Does having Permanent Residence gives you a settled status?

[Abate86]

Hi Guys

I have some few questions to ask. To begin with, I will give few details about myself. I was married to EEA national for about 3 years and 3 months before our divorced date in February 2013. We lived together in the UK from March 2010 to February 2013. I applied for Retained Right of Residence on February and was issued another Residence Card. I got married to a non EEA National in late 2013. She is now living with me in the UK on a Student Visa. From March 2010 to March 2015 will make it five years. As such, I made an application for PR three weeks ago and also made a Spouse Visa application for my wife. All relevant document was submitted. To our surprise, my wife was sent a letter stating that since my application for ILR was still pending, I do not have a settled status. I believe this decision is wrong. Firstly, my application was for PR not ILR. Secondly, PR is automatic permanent residence after five years. I do not know whether I am correct or not. Hence, I would appreciate if anyone can answer my questions below.


(1) If I have regally reside in the UK for five years as a non EEA family member of EEA National, would I not automatically acquired a permanent residence in the UK without making an application for Residence Card?

(2) Is permanent residence in the UK not the same as “settled status”?

(3) Do I need to be issued a Permanent Residence Card before I would have “settled status”?

(4) Am I not within my right to apply for a Spouse Visa for my wife even if I have not been issued a Permanent Residence Card?

[Obie]

Well there is not much i can add you know the law.

PR card is a simple confirmation.

You should pursue legal action.

At least they should have put it on hold.

[Abate86]

Thanks Obie

Is there anybody who has been in a similar situation?

[John]

I think the answer is given by :-

http://goo.gl/khFyrf

You will see that is a long and quite detailed document.

Go to page 33 of 45. Near the bottom of that page you will read :-

Applicants may also have difficulty providing evidence to cover a continuous five-year period when they are applying for a document confirming a permanent right of residence.

So yes, there you are, they are saying that you "are applying for a document confirming a permanent right of residence". In other words you already have Permanent Residence, but seek a document to prove it.

Nevertheless until that document is issued, I can well understand why they would not be able to finalise your wife's application. But they are clearly not justified in making the comments that they have made. In my opinion, more staff training needed!

[Obie]

Thanks Obie

Is there anybody who has been in a similar situation?

You are required to demonstrate to the decision maker that you have acquired the right of Permanent Residence, and an officer may have this difficulty in not knowing whether your ex was a qualified person through out your marriage, whether she had not left the Uk for a period of more than 6 months during a year in that period of marriage, whether you have been a qualified person since divorce.

In the absence of submission dealing with those fact, an officer may have difficulty in establishing your qualification.

Nevertheless if those issue are dealt with then Article 25 of the Directive precludes them, i think, from demanding a PR Stamp.

I encountered similar issue like this in an Entry Clearance case, by a spouse who was trying to bit the 9th July 2012 changes.

Fortunately it was successful in the end.

However the fact was clearly conveyed to the ECO , in written submission and in documentary evidence, save for the PR stamp.

We prevailed in the end. It is necessary to set out the legal fact and policies.

If they then refuse there is a clear case.

[Abate86]

Thank you Guys.

My ex was employed and self-employed during the period we were married for. I submitted documents covering that period for my Retained Right of Residence application in 2013 and I did the same again for my PR application. I have also included evidence of my employment from the date of divorce till date. All together I submitted evidence of economic activities covering 5 years. Concerning my wife's application, I have written to the caseworker to reconsider her decision. I pointed to her that her decision was wrong for two reasons. {1} my application was not for ILR but for PR. {2} permanent residence is automatic after five years and I provided my Certificate of Application, Case ID and application reference number. My wife still have about six months left on her student visa, and she cannot apply for a spouse visa with less than 6 months visa. Therefore, I don't want to wait for my PR to be issued before my wife can make another application for spouse visa.

If the caseworker doesn't accept my explanation or doesnt want to wait for my case to be decided, what appreciate step should I take? Judicial Review or Appeal?

I'll appreciate your advice. Thanks for your help.

[Directive/2004/38/EC]

Writing to the caseworker to reconsider is a good idea.

You may also write to the European Operational Policy Team. They have in the past gently contacted colleagues who do not fully understand the European law issues. Do not ask them to "intervene". Just point out there may be a misunderstanding and encourage them to make sure their collegues understand the status of the person with PR under EU law. The email the European Operational Policy team is (or was) EuropeanOperational@UKBA.gsi.gov.uk

[Abate86]

Thanks for advice Directive/2004/38/EC


I have sent them an email.

Can any experience member advice on what legal action I can take if the Caseworker does not agree with my explanation? Judicial review or appeal or something different?

[Obie]

Judicial review will be the next step.

You ought to be quick about it.

I will suggest a Pre-Action Protocol at this stage in fact.

[Abate86]

Judicial review will be the next step.

You ought to be quick about it.

I will suggest a Pre-Action Protocol at this stage in fact.

Sorry, what is a Pre-Action Protocol?

[Obie]

It a notification you send to your opponent before you file a judicial review, informing them that you may file in a Judicial review.

[eldane]

Pre-Action Protocol for Judicial Review

This protocol applies to proceedings within England and Wales only. It does not affect the time limit specified by Rule 54.5(1) of the Civil Procedure Rules which requires that any claim form in an application for judicial review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose or the shorter time limits specified by Rules 54.5(5) and (6) which set out that a claim form for certain planning judicial reviews must be filed within 6 weeks and the claim form for certain procurement judicial reviews must be filed within 30 days.1

https://www.justice.gov.uk/courts/proce ... l/prot_jrv

[Abate86]

Thanks Guys.

Should I put the warning letter in writing or fill a form?

I sent the Caseworker a letter on Friday 17th of April about the errors in her decision. I would not consider this to be reconsideration as the application has not been refused yet. What she was saying was that my wife's application is invalid because I do not have a settled status. What she said on the letter is below.

"You must make the application or claim using the current version of the correct specified form. Your spouse has an open application for ILR, but no decision has been made yet, therefore your spouse is not settled. Please complete the FLR (FP)."

On my letter to her on Friday, I stated that my application was for a document confirming PR not ILR application. We used FLR (M) for my wife's application because this is the only form for application for leave to remain as spouse of a person with settled status. FLR (FP) is for application for leave to remain on the basis of right to private, therefore it is not applicable to us.

Should I wait for her to respond or proceed with the Pre-Action Protocol? Once more, thank you all for your assistance.

[Directive/2004/38/EC]

I would personally suggest you work constructively with the case worker.

Your focus should be to point out that you already have PR, and to explain why that is true. That your application for a PR card is merely for a convenient confirmation of the already existing PR status.

Why do you think the case worker wrote the letter? Why did she not just reject your wife's application?

[Abate86]

She hasn't reject the application. I think what she was trying to point out was that I have applied for ILR and a decision hasn't been reached yet. The caseworker is inept. She doesn't know the difference between PR and ILR.

[Directive/2004/38/EC]

Far from the case worker being inept, I would say she is potentially helpful and open. She could just reject the application, and instead she is engaging in dialogue with you. This is rare and wonderful!

You should look through https://www.gov.uk/government/collectio ... d-guidance to see if there is information you can point her to.

See specifically https://www.gov.uk/government/publicati ... -residence

[vinny]

If you have already applied for confirmation of PR, I can understand why the case worker would want to wait for it. Else, she would also have to decide on your status first, by herself, or pass it on to the European department.

[Obie]

I was furious at first, that the caseworker had refused the application. But having read OP subsequent post, I realised the caseworker was only being courteous in replying to him, and informing him that they have put his application on hold awaiting a conclusion from EU team as to whether he is eligible for a confirmation .

They were perfectly entitled to established from their specialist EU team , whether or not you are entitled to thee confirmation you sought.

If you had not made a application, the same process would have been undertaken.

[Abate86]

Basically, my reason for calling her inept is because she doesnt seem to understand the differences between ILR and PR. She might be able to reject my wife's application on the basis that she hasn't seen the PR, but the decision wouldn't stand in the court if I'm given Permanent Residence Card before the Judge decides the case. My application is already about a month old and it might still take months before we get to the appeal stage. It would be better if she wait for my application to be decided or she can confirm my PR status with the EEA applications team.

[Obie]

Well in UK law both are considered as settled status.

Making a mistake between ILR and PR is not a big a deal.

What matter is what they do in substance and not form.

You can take the matter up, but so long as your case has not been refused, I don't think you will get far.

You partner does not fall within the directive, and the application you are making is purely a national legislative application.

If you were refused benefit, the right to employment or the right of entry and told to wait until your application is resolved, then that is a very serious matter.

But saying your wife's application will be put on hold until your confirmation is granted, is hardly Dreyfus affair.

[Abate86]

I was furious at first, that the caseworker had refused the application. But having read OP subsequent post, I realised the caseworker was only being courteous in replying to him, and informing him that they have put his application on hold awaiting a conclusion from EU team as to whether he is eligible for a confirmation .

They were perfectly entitled to established from their specialist EU team , whether or not you are entitled to thee confirmation you sought.

If you had not made a application, the same process would have been undertaken.

A direct quote of her letter ✉ is below.

"You must make the application or claim using the current version of the correct specified form. Your spouse has an open application for ILR, but no decision has been made yet, therefore your spouse is not settled. Please complete the FLR (FP)"

[Obie]

Well that is wrong. Fullstop.

FLR (FP) is likely to fail, given your circumstances, of that I am sure

[Abate86]

Well that is wrong. Fullstop.

FLR (FP) is likely to fail, given your circumstances, of that I am sure

You see, it appears that she wanted to trick me into making the wrong application so that she can easily refuse it.

[John]

As regards your current wife you say :-

She is now living with me in the UK on a Student Visa.

What is the expiry date printed on her current visa?

[Abate86]

First week of October. She cannot use FLR (M) with a visa less than 6 months. That was the reason I put in the application application before the deadline to apply.