Retained Right of Residence Urgent Advice Needed

[Imshzd]

Hello Everyone,

I received a refusal letter for my PR application today.

I currently have ROR.

According to the HO they accept i was exercising treaty rights for a period of 4 years and 1 month. This is the point where i had made my application for ROR which was initially refused, my visa was revoked (because the HO lost my application and refused to acknowledge i had applied at all) and my employment was terminated because of this.

To summarize i was given no right to appeal and had to launch a judicial review in the high court (ruled in my favour)and then the lower immigration tribunal where the HO withdrew their decision and then took over a year to issue me ROR. During which time I was unable to work.

The HO now claim i still had the right to work and could have applied for COA while i was waiting an outcome of my appeal and hence set aside my claim that i was unable to work because of the mistake they made.

I never knew at the time this was possible, i went to multiple lawyers, the Citizen Advise Bureau, posted on this forum and even called the HO to ask them if they could issue me a right to work documentation while i was awaiting a decision and I was told i had to wait for the outcome. My employer made several attempts to contact the HO to verify my right to work before sacking me but was told i had no right to work.

I am now pondering what my next step should be?
1. Does my case have any merit?
2.Should i appeal the decision and if so on what basis? and can anyone recommend good solicitors my experience with them so far has been a nightmare
3. Or should i apply under the 10 year route (but will this employment gap also effect the 10 year application)

I will be grateful for your input.

Thanks!!

your 5 year PR clock starts after that gap,i.e ROR RC issued date to onwards 5 years.
Ignorence of law is no excuse.

[vinny]

M.

The HO now claim i still had the right to work and could have applied for COA while i was waiting an outcome of my appeal and hence set aside my claim that i was unable to work because of the mistake they made.

I never knew at the time this was possible, i went to multiple lawyers, the Citizen Advise Bureau, posted on this forum and even called the HO to ask them if they could issue me a right to work documentation while i was awaiting a decision and I was told i had to wait for the outcome. My employer made several attempts to contact the HO to verify my right to work before sacking me but was told i had no right to work.

How did they expect you to apply for another Certificate of Application, without making another application, when you were appealing?

Do you have evidence that they were unable to confirm your right to work for your employer?

They cannot now claim that you had the right to work at that time if they were unable to confirm your right to work at that time. These two statements are self contradictory.

[econ123]

Thank you for your response Vinny.

I have now requested my previous employer to issue me a copy of my notice of termination of employment.

But in the letter the HO sent me they clearly state even if you would have provided us evidence that you were sacked due to the revocation of your visa you still could have worked by applying for COA when your appeal was ongoing.

How exactly does one apply for a certificate of application?

[vinny]

How exactly does one apply for a certificate of application?

I would guess when you make an application for a residence card or a permanent residence card.

Hence, the name 'Certificate of Application'?

[Carling40]

Hi
If your COA confirmed the right to work and you subsequently appeal a decision You're still allowed to work whilst your appeal is still pending. There's an email address you send a request to and they send you another COA confirming your continued right to work. What's strange in your case is is that your employer contacted them and they gave a negative verification which was wrong for them to do as they would have been notified by the tribunal of your appeal.

[vinny]

Section 3C is not applicable.

Why would they grant another COA with a right to work after having refused the original application that is under appeal?

[Carling40]

I apologise if i've missed something here, from what i gather the OP..

"Married an EEA national in Aug 2007
Got divorced in Feb 2012
I was issued a ROR in Oct 2015 which expires in Oct 2020"

"I applied for a retained right of residence in 2012" if was OP working from Feb 2012 till August 2012 then OP has acquired Permanent Residence as of Aug 2012 (4.5 ex EEA treaty rights + 5 months Non-EEA employment= 5years in total.

In my opinion the OP should appeal the decision and base the argument on the fact that PR appears to have been acquired in August 2012 on the assumption that they non eea was working from divorce (Feb 2012) till the end of the 5 year period (Aug 2012).

[Obie]

How exactly does one apply for a certificate of application?

I would guess when you make an application for a residence card or a permanent residence card.

Hence, the name 'Certificate of Application'?

I believe their are procedures in place for getting a replacement or renewed COA, if a person COA expired without their appeal having being finally determined .

[econ123]

Thank you for your response guys.

I do not believe i received a COA when i applied initially as the HO lost my application.

I argued in my PR application since HO told my employer i had no right to work, surely the gap in my employment is their fault.

Do you guys think its something that can form the basis of an appeal?

[vinny]

Yes. It's understandable that employers panic in the absence of confirmationary documents.

Carling40 also made a good point.

[Carling40]

I think you should appeal the decision and base the argument on the fact that PR appears to have been acquired in August 2012 on the assumption that you the non eea was working from divorce (Feb 2012) till the end of the 5 year period (Aug 2012).

Do you have evidence of working for this period? if yes, then in you don't really need to worry too much about proving your right to a judge because your ex 4.5 years treaty rights has already been established with your ROR and (hopefully you have photocopies of everything you've sent to the Home office of your ex treaty rights). This is what you need to focus on as its your primary argument as its the easiest to prove.

its important to pick the right argument to win the war.

I think you may be able to prove to the judge the Home Office is responsible for the break in your employment after you were issued with ROR in 2015, you can ask the tribunal to provide evidence of them notifying the HO of your lodged appeal, but this only wins a fight. the reality is that there is a break in treaty rights due to their negligence. I'm not sure even admittance by HO of this will make you win the war. i would use this as ammunition to help you win the war.

You've got the ammunition and you've got the primary argument, i pray you win the war.

[econ123]

Again a big thank you for your responses guys.

With my ex the HO have refused to acknowledge the first two years of self employment that is 2008/09 & 2009/10 because i was unable to provide SA 302s or any official confirmation from HMRC about the amount earned (i provided everything else accounts,invoices,references,receipts of tools & equipment, accountants letter). So the 5 year clock starts from the 6th of April 2010. So i am clocking in 4 years and 1 month at the moment.

Now the twist is is tax returns were submitted for the 2 tax years in questions, i even have the copies. The HMRC has actually confirmed via the telephone they have received the tax returns, but for some reason they haven't uploaded the earnings and expenses figures on to their record. It might be because the tax returns were submitted late.

When the HO carried out interdepartmental checks they were give earnings figures for the all the years bar 2008/09 & 2009/10.

I was wondering if i should also send in a letter of reconsideration with additional proof (such as a letter confirming the 2 tax returns were submitted & a termination of employment letter) along with the appeal.