Urgent:ROR(Singh)Refused RC revoked NonEea passport retained

[noajthan]

If you don't appeal it may be interpreted as accepting, by default, the HO refusal of the ROR RC application;
ie the application made to regularise (or at least confirm) applicant's continuing stay in UK after divorce and which supersedes the original SS RC.

[noajthan]

fyi - about revocation of RC and administrative removal.

Forewarned is forearmed.

See https://www.gov.uk/government/uploads/s ... _clean.pdf

Appeal rights
If a person has a document revoked in line with regulation 20, they will have an in-country right of appeal against that revocation

[lurli]

If the applicant has been exercising treaty rights since divorce, it is hard to see how the refusal decision would stand. The applicant would be entitled to PR confirmation. It is misconceived to conclude that the time spent during divorce does not count towards PR. Appeal now, if u need assistance with completing IAFT-4 message me, I will assist, better still get an expert in EU free movement law to deal with this. Get it wrong and it could go very very wrong. Good luck!

[nwaotu]

Yes!

See link below i.e.home office guidance note for ROR applications. Under section 10 (5) you will see the needed documents for ROR applications following divorce. Tell me if it states there evidence of former eea national residence "untill divorce"
Ukba just employ incompetent people to work for them!

https://www.gov.uk/government/uploads/s ... _clean.pdf

Ok.

So original evidence of marriage certificate and decree absolute demonstrated that marriage lasted for almost 7 and a half years

Original payslips and bank statements spanning March 2015 to time of application demonstrated that applicant is employed full time and thereby deemed to be exercising treaty rights as if he were an EEA national.

So it is not required to demonstrate that returning British sponsor has resided in The UK right up until divorce?

So to demonstrate that both myself the sponsor and my ex husband, the applicant satisfied the requirement of living for one of those years in the UK, Gas and Water bills were submitted which were print offs of bills from online accounts and so deemed as photocopies.

So would it still be advisable to lodge an appeal and if it is such a lengthy process then what would be the advantages of appealing instead of reapplying?

I guess that us what I'm trying to establish.

Apologies if I seem somewhat 'slow.'

[noajthan]

Yes!

See link below i.e.home office guidance note for ROR applications. Under section 10 (5) you will see the needed documents for ROR applications following divorce. Tell me if it states there evidence of former eea national residence "untill divorce"
Ukba just employ incompetent people to work for them!

https://www.gov.uk/government/uploads/s ... _clean.pdf

Health warning: HO guidance is ofcourse not the law. It is merely guidance (although helpful to some degree).

[lurli]

Case law has moved on, a person applying to retain rights have to ensure that the sponsor is resident in the member state at the time the divorce was initiated. Case C‑218/14.

[sinead1982]

Thank you lurli for you kind offer of assistance in completion of the appeal form although for some reason I don't have the ability to send messages on this site.

Applicant is going to look into getting an appointment with a solicitor for guidance although that can in my experience be a bit of a minefield.

Prior to filing a petition for divorce last year I researched non stop to ensure my now ex-spouse would be able to retain residence in event of divorce and in early stages of enquiries I consulted no less than 4 Immigration lawyers in London, 2 by telephone and 2 face to face and all FOUR said that since I, the returning Brit had not worked and so had not 'exercised treaty rights' in UK since my return from The Netherlands that the Non-Eea family member would be unable to retain residence, information that is a total contradiction to the EIND judgement and just how they could be that wrong was frankly unbelievable.

So when you say things have the potential to go wrong, would that be by NOT appealing?

The applicant is not eligible for PR yet.
It is was merely ROR that was applied for but the mention of time between decree absolute being issued and retained rights being confirmed NOT being able to be counted towards 5 year residency for PR is stated in FOI request response below:

(Doesn't make sense to me either if any cards issued are merely a confirmation)

https://www.whatdotheyknow.com/request/ ... dence_what

[noajthan]

Thank you lurli for you kind offer of assistance in completion of the appeal form although for some reason I don't have the ability to send messages on this site.

...

Members cannot enjoy the Board PM feature until 30 (genuine) posts have been clocked up.

[Obie]

Refusal seemed flawed.

Eind does not require British citizen to be exercising treaty right.

Non EEA does not qualify for PR until Dec 2016, provided of course he was working from September 2015 to December 2016.

Appeal decision.

[lurli]

If the appeal is not handled by someone who actually knows EU law in depth, things could go wrong rather quickly, most of the solicitors don't seem to get to grips with EU free movement law, be sure you are being competently represented.

Prior to filing a petition for divorce last year I researched non stop to ensure my now ex-spouse would be able to retain residence in event of divorce and in early stages of enquiries I consulted no less than 4 Immigration lawyers in London, 2 by telephone and 2 face to face and all FOUR said that since I, the returning Brit had not worked and so had not 'exercised treaty rights' in UK since my return from The Netherlands that the Non-Eea family member would be unable to retain residence, information that is a total contradiction to the EIND judgement and just how they could be that wrong was frankly unbelievable.

I would not go near solicitors like the ones you spoke with, as obie said, if applicant wont be qualified for PR till 2016, then they have most certainly retained rights, get on with appeal now!

[sinead1982]

Thank you all for your support.

Am looking for local solicitors now though understand that I cannot ask anyone for recommendations on here.

I really don't feel competent enough to complete appeal form myself so will try to get it done within the next 2 days or so by a professional.

Are there any centres that can assist for a fee of course but where one would be sure of finding experts on EU freedom of movement/directives?

So is it correct Obie that 5 years towards PR would begin when Non-Eea entered UK in December 2011 with sponsor and NOT from when RC under SS had been issued in September 2012?

I had always thought as much but wasn't certain it was the case.

And so refusal was flawed even though utility bills provided with application were NOT originals?

[sinead1982]

My sincere apologies if I seem to enquire endlessly but I would just like to clarify a point.

- If the evidence that was provided of 'living in the UK' for one year during the marriage' and 'returning BC having resided in the UK up until point of divorce' was insufficient then would it be appropriate to reapply with insurmountable amount of evidence?

- So if it is a rather long time before appeal on refusal would be heard, Is the main point of appealing to 'safeguard' against removal and thereby 'buy time' to gather all evidence and reapply?

-Would skipping appeal and going straight on to reapplying have potential ramifications for applicant?


Of course when they refuse wrongly these refusals must be challenged else nothing will change but on an individual level would appealing be to safeguard and buy time so to speak?

[Obie]

There are 2 issues here.

1. You ought to have sent original documents, and it was an error on your part that you did not.

The second issue of the revocation, which is what troubles me most.

To revoke, the burden is transferred from the applicant to the Secretary of State, as opposed to the applicant.

The Secretary need to provide proof that on a balance of probabilities the person, does not have a right of residence and therefore not entitled to a document evidencing that right.

You failure to provide an original bill could and should not have led to that conclusion.

There are other verifiable means by which they could have ascertained whether or not you were resident in the UK, like exercising their power under Section 40 of the UKBA Act 2007.

I think an appeal will be fine.

My best advise is to put an appeal, and reapply in December for Permanent Residence or apply again for a Residence card.

[Obie]

There are 2 issues here.

1. You ought to have sent original documents, and it was an error on your part that you did not.

The second issue of the revocation, which is what troubles me most.

To revoke, the burden is transferred from the applicant to the Secretary of State, as opposed to the applicant.

The Secretary need to provide proof that on a balance of probabilities the person, does not have a right of residence and therefore not entitled to a document evidencing that right.

You failure to provide an original bill could and should not have led to that conclusion.

There are other verifiable means by which they could have ascertained whether or not you were resident in the UK, like exercising their power under Section 40 of the UKBA Act 2007.

I think an appeal will be fine.

My best advise is to put an appeal, and reapply in December for Permanent Residence or apply again for a Residence card.

[lurli]

The applicant is no longer a family member of the sponsor, revocation seems to be the correct decision. The applicant would need need confirmation of his retained right.

[Obie]

That may be the case. But to revoke right of residence , which a residence card covers under regulation 17 (1) and 17 (2 ), the Home office still has the burden of proving that.

[Richard W]

That may be the case. But to revoke right of residence , which a residence card covers under regulation 17 (1) and 17 (2 ), the Home office still has the burden of proving that.

I think the revocation would come under Regulation 20(5)(b):

An entry clearance officer or immigration officer may at any time revoke a person’s EEA family permit if–
(a) [...] or
(b) the person is not at that time the family member of an EEA national with the right to reside in the United Kingdom under these Regulations or is not accompanying that national or joining him in the United Kingdom.

However, has the right of residence been revoked? I think not, strictly speaking. However, revoking the residence card makes it a lot harder to 'exercise treaty rights'. No 'exercising', no right of residence.

[vinny]

20(5) is applicable to EEA family permits.

-A letter is enclosed to say that previous RC has been revoked

Perhaps

(2) The Secretary of State may revoke a registration certificate or a residence card or refuse to renew a residence card if the holder of the certificate or card has ceased to have, or never had a right to reside under these Regulations.

[sinead1982]

Good evening forum.

So latest update is that applicant had a consultation at IAS. 

Thought that since they are kind of non profit organisation they may be best to see.

From what was allegedly advised I kind of feel that the £150 consultation fee could have been used to get better quality advice but I may be wrong.

-Adviser knew nothing of Eind judgement.

-Advised that if another application for ROR is made then appeal would have to be withdrawn as the two cannot both be pending simultaneously.  - Is that correct? 

-Advised against another application, reason cited was that whilst current refusal only questions whether I the British citizen sponsor has resided in the UK up until decree absolute was issued, a refusal on a further application could be based on 'other issues' that HO 'decide to come up with.'

-Fees for Adviser to take on appeal are £1200 which applicant being on a rather low income genuinely does not have.

-Adviser advised applicant to provide with appeal form, cover letter entitled 'Grounds for appeal' and advised that grounds for appeal are:

-that although reasons for refusal letter DOES mention that applicant does not qualify to 'retain right,' that the reasons for refusal letter and 'refusal to issue' notice BOTH state a refusal to issue PR when PR was never applied for. 

-That BC sponsor has indeed resided in UK
and there is extensive additional documentary evidence to demonstrate this.

-That British gas bills are referred to as photocopies when they are actually print outs of bills from online account.  (grounds for appeal?!)

Appeal must be received by 26th May and since applicant has neither £1200 or proficiency in English, then I will prepare the appeal form and cover letter as suggested by adviser but are those the correct grounds that should be cited in this instance?

If I have a sworn affidavit that I the sponsor have been permanently resident in the UK since returning from host member state on 14/12/2011 until present, should it accompany the appeal form or not?

I am gathering all evidence of residency of both sponsor and applicant that I can lay my hands on and which will be required for either oral hearing or reapplication (unsure since Adviser is adamant that it's 'one or the other.')

Water bills that have arrived today are reprints of originals in full colour.

British Gas bills from February 2012 to October 2015 arrived also and are black and white and so are identical to those which were not accepted with application although they have agreed to send out a letter confirming they have issued these bills.

Used my debit card in Tesco the day before, the day of and the day after decree absolute issue. 

Adviser also stated that although applicant entered UK on 14/12/2011 (accompanied by British citizen spouse returning from host member state and thus residing in line with regulations ever since.) that the period of time from date of decree absolute until ROR is CONFIRMED can NOT be counted towards the 5 year requirement for PR.

If anyone can assist with any of the points raised here it'd be highly appreciated.

[sinead1982]

Anyone?

[lurli]

Nothing precludes you from submitting another EEA application whilst pursuing an appeal.

Adviser also stated that although applicant entered UK on 14/12/2011 (accompanied by British citizen spouse returning from host member state and thus residing in line with regulations ever since.) that the period of time from date of decree absolute until ROR is CONFIRMED can NOT be counted towards the 5 year requirement for PR.

The highlighted statement is unfounded and clearly wrong.

[Obie]

Anyone?

Most of what the adviser said appears wholly senseless.

Period of time since he arrived will be added.

[sinead1982]

Thank you both.

So what essentially are the grounds of appeal?
To challenge the reason for refusal that British citizen had not resided in UK up until divorce?

(Even though insufficient documentary evidence was submitted to demonstrate such?! )

Is it relevant that refusal was to issue PR when PR was never applied for or not?

[sinead1982]

Appeal form sent today by special delivery.

Fingers crossed.

Once all additional evidence is ready will reapply.

-Should appeal be withdrawn at any stage of reapplication or only if and when RC is issued to confirm ROR?

-Is Evidence of treaty rights and residence in host member state supposed to be submitted in ROR applications? (It was included in the first ROR app that got refused but is it necessary/required?)

It's definitely required again for PR application, right?


Many thanks