Retaining rights of residence drama, please help

[nuille]

Hello Everyone,
This is the short version:
Arrived in UK in 2004 on 1 year EU family permit (married to a German)
Received 5 year EEA visa 2005-2010
Applied and received another 5 year EEA visa in 2010 to 2015
Marriage broke down…messy... and initiated divorce proceedings in 2011 divorce finalized end of 2012.
Applied with lawyers for retained rights/PR in march 2013
Received refusal by HO in february 2014 (way past the 6months processing date) based on being unable to proof that my ex was exercising treaty right during divorce.
Lodged appeal. appeal date set for october 2014
At this stage I had been without a passport from march 2013. missed several important family events including the death of my grandmother. i was repeatedly told by lawyers not to antagonize HO by pushing for speedy processing ,that if I leave my case would be withdrawn so i didn't.
by april 2014 another family death occurred and i could not not attend. at this stage i was a mess the waiting the unknown the frustration was too much. so i contacted lawyer and tribunal to find out what my options are. i was told if i leave my case would be considered withdrawn. i had to contact HO who still had my passport they told me to contact local voluntary departure unit in my area to initiate proceedings. i contacted them laid out my case they confirmed that if i leave my case would be withdrawn. i asked how long it would take i had an emergency and needed to travel in a hurry. they gave me the generic 5 to 14 working days answer and that i should not book until i heard from them. i didn't have that luxury. i applied for an emergency passport at my embassy and left 3 days later basically packing as much of my life for the past 10 years as i was told leaving would be considered a withdrawal.
i informed the voluntary departure unit that i had left. they asked for proof. i gave it to them. they informed me they would inform HO and also return my passport to the embassy. (mind you HO still had and to this day still have all my previous passports)
i emailed my lawyer to inform him what happened. i did not hear from him until they needed another payment for the second stage of appeal.
i was surprised. i hadn't heard from them in 6months. no response to my previous emails. i had been with my family not returning to the uk since i no longer had the visa (or so i thought) and deciding whether i should settle back in Germany. i heard from them 5 days before the appeal date.

basically appeal date was not attended by me, my so called lawyer (who said they could no longer represent me) or a representative by HO. the tribunal seem to be unaware of my travel and HO's knowledge of this.
Recently received notice that appeal was dismissed specifically on "human rights grounds and under immigration rules"
i have been given option to apply to appeal to upper tribunal

I hope someone can give me some clarity on this.
What are my options besides the upper tribunal?
I am wary and exhausted by this experience but would like to return.
Any help appreciated.

[Obie]

Unfortunately your lawyer simply messed you up.

If you came to the UK in 2004, then in 2009 you would have secure Permanent Residence.

You made another application in 2010, by then it is permanent Residence you should have applied for.

So it is unclear what your lawyer was doing.

If you were able to provide proof that your wife was working or exercising treaty rights from 2004-2009, then, i see not reasons why the other years leading to your divorce should have mattered.

The 2010 application should have been a PR, rather than a residence card, and if you can show that she was working all throught that period, then you should be ok.

[nuille]

Thank you Obie,

At the time of the 2010 application no lawyer was used and we mistakenly applied for another 5 year visa instead of PR.(didn't read options properly)
Although my ex was exercising treaty rights between 2004-2009 i don't have many of his documents to show only mine. we are no longer in contact…it ended badly.
the application was made for "permanent residence card as confirmation of a retained right of residence" EEA4
the question is should i make a new application with HO or should i plead my case with the upper tribunal?

[Obie]

Plead your case with the Upper Tribunal.

Have you made an application for permission.

[nuille]

I received notice of dismissal yesterday and am compiling my documents to apply for permission.
i won't be using a lawyer…should I?

[Obie]

It involves a complex area of law, i will strongly advise that seek the advice of a competent adviser, if you are not a legal person, as the difference between success and failure, could rest on how robustly your case is presented.

[vinny]

Although my ex was exercising treaty rights between 2004-2009 i don't have many of his documents to show only mine. we are no longer in contact…it ended badly.

There are certain procedures available.

[nuille]

Thanks obie.
Hi vinnie thanks i will look at those links what would be a good reason for HO?

[Obie]

VInny's advice can be helpful once you have overcome the hurdle of getting permission.

You could also quote NA at a permission stage.

[nuille]

Thanks obie. in regards to a competent advisor is there anyone you could recommend?

[Obie]

Well it depends on which area of the UK you are based.

I think you need to send your permission to appeal within 14 days.

[nuille]

london based lawyers please

[Obie]

Are you in London at present.

[Obie]

There are two inaccurate information that you were given by previous representatives.

The first is that your appeal will be considered abandoned if you left the UK.

That is not trues as 104(4) is not applicable to EEA Appeals.

2. Secondly it appears your reps could not be bothered to mention HS.

59. In marriage breakdown cases, the EEA national spouse may not wish to cooperate with the non-national former family member in providing evidence of the retained right of residence. This may cause problems if the burden lies fully on the applicant in making a first application for a residence document or permanent residence. A material consideration to whether the applicant can discharge the burden of proof is whether the Home Office had previously accepted that the relevant person was working or otherwise exercising Treaty rights. Disclosure of such applications should be made in appellate proceedings as the applicant may not always have taken the precaution of keeping a copy. The 2007 application has proved important in determining the outcome of this case.



60. Applying the language of regulation 10(5) to these facts:-



a. The wife was a qualified person at the inception of the marriage (2002 residence permit).

b. The appellant ceased to be the family member of a qualified person on divorce in March 2007.

c. The appellant was residing in the UK in accordance with the Regulations as the husband of a qualified person at the time of the divorce as there was evidence that the wife had been working part time throughout the previous year.

d. Prior to the initiation of the divorce proceedings the marriage has lasted three years and the parties had resided in the United Kingdom during the marriage for at least a year.

e. The Home Office were twice satisfied that the wife had been exercising Treaty rights in 2002 and 2007, and there was nothing to suggest that satisfaction was based on material misconception of fact. There was some evidence that the wife was a worker at earlier periods in the marriage

f. At the time of the 2009 application there was evidence that the appellant was working. There is no indication that this was disputed by the Home Office or that the appellant had had recourse to public funds. If regulation 10(6)(a) is a legitimate requirement the evidence indicates that the appellant met it, although our reading of the Directive is that evidence of post divorce employment is not necessary to enable the non-national former spouse to acquire and keep the retained right of residence.



61. The appellant has resided in the United Kingdom as the husband and former husband of an EEA national for nearly 10 years. That residence has been under the authority of two residence permits. The issue of the residence permits is evidence that the Home Office was satisfied that the spouse had been exercising Treaty rights in 2002 and 2007.

If they had, which they probably did, perhaps you may had succeeded with the EEA aspect of your case.

[nuille]

Thanks Obie.
Im now challenged by the festive season with solicitors closing before my deadline.
I am in london

[Obie]

I could assist you with you grounds of appeal if your based in London.

When is your deadline.

I think your case seems decent. You should not allow it to slip your fingers.

[nuille]

Wow thanks. the letter was received on 11th so it should be on christmas 25th. How can i get in touch?

[Obie]

After you have posted 10 post, i will be able to PM you my details.

[nuille]

I see

[nuille]

Thanks

[nuille]

UPDATE!
I received my notice of decision. my application for permission to appeal to UT was granted.
Obie, Vinny thanks for your encouragement and help.

Ill be starting a new thread documenting the next steps and of course seeking advice in case it will help someone else in the future.
Obie please check your PM.