

The appeal form is rather complicated, and it has to be made within 10 days, I doubt I can obtain any proof on time.

So, just want to clarify, even she has exercised treaty for 5 years (working from Mar 2008 - May 2013), if she hasn't since exercising treaty (working or etc.), I will still lose this appeal?

[dalebutt]

Let me get this right, has your spouse exercised treaty rights for 5 years before she stopped work? 2008 - 2013?

[cya]

Let me get this right, has your spouse exercised treaty rights for 5 years before she stopped work? 2008 - 2013?

Yes absolutely, we showed proof that she has been working during Mar 2008 - May 2013, which is longer than 5 years already.
HO's refusal solely based on the ground we have no evidence to show she exercised treaty from May 2013 - present -- which from my understanding, HO acknowledge her proof of rights during Mar 2008 - May 2013 already

[dalebutt]

Absolute nonsense, Your appeal is bound to succeed on the basis of the details you have provided, which region of the UK do you live? reconsideration request may be quicker than appealing as they no longer entertain reconsideration request as well as appealing at the same time.

[cya]

@dalebutt, THANK YOU SO MUCH!
We're in Devon county.

How should I proceed for a reconsideration request? Within only 10 days (well literally 9 days) left I must submit a cour appeal don't I?
Please could you explain a little more what steps I should take and not losing my rights if HO refuses my reconsideration request?

again, enlightening!

[dalebutt]

You are very much likely to be served by one of the tribunals in London, the waiting times for that area is quite long, You still have time to appeal, you can submit an appeal online, you will then send the supporting documents to the tribunal, you will have time to then prepare your bundle.

Their reason for refusal is wrong, and normally they change those sort of obvious decision by a reconsideration request, you may submit a reconsideration request and an appeal, if they decided to favourably reconsider your case, they may ask you to withdraw the appeal.

To submit an appeal, follow this link https://immigrationappealsonline.justic ... k/IACFees/

For reconsideration request, it is in a form of a letter, address it to the caseworker or the secretary of state, state the reason why you believe they have made a mistake and ask them to reconsider it.

[cya]

@dalebutt,

I cannot express enough how much I appreciated your help.
I will follow your suggestions and send a reconsideration request to the caseworker (I need to find out where does it show in the refusal letter though), as well file an appeal online.

I will update the progress here.

Thank You.

[dalebutt]

There is no burden on your wife to show that she is exercising treaty rights beyond 5 years, 5 years is what is required of her under EU law and under the EEA regulation, you have provided that evidence it was an error on their part to demand more than it is required. Good luck.

[Rance23]

I have been following this site for a while now and find the Information really useful and helpful..
My case is Im a child of an EEA national and been residing in the UK for 5years plus, so I applied for a PR.

Sent application 18/09/2014
Got COA letter. 06/10/2014

And I just got a refusal letter stating that my EEA national has not been exercising treaty right for a continues period of 5 years.. Well the problem is my dad work with this company from 15/05/2009 to 21/09/2012 and lost his licence to work for some reason, So from then he was on job seekers form 12/10/2012 to 11/01/2014 nd since February till date he has been working . The problem being is that my dad was a jobseekers in excess of six months and during the application there was no evident provided that he was seeking for job and doing everything possible to get one... This was the ground of our refusal ..

So I have considered a reconsideration letter with more evident to show that he was looking for work during the period of him claimin jobseekers. The job centre has provided us with up to date job search activities that he was doing while claiming and also he has certificate from btec customer service, counterbalance licence training, cscs card and other things he was ask to do by the job centre in other for him to get work... So what am asking is that will this evident be enought for a successful reconsideration letter?

I will be pleased if I get a detailed replied and what are my chances .. Many thanks

[Obie]

You will be best advised to pursue your statutory right of appeal aswell,just in case the reconsideration is refused .

[Deeone]

I have been following this site for a while now and find the Information really useful and helpful..
My case is Im a child of an EEA national and been residing in the UK for 5years plus, so I applied for a PR.

Sent application 18/09/2014
Got COA letter. 06/10/2014

And I just got a refusal letter stating that my EEA national has not been exercising treaty right for a continues period of 5 years.. Well the problem is my dad work with this company from 15/05/2009 to 21/09/2012 and lost his licence to work for some reason, So from then he was on job seekers form 12/10/2012 to 11/01/2014 nd since February till date he has been working . The problem being is that my dad was a jobseekers in excess of six months and during the application there was no evident provided that he was seeking for job and doing everything possible to get one... This was the ground of our refusal ..

So I have considered a reconsideration letter with more evident to show that he was looking for work during the period of him claimin jobseekers. The job centre has provided us with up to date job search activities that he was doing while claiming and also he has certificate from btec customer service, counterbalance licence training, cscs card and other things he was ask to do by the job centre in other for him to get work... So what am asking is that will this evident be enought for a successful reconsideration letter?

I will be pleased if I get a detailed replied and what are my chances .. Many thanks

I had almost similar case to yours but the difference was that my uncle did not apply for JSA but rather he went for self employment and when I applied in 2013 I was told there wasn't letter from accountant; meanwhile we submitted correspondence from the accountants with the application then. As a result, we sarted recounting th 5 years meanwhile my RC requires renewal early next month as I was given 4 years and 4 months on my RC rather than 5 complete years when i called to tell them I was told either to reapply for RC all over again or send a letter to them and outcome depending on the case workers response>i am now considering applying despite the fact that the treaty right years is about 5 months to be complete 5 years because I don't want my documentation to expire before applying. but advise and support from forum members will be highly appreciated and incase anyone knows a good solicitor

please pardon me if I haven't follow the forum policy wth regards to posting my comments here