EEA PR Refused unjustly

[Carling40]

Hi all

i could do with advice from anyone who's been successful with reconsideration request.

i'm non eea married for over 5 years and divorced, i applied for confirmation of PR in November 2015. My ex-spouse was self employed.

my application was refused 24 May...

"Your decree of absolute(divorce) certificate states you have been married for over 5 years and therefore the Home office can accept that you have been married for over 3 years and with the documents provided shows you have resided in the united kingdom for at least 1 of those years.

you would also need to provide evidence that the eea national was a qualified person and that you were therefore were residing in accordance with the regulation at the point of divorce. in order to do this you would need to provide evidence that the eea national was exercising free movement rights when the decree was issued"

"No evidence has been provided to show your former spouse was exercising treaty rights at time of divorce"

You have therefore failed to provide evidence that you meet the requirements of regulation 10(5) and you have not retained a right of residence following divorce, or that you have resided under the regulation for 5 continuous years to qualify for permanent residence.

here's the interesting/annoying bit, divorce was made absolute middle of October 2015, and i provided a profit and loss account statement from her accountant from April 2015 till 31 October 2015 and invoices for the same period, as tax return not due at time of divorce.

they said invoices were "handwritten" (did they expect typed invoices) and was provided until 10 September 2015, which is another error as the invoices provided as from April 2015 (end of tax year) until 31 October 2015 in line with the profit and loss account provided by her accountant.

i feel this is unjustified (happy to be corrected ofcourse) and i need to know how i go about sending a reconsideration request and appeal.

i currently work and that needs to carry on, thoughts please
Thanks

[smallpie]

@ carling,

Sad..

Did they give appeal options?

[Carling40]

@ carling,

Sad..

Did they give appeal options?

yeah they did, mate. am just in dilemma whether its possible to request a reconsideration and appeal at the same time because i cant afford to lose my job, so i definately must appeal and at the same time i dont want to wait a year for appeal to be heard over a glaring error which is embarrassing to say the least.

[smallpie]

@ carling,

Sad..

Did they give appeal options?

yeah they did, mate. am just in dilemma whether its possible to request a reconsideration and appeal at the same time because i cant afford to lose my job, so i definately must appeal and at the same time i dont want to wait a year for appeal to be heard over a glaring error which is embarrassing to say the least.

Am sure from this forum, cases have been appalled and reconsideration requested, both at same time.
Pointing out all grounds and errors.

Initial Decision was overturned.

Nothing suggest not doing both bro..

[noajthan]

Hi all

i could do with advice from anyone who's been successful with reconsideration request.

i'm non eea married for over 5 years and divorced, i applied for confirmation of PR in November 2015. My ex-spouse was self employed.

my application was refused 24 May...

...

here's the interesting/annoying bit, divorce was made absolute middle of October 2015, and i provided a profit and loss account statement from her accountant from April 2015 till 31 October 2015 and invoices for the same period, as tax return not due at time of divorce.

they said invoices were "handwritten" (did they expect typed invoices) and was provided until 10 September 2015, which is another error as the invoices provided as from April 2015 (end of tax year) until 31 October 2015 in line with the profit and loss account provided by her accountant.

i feel this is unjustified (happy to be corrected ofcourse) and i need to know how i go about sending a reconsideration request and appeal.

i currently work and that needs to carry on, thoughts please
Thanks

Had you applied for a ROR RC previously?

Did you provide originals of all supporting documentary evidence (aside from the invoices)?
What else did you submit to demonstrate sponsor's self-employment?

You can get into the head of the caseworker weighing up your case and assessing your sponsor's status, here:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- ref page 18+

Was sponsor residing and exercising treaty rights in UK at the time of initiation of divorce proceedings? (Case C‑218/14)
Did you demonstrate this point?

See related ROR (not PR) case that was refused on question of sponsor's status / treaty rights (similar apart from that member's Surinder Singh element):
http://www.immigrationboards.com/eea-ro ... 09251.html

[Carling40]

Hi Noajthan
No I didn't have ROR RC
I got married in April 2010 and divorced October 2015, I've been working till date

For evidence of self employment for ex, I provided SA302 for 2010, 2011, 2012, 2013, and 2015. I then provided invoices from April 2015- 31 October 2015. Divorce was about 14 October.
I also provided profit and loss accounts for April 2015-31 October 2015 to support the invoices. I also provided flyers, business card, yellow page advert.

Divorce proceedings started in April 2015 so this was covered in the sa302 for year ending 2015.

They acknowledged that the marriage lasted for 5 years and 1 year of that was spent in uk.
They made no mention of my activity since divorce my employer has got confirmation of right to work twice and noted I'd provided my 5 year work history from 2010 till 2015 and payslips for August, September and October application submitted 20 November before payday lol

Am I missing something i should have provided?

[noajthan]

Hi Noajthan
No I didn't have ROR RC
I got married in April 2010 and divorced October 2015, I've been working till date

For evidence of self employment for ex, I provided SA302 for 2010, 2011, 2012, 2013, and 2015. I then provided invoices from April 2015- 31 October 2015. Divorce was about 14 October.
I also provided profit and loss accounts for April 2015-31 October 2015 to support the invoices. I also provided flyers, business card, yellow page advert.

Divorce proceedings started in April 2015 so this was covered in the sa302 for year ending 2015.

They acknowledged that the marriage lasted for 5 years and 1 year of that was spent in uk.
They made no mention of my activity since divorce my employer has got confirmation of right to work twice and noted I'd provided my 5 year work history from 2010 till 2015 and payslips for August, September and October application submitted 20 November before payday lol

Am I missing something i should have provided?

Evidence appears comprehensive and seems to have most if not all bases covered.

Was anything said about genuine & effective work?
Any intimation that the HO's somewhat controversial MET/PET tests have been applied to your sponsor? (& results found wanting)

[Carling40]

Hi Noajthan

Thanks for taking your own time and going through the motions with me, I sincerely appreciate it.

There was no mention of the MET/PET test anywhere or any mention of genuine and effective work.
I provided evidence of adverts on yell, business cards and flyers to show work was genuine and active and it was stapled to the invoice booklet.
The case worker saw the invoices which they mentioned it was handwritten but up till 10 September 2015 when it was till 31 October 2015. There was no mention of the SA302 for 5 years and the Profit and loss accounts April 2015-31 October 2015, both were original.

[smallpie]

@ carling,

I suggest you go for reconsideration, and the appeal same time.
All points and documents provided should be raised..

In some cases, reapplying was done..

Don't know if you consider that too..

[smallpie]

@ carling,

they raise emphasis on the hand written invoices, to them seems not original documents.

Is there any way you could point out reasons for hand written invoices and its genuinety. And in relation to other supporting documents provided.

[omonile]

Permanent right of residence 15.—(1) The following persons shall acquire the right to reside in the United Kingdom permanently(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; (b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years; (c) a worker or self-employed person who has ceased activity; (d) the family member of a worker or self-employed person who has ceased activity; (e) a person who was the family member of a worker or self-employed person where(i) the worker or self-employed person has died; (ii) the family member resided with him immediately before his death; and (iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;

Hi carling40, The updated version of the 2006 european regulation indicated that your wife has acquired permanent residency before your divorce hence you dont need to sow that she was excercising treaty right on decree absolute.Check section 10 as well to be better informed if Ror.

[noajthan]

...

Hi carling40, The updated version of the 2006 european regulation indicated that your wife has acquired permanent residency before your divorce hence you dont need to sow that she was excercising treaty right on decree absolute.Check section 10 as well to be better informed if Ror.

Good point.

If sponsor can show good evidence this can help as its possible PR was acquired on or around 5th wedding anniversary (for both parties).
That is, assuming both parties have also resided in UK since 2010 and neither party has enjoyed any prolonged absences from UK since 2010.

Proof of both parties' identity, relationship and residency will be required.

[Arshsam]

@ Carling,

Really Sad

Please this is the time you have to be strong, and everyone at here trying and pray for you...

1. did you apply through solicitor or by yourself ?

2. Reconsideration letter + Appeal, what's your thinking ? go for both in my opinion...

3. Request "Notjustok" for reconsideration letter content, he's just done recently so that will help alot...

Don't you worry mate InshaAllah all going to be good.

[Carling40]

...

Hi carling40, The updated version of the 2006 european regulation indicated that your wife has acquired permanent residency before your divorce hence you dont need to sow that she was excercising treaty right on decree absolute.Check section 10 as well to be better informed if Ror.

Good point.

If sponsor can show good evidence this can help as its possible PR was acquired on or around 5th wedding anniversary (for both parties).
That is, assuming both parties have also resided in UK since 2010 and neither party has enjoyed any prolonged absences from UK since 2010.

Proof of both parties' identity, relationship and residency will be required.

Thanks Noajthan and omonile
Am aware of this point and had this option covered in the application just in case they decided to ask for ex work details till absolute.
They actually confirmed marriage lasted for 5 years. I provided a letter from HMRC (SA302) for 2010, 2011, 2012, 2013, 2014, and 2015. So that is enough for 5 years continuous employment I'd think and covers the point you've raised.
I thought ahead and covered the other scenario by providing invoices from April 2015-31 October 2015 and profit and loss account from her accountant to back up the invoices. Evidence of tax paid for the 5 years were also provided.
So am at a loss why they've said the invoices were till 10 September 2015 when there's clearly the profit and loss account with dates till 31 October on original letterhead paper from the accountant.

Do you agree based on the above I have grounds to request reconsideration based on the fact they have clearly missed relevant information that was in their possession?

[noajthan]

...

Thanks Noajthan and omonile
Am aware of this point and had this option covered in the application just in case they decided to ask for ex work details till absolute.
They actually confirmed marriage lasted for 5 years. I provided a letter from HMRC (SA302) for 2010, 2011, 2012, 2013, 2014, and 2015. So that is enough for 5 years continuous employment I'd think and covers the point you've raised.

...

Do you agree based on the above I have grounds to request reconsideration based on the fact they have clearly missed relevant information that was in their possession?

Yes , there seems to be grounds for reconsideration:
Documents appear to have been overlooked or misread.

However, not sure you will have made the case strongly enough that your sponsor had acquired PR already (by April 2015?); which means there was no need for sponsor to continue to exercise treaty rights anymore that.
Don't expect a HO caseworker to join the dots for you, you will have to package your case and spoonfeed the caseworker.

In fact if sponsor had acquired PR by last April then you should have acquired PR by then too.
So the divorce aspect to this case (eg timeline & each parties' activities at the time around divorce) is rendered irrelevant.

[Carling40]

Hi Noajthan
I couldn't agree any more with you, I know a judge would clearly identify the divorce is irrelevant as there's evidence that shows treaty rights exercised continuously for 5 years. But as a tax payer I don't want to be burden on the public purse by going appeal.
I don't suppose you have a polite reconsideration letter I could use? I can't trust myself to be polite at minute

[noajthan]

Hi Noajthan
I couldn't agree any more with you, I know a judge would clearly identify the divorce is irrelevant as there's evidence that shows treaty rights exercised continuously for 5 years. But as a tax payer I don't want to be burden on the public purse by going appeal.
I don't suppose you have a polite reconsideration letter I could use? I can't trust myself to be polite at minute

I don't have such a template.

Suggest take rest of day off, go at it fresh tomorrow.

[omonile]

...

Hi carling40, The updated version of the 2006 european regulation indicated that your wife has acquired permanent residency before your divorce hence you dont need to sow that she was excercising treaty right on decree absolute.Check section 10 as well to be better informed if Ror.

Good point.

If sponsor can show good evidence this can help as its possible PR was acquired on or around 5th wedding anniversary (for both parties).
That is, assuming both parties have also resided in UK since 2010 and neither party has enjoyed any prolonged absences from UK since 2010.

Proof of both parties' identity, relationship and residency will be required.

Hi Noajthan, i beg tk differ in your assertion above
1. The eea spouse might have acquired permanent residence long before the non eea person fulfil the Five years requirements for Pr , I strongly submit that as long as the non eea spouse can proof any five of eea national exercise of treaty right and not necessarily concurrently with the applicant,and obviously without the 2 years absence, he/she should be fine.

2. No requirement to produce eea national identity if it has been produced during eea2 application.it was settled with this
https://tribunalsdecisions.service.gov. ... c/37491.My

[noajthan]

Hi Noajthan, i beg tk differ in your assertion above
1. The eea spouse might have acquired permanent residence long before the non eea person fulfil the Five years requirements for Pr , I strongly submit that as long as the non eea spouse can proof any five of eea national exercise of treaty right and not necessarily concurrently with the applicant,and obviously without the 2 years absence, he/she should be fine.

2. No requirement to produce eea national identity if it has been produced during eea2 application.it was settled with this
https://tribunalsdecisions.service.gov. ... c/37491.My

Yes, in general any 5 years for the sponsor is a given.

If sponsor had been in UK for donkeys years no attempt at demonstrating treaty rights would have been necessary; in this case I'm treating the couple as a package deal, with everything appearing to start around 2009/2010, based on stated facts.

OP has already confirmed that in this case no prior RC applications appear to have been made (at least not for ROR anyway).

I'm not covering the 'general theory of free movement & everything' as some members are wont to do; I'm responding to the OP's case based on stated circumstances which is all there is to go on.

[omonile]

I see Noajthan .i must commend you for the great job you are doing. Obie and co led well and you are making an excellent contribution as well.Thank you.

[Carling40]

I agree with both of you my ex spouse were married in April 2010 and issued EEA1 and EEA2, hence we acquired PR in April 2015. I did provide evidence in the form of HMRC tax calculation for the 5 years, I knew they'd want to see evidence up to divorce in October 2015 even though I'd already acquired PR in April 2015, hence I provided invoices from April 2015 till absolute and they've said I haven't provided it. Should we get to FTT I'd expect my appeal to be allowed because they've missed out unimpeachable evidence provided.

[noajthan]

I agree with both of you my ex spouse were married in April 2010 and issued EEA1 and EEA2, hence we acquired PR in April 2015. I did provide evidence in the form of HMRC tax calculation for the 5 years, I knew they'd want to see evidence up to divorce in October 2015 even though I'd already acquired PR in April 2015, hence I provided invoices from April 2015 till absolute and they've said I haven't provided it. Should we get to FTT I'd expect my appeal to be allowed because they've missed out unimpeachable evidence provided.

I think you may have confused the issue (in terms of the bundle in front of the caseworker) with making a case for ROR along with evidence of treaty rights up to divorce.

And caseworkers don't seem to take any prisoners despite the findings of cases such as:
https://tribunalsdecisions.service.gov.uk/utiac/37529

once the appellant had established that his wife was exercising Treaty rights for five continuous years since the date of marriage (and before he was divorced), then ... he was from that date someone who had a right of permanent residence which could not be broken by absence from the UK unless in excess of two years.

It may have been better to focus on evidence of marriage (rather than divorce) plus PR being acquired by early 2015.
As it is the caseworker seems to have got hung up over ROR.
And even if spouse had been out of country it wouldn't have mattered after April with your PR in the bag.
(If spouse is somewhat estranged there are ways and means to encourage HO to seek relevant documents if there any critical ones that are 'unavailable').

[Dapson]

Where the invoice is not reflection on the bank account? Or dnt you submit any bank statement of how the money was paid from the self employed ? Can you shed light in to this please

[Carling40]

@Noahjthan
I'd like to clarify having been aware the approach prior to making the application and other precedence by caseworkers in similar cases with my timelines that the HO guidelines is not consistent with the directive. For clarification, I did focus and (to the best of my ability) on the fact continuous treaty rights and residence had been established for 5 years, by providing the corresponding 5 years tax calculations 2010-2015(SA302) which is accepted for mortgage applications stapled together. Error: I'd like to state that "in the list of documents given consideration to" by the caseworker it simply stated "tax calculation 2011" and no mention of 2011-2015, to me that would appear they saw the front page and somehow didn't see the 2011-2015 all stapled together. The case worker also confirmed and accepted that the marriage lasted 5 years. In anticipation of them treating it as an ROR leading to PR I also provided profit and loss accounts letter supporting the invoices raised from sponsors accountant covering the period
ending 2015 till absolute, I note this also was not listed in the list of documents consideration was given to. What more could I have done? I hope you'll concur I gave consideration to establishing the fact continuous 5 year treaty rights had been focused on and PR acquired in April 2015, and the approach taken is not in line with the EEA regulations.

[noajthan]

@Noahjthan
I'd like to clarify having been aware the approach prior to making the application and other precedence by caseworkers in similar cases with my timelines that the HO guidelines is not consistent with the directive. For clarification, I did focus and (to the best of my ability) on the fact continuous treaty rights and residence had been established for 5 years, by providing the corresponding 5 years tax calculations 2010-2015(SA302) which is accepted for mortgage applications stapled together. Error: I'd like to state that "in the list of documents given consideration to" by the caseworker it simply stated "tax calculation 2011" and no mention of 2011-2015, to me that would appear they saw the front page and somehow didn't see the 2011-2015 all stapled together. The case worker also confirmed and accepted that the marriage lasted 5 years. In anticipation of them treating it as an ROR leading to PR I also provided profit and loss accounts letter supporting the invoices raised from sponsors accountant covering the period
ending 2015 till absolute, I note this also was not listed in the list of documents consideration was given to. What more could I have done? I hope you'll concur I gave consideration to establishing the fact continuous 5 year treaty rights had been focused on and PR acquired in April 2015, and the approach taken is not in line with the EEA regulations.

Agreed. Most unfortunate.

A cogent cover letter summarising the above and sent with the bundle to spoonfeed the caseworker may have helped. (Or maybe you sent one originally, which was again overlooked).

Anyway you seem to have two clear points to work with:

• overlooked/misread documents that were supplied;
  sponsor had acquired PR by April 2015 (simplifying case, rendering ROR irrelevant)

Suggest cross ref [2011] UKUT 474 case on that last point.

Ensure residency is amply covered too, leave no 'wriggle room' there and you should be home free.