EEA(PR) refused-Eind ignored, retroactively applying Dec 2016 changes

[greatscott]

ok ,lets try add some detail, maybe I'll get a better response.

2011 BC and non-EU dependants exercise Treaty Rights in EU country.

• child starts 1st year.

2012 Parents move to UK while child completes 1st year. Spouse submits EEA2 application and RC granted. Full disclosure in spouses's application of the child's status as a student and intention to join family in the UK.

2012 child joins parents in UK, submits EEA2 application and RC granted. Full disclosure in application of child's status as a student and relationship.

• child returns to uni to start 2nd year: absent sept- dec (3.5 months).

Returns home.

2013

• child returns to uni until august holidays: absent mid-jan to end-july (5.5 months).

Returns home.

• child returns to uni until december holidays: absent sept to mid-dec (3.5 months).

Returns home.

2014

• child returns to uni until august holidays: absent mid-jan to end-july (5.5 months).

Returns home.

• child returns to uni until december holidays: absent sept to mid-dec (3.5 months).

Returns home.

2015

• child returns to uni for final semester: absent mid-jan to mid-july (5 months).

Returns home. End of studies.

[greatscott]

Received the refusal letter today. Surinder Singh route and they completely ignored Eind case law. It says:
"You have not provided sufficient evidence to demonstrate the your sponsor was a qualified person as a worker, self employed person, self sufficient, etc from xx/xx 2012 when your residence card was issued to the present".

I now have 14 calendar days to appeal.

Desperately need advice please.

[greatscott]

Please stop merging these posts.

This is becoming really confusing. The 'PR refusal' post has nothing to do with the 'Absences' post. IT IS NOT THE SAME APPLICATION!. An application has not even been submitted for the 'Absences' case.

The absences post had nothing to do with the 9 months waiting post. IT IS NOT THE SAME APPLICATION!

Merging these posts is creating the wrong impression, that, for example, the refusal is based on Absences....it is not!

[greatscott]

Does looking for work qualify as exercising treaty rights, regardless of whether this is carried out through job centre, or on one's own?

And if so, what constitutes evidence...print outs of every application made over 5 years? How many is sufficient. Anyone got any experience with this?

Thanks

[greatscott]

If you insist on merging every topic I have a question about could you please amend the title to include all the queries I have. That would help as some people might have had some experience and able to respond because its not hidden under a topic that is not relevant.Thanks

[greatscott]

Could you change the heading of this topic please as I urgently need the information on every query I have.

Please change it to:
EEA(PR) refused-Eind ignored, retroactively applying Dec 2016 changes, exercising treaty rights question about looking for work.

Thank you

[greatscott]

Could you change the heading of this topic please as I urgently need the information on every query I have.

Please change it to:
EEA(PR) refused-Eind ignored, retroactively applying Dec 2016 changes, exercising treaty rights question about looking for work.

Thank you

Actually please change it to:
EEA(PR) refused-Eind ignored, retroactively applying Dec 2016 changes, exercising treaty rights question about looking for work, plus absences query for a separate application for EEA2(PR).

Thanks

[greatscott]

Guys, URGENT, any advice please on the following aspects of this merged thread:

1. EEA(PR) refused-Eind ignored, retroactively applying Dec 2016 changes

2. exercising treaty rights question about looking for work

3. absences query for a separate application for EEA2(PR)

[greatscott]

Well, I'm getting no help from guru's on this forum and I suspect I know why....because you all know that the changes made by the UK in Dec 2016 (LOL a couple of weeks before our 5 years was complete, ain't that a laugh), are in fact legal.

Applied retrospectively too....also no advice from anyone here. Because that's the British way perhaps? Quite acceptable I suppose to cheat people who have been here for 5 years.

Well Great Britain do your best!! If we have to leave so be it. Bye Bye.

[mkhan2525]

Well, I'm getting no help from guru's on this forum and I suspect I know why....because you all know that the changes made by the UK in Dec 2016 (LOL a couple of weeks before our 5 years was complete, ain't that a laugh), are in fact legal.

Applied retrospectively too....also no advice from anyone here. Because that's the British way perhaps? Quite acceptable I suppose to cheat people who have been here for 5 years.

Well Great Britain do your best!! If we have to leave so be it. Bye Bye.

Have you not worked at all in the 5 years you've been resident in the UK?

If you do a search on this forum for Eind, you will find the answer to your question regarding the new changes.

Eind is still good case law despite HO ignoring it.

[Richard W]

Well, I'm getting no help from guru's on this forum and I suspect I know why....because you all know that the changes made by the UK in Dec 2016 (LOL a couple of weeks before our 5 years was complete, ain't that a laugh), are in fact legal.

Well, they're not in accord with the currently established law, based on Eind, which is still listed in the Home Office guide on relevant case law! (On the other hand, the Home Office does appear to be attempting remove the concept of law from case-working decisions.) The kindest interpretation I have is that the HO has decided that the decision in Eind was wrong. The only way to reverse it is to have another case be referred to the EUCJ so that the court can reverse itself, as happened with Akrich and then Metock.

Unfortunately, your case appears to be a test case. If you appeal, and the judges are favourable, I expect your case to go all the way up to the EUCJ - if you can afford the lawyers. Judges supporting you can be portrayed as defying the will of Parliament, and judges seems reluctant to do that. Be prepared to encounter Treasury counsel at the Court of Appeal. Unfortunately, your family need permanent residence cards within 18 months so that they can apply for naturalisation. Otherwise, they are dependent on Surinder Singh rights surviving Brexit, and this looks increasingly unlikely. It seems that there aren't enough EU nationals dependent on Surinder Singh rights in the UK - and various other EU governments would also like Surinder Singh to be overturned.

It's just possible that your family can keep the naturalisation door open by applying for British passports, on the basis that the application for passports can be construed as an application for naturalisation, and the lack of PRCs overlooked on the grounds that you should already have received them, but didn't.

It had occurred to me that if you were a foreign national, you might have acquired PR. If you had, would you have kept it, or would you have lost it by 2 years absence? Unfortunately, the case working guidance insists on British sponsors being 'qualified persons'. I can't find any justification for excluding permanent residence - acquire PR in country A, one year's residence in country B and then return to country A retaining PR there is a perfectly possible trajectory. Indeed, it might be possible, though peculiar, to have PR in two countries simultaneously. (When would PR-preserving visits have been declared an abuse?)

[greatscott]

Great reply, thanks.

They can all get stuffed.

I'm not playing con games on behalf of governments, nor throwing money down a bottomless pit.

We have discussed this as a family. They want us to leave, then we will. Had enough. Will appeal on principle though, and it will give us enough time to have another future mapped out. We just want to live a normal life again without feeling we have to grovel for it. UK? a tad overrated.

[greatscott]

Well, they're not in accord with the currently established law, based on Eind, which is still listed in the Home Office guide on relevant case law!

Richard, do you have a link for me to a web site that shows this?

[greatscott]

Unfortunately, your family need permanent residence cards within 18 months so that they can apply for naturalisation. Otherwise, they are dependent on Surinder Singh rights surviving Brexit, and this looks increasingly unlikely. It seems that there aren't enough EU nationals dependent on Surinder Singh rights in the UK - and various other EU governments would also like Surinder Singh to be overturned.

This is the bit I don't understand...Theresa May is on record as saying that no families will be split up. How then do they propose demolishing SS without splitting families up. There has to be some form of blanket amnesty applied, how else?

[Richard W]

Well, they're not in accord with the currently established law, based on Eind, which is still listed in the Home Office guide on relevant case law!

Richard, do you have a link for me to a web site that shows this?

It's linked to from EEA Case Law and Appeals. It's on p13 of the latest version (4.0) of the PDF.

[secret.simon]

This is the bit I don't understand...Theresa May is on record as saying that no families will be split up. How then do they propose demolishing SS without splitting families up. There has to be some form of blanket amnesty applied, how else?

As SS only applies to family members of British citizens (in the UK), probably either FLR(M) or FLR(FP) under the UK Immigration Rules?

Besides, a Prime Ministerial statement does not have any force of law, it is merely a statement of broad intent. It may cover families in general, but it of itself won't stop some individual families from bring split up. It does not have any more effect than a Prime Ministerial statement saying that all illegal migrants will be deported by a specified date.

[Richard W]

This is the bit I don't understand...Theresa May is on record as saying that no families will be split up. How then do they propose demolishing SS without splitting families up. There has to be some form of blanket amnesty applied, how else?

I have seen the report being that, "Mrs May commented that she is keen to reassure EU nationals that she does not wish to see families torn apart and aimed to give as much certainty as possible to citizens who have settled in the UK..." (source: weblink of lawyer firm removed). That would mean EU nationals' families. I don't believe you're an 'EU national' as she meant the term. Also, it's very different from saying that no families will be torn apart.

[greatscott]

ok, understood, thanks both

[greatscott]

I do have another question. What happens once RC card has expired?
Are we all allowed to carry on working? Using NHS?
During the Appeal process- are we all allowed to work, use the NHS?
When does the right to work or make use of the NHS cease?

(Because Eind allowed this, the BC studied as well (no health ins), which is why there is no fall back position to being qualified for the full 5 years).

[Richard W]

I do have another question. What happens once RC card has expired?
Are we all allowed to carry on working? Using NHS?
During the Appeal process- are we all allowed to work, use the NHS?
When does the right to work or make use of the NHS cease?

(Because Eind allowed this, the BC studied as well (no health ins), which is why there is no fall back position to being qualified for the full 5 years).

If the judgement in Eind does not apply to you, your family have only had a right to work and free treatment by the NHS while you were a qualified person. Their recent earnings while you are not a qualified person are proceeds of crime. If it does apply to you, then your wife at least is a permanent resident and has the same right to free treatment by the NHS as you.

If my memory serves me right, primary care and emergency treatment by the NHS remain available to you free of charge. Whether other treatment will be refused on the basis that you might not pay if found to be liable, I don't know. I suspect not.

If you are currently a qualified person, your family should apply for residence cards.

The rest of this post assumes that you are not a qualified person but that the Home Office do not advise your family's employers that they no longer have a right to work. What may well happen is that your family members will be suspended from work just before their residence cards expire. Not all employers are so diligent - at least one poster here had continued to work on the basis of a long-expired family permit!

Incidentally, I can't find any change in the EEA Regulations overturning Eind. I can only assume the the Home Office's position is that it never applied, and that earlier instructions to staff were wrong.

[greatscott]

Unbelievable. Well, my spouse's RC has expired as it took over 9 months for them to reach a decision on EEA(PR) despite several letters of complaint (which in itself violates EU Law).

So (even though Eind does apply to us as S/S's), my spouse is now a criminal as a result of the Letter of Refusal?

And according to the Refusal, has been a criminal since 2012 !

This is pure evil. This really is Nazi territory now.

Thanks for the heads up (last para).

[greatscott]

By the way I have nothing against brexit or taking back control of ones border per se, but the UK cannot jump the gun. These are the rules, no matter how much they despise some of them, that's what they signed up for.

When brexit occurs then that's when they make their own rules.

Or are they just thick?

Grrrreat Scott! Absolutely ridiculous.

[thsths]

Incidentally, I can't find any change in the EEA Regulations overturning Eind. I can only assume the the Home Office's position is that it never applied, and that earlier instructions to staff were wrong.

"Oceania was at war with Eastasia: Oceania had always been at war with Eastasia."

[mkhan2525]

Well, they're not in accord with the currently established law, based on Eind, which is still listed in the Home Office guide on relevant case law! (On the other hand, the Home Office does appear to be attempting remove the concept of law from case-working decisions.) The kindest interpretation I have is that the HO has decided that the decision in Eind was wrong. The only way to reverse it is to have another case be referred to the EUCJ so that the court can reverse itself, as happened with Akrich and then Metock.

Unfortunately, your case appears to be a test case. If you appeal, and the judges are favourable, I expect your case to go all the way up to the EUCJ - if you can afford the lawyers. Judges supporting you can be portrayed as defying the will of Parliament, and judges seems reluctant to do that. Be prepared to encounter Treasury counsel at the Court of Appeal.

It is very unlikely that the Upper Tribunal would refer the question to ECJ court when it recognises and applies the Eind judgment. See the recent unreported case EA/07134/2016 which may assist the OP.

8. We do, however, note that in the light of the ECJ's decision in Minister voor Vreemdelingenzaken en Integratie v Eind (C-291/05) [2008] 2 CMLR 1, it was not necessary, in a Surinder Singh claim, for the appellant to establish that the sponsor was, on return to the UK from Cyprus, a "qualified person".

https://tribunalsdecisions.service.gov. ... 07134-2016

[greatscott]

Thank you mkhan2525