ILR refused on 10 Years (EEA period)

[CityGirl31]

Hi There,

My sister's application for ILR based on 10 years long residence was recently refused by HO. She received the letter confirming the refusal today, however the initial application (SET LR) was submitted April 2015. Note the decision was made way past the 6month deadline.

My sister and i moved to the UK in 2004 as dependants (of our mother) on a family member of an EEA member visa. She has never left the UK since we arrived. The bulk of her time since she arrived in the UK was in education and then working. After the 5 year EEA family member qualification period, our PR application was declined and after an appeal process reinstated (Retained right of residence) until November 2015. Note my mother migrated to the states in 2010.

The basis of the refusal was that my mother (who we were initially her dependants) was no longer exercising her treaty rights. However, my sisters application in April 2015 was not based on the EEA application. Her application was in her own right on the basis of her long residence. We intend to appeal as this decision.

Does anyone have advice or opinions on what options we have available? Surely the decision is not accurate. How long does the appeal process take?

Thanks for your help!

[noajthan]

Hi There,

My sister's application for ILR based on 10 years long residence was recently refused by HO.

...

Does anyone have advice or opinions on what options we have available? Surely the decision is not accurate. How long does the appeal process take?

Thanks for your help!

On what grounds do you think you can appeal?
Procedure?

Why was confirmation of PR refused previously - was mother or someone else the EEA sponsor?
That should have rung alarm bells.

If PR (to be acquired over just 5 years) under EU regulations failed how could you be advised ILR on long residence, including those years, could possibly succeed?!

As explained by member secret.simon elsewhere recently...

By becoming the direct family member of an EEA citizen exercising treaty rights in the UK, you are ineligible for any application under the UK Immigration Rules (See Section 5 of the Immigration Rules) and hence are ineligible for ILR.

5.Save where expressly indicated, these Rules do not apply to those persons who are entitled to enter or remain in the United Kingdom by virtue of the provisions of the 2006 EEA Regulations.

But any person who is not entitled to rely on the provisions of those Regulations is covered by these Rules.

If you/sister had obtained RoR have you/sister been exercising treaty rights in your own right since then?
Were you advised to do so?

[CityGirl31]

Thanks for your reply. To be honest I do not know what grounds the appleal will be on. We've passed the decision letter to a solicitor who will come back to us shortly.

With regards to the 10 LR I made a successful application to the HO in 2014 based on the same criteria and it was approved within 3 months (Nov 14). As I had been in the country for 10 years.
I was hoping that her application would be approved in the same manner. The confirmation of the PR was initially refused in 2009 as the HO was not convinced that my mother had exercised her treaty rights. However we were given an additional 5 years (retained right of residence) in 2010.

[noajthan]

Thanks for your reply. To be honest I do not know what grounds the appleal will be on. We've passed the decision letter to a solicitor who will come back to us shortly.

With regards to the 10 LR I made a successful application to the HO in 2014 based on the same criteria and it was approved within 3 months (Nov 14). As I had been in the country for 10 years.
I was hoping that her application would be approved in the same manner. The confirmation of the PR was initially refused in 2009 as the HO was not convinced that my mother had exercised her treaty rights. However we were given an additional 5 years (retained right of residence) in 2010.

The world & HO has moved on since 2014.
HO tends to play hard ball now even if it didn't a few years ago.

My understanding is RoR puts sister on EU migration path.
If sister had exercised treaty rights she may well have acquired PR in her own right by now.

No harm digging into that. It's a much less financially-demanding migration route too.

What's her timeline of economic & other activity in this country since the grant of RoR?

• Working?
  Studying?

&/or ??

[CityGirl31]

Thanks for the speedy responses noajthan.
It's unbelievable how things change so quickly!
With regards to her economic activity, she was in full time education between from 2004 to 2011. Volunteerd at a charity until 2012 and was then offered a permanent paid role at the same organisation in 2012. She recently started A full time postgraduate course.

[noajthan]

Thanks for the speedy responses noajthan.
It's unbelievable how things change so quickly!
With regards to her economic activity, she was in full time education between from 2004 to 2011. Volunteerd at a charity until 2012 and was then offered a permanent paid role at the same organisation in 2012. She recently started A full time postgraduate course.

So looking at period after grant of RoR to your sister, i.e. since 2010...

For studies to count towards PR, a student on EU migration route, under EU rules, needs to have had CSI (health insurance).
Or was this secondary/sixth-form education?
Was the RC (RoR) granted to a 'child in education' ?

Volunteering is tricky. It may not count as a 'worker' status but rather as the 'self-sufficient' category of qualified person (for which CSI is also required).

You will need to dig into whether sister's PR clock will have kept running as a volunteer.
See HO guidance:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- ref page 23+ on charity work.

Work is clearcut, the EU likes workers.
So worst case sister's PR clock may have restarted in 2012.

See HO guidance on RoR:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- ref page 39+ for PR after RoR

It's a complex situation & I'm not familiar with the details - suggest seek out an experienced professional advisor for this case.

[oni82]

Many people have applied for ILR LR by having a EEA2 Visa period! I am surprised that many people say NO it is not possible when there are many people who have succeeded.

Hi There,

My sister's application for ILR based on 10 years long residence was recently refused by HO.

...

Does anyone have advice or opinions on what options we have available? Surely the decision is not accurate. How long does the appeal process take?

Thanks for your help!

On what grounds do you think you can appeal?
Procedure?

Why was confirmation of PR refused previously - was mother or someone else the EEA sponsor?
That should have rung alarm bells.

If PR (to be acquired over just 5 years) under EU regulations failed how could you be advised ILR on long residence, including those years, could possibly succeed?!

As explained by member secret.simon elsewhere recently...

By becoming the direct family member of an EEA citizen exercising treaty rights in the UK, you are ineligible for any application under the UK Immigration Rules (See Section 5 of the Immigration Rules) and hence are ineligible for ILR.

5.Save where expressly indicated, these Rules do not apply to those persons who are entitled to enter or remain in the United Kingdom by virtue of the provisions of the 2006 EEA Regulations.

But any person who is not entitled to rely on the provisions of those Regulations is covered by these Rules.

If you/sister had obtained RoR have you/sister been exercising treaty rights in your own right since then?
Were you advised to do so?

[noajthan]

Many people have applied for ILR LR by having a EEA2 Visa period! I am surprised that many people say NO it is not possible when there are many people who have succeeded.

Hi There,

My sister's application for ILR based on 10 years long residence was recently refused by HO.

...

Does anyone have advice or opinions on what options we have available? Surely the decision is not accurate. How long does the appeal process take?

Thanks for your help!

On what grounds do you think you can appeal?
Procedure?

Why was confirmation of PR refused previously - was mother or someone else the EEA sponsor?
That should have rung alarm bells.

If PR (to be acquired over just 5 years) under EU regulations failed how could you be advised ILR on long residence, including those years, could possibly succeed?!

As explained by member secret.simon elsewhere recently...

If you/sister had obtained RoR have you/sister been exercising treaty rights in your own right since then?
Were you advised to do so?

Indeed; including OP's sister.

Maybe that's what the OP's lawyer said too (as s/he trousered his/her fee).

The point in this case is this person was patently not eligible as her EU journey was ineligible;
so that contributed to her failing under UK ILR route too.

Applying for 10 year LR doesn't magically fix
a non-qualifying period under EU rules - as OP has learned to her cost the hard way.

And if ILR with EU component does succeed it's still at caseworker's discretion so noone should count their chickens or bank on it.