Non EEA Permanent Residence Refusal

[tawf]

I recently made an application for retain right of residence, i.e. Permanent Residence after my marriage broke up with a EEA national. I already have the 5 year spousal visa due to expire in 2020. I was able to provide a letter from the employer of my estranged wife that outlined she had been working with the organisation for about 5 years. I also managed to provide her P60 for the last financial year. I reminded the HO of the fact that we made previous successful applications and had successful tribunal rulings in our favour if they needed the identity of my ex wife. I then submitted prove of addresses right from when we lived together in the form of my bank statements, mobile phone bills, P60s, payslips and NI contriubutions for the period I was with her and my current address. I also included the Decree Absolute for divorce from the family court given around April 2017. We had been married from 2013. For clarity my ex is a German national who has been living in England since 2007.

REASONS FOR REFUSAL:
"Your application has been considered under regulation 21 (5) of the Immigration (EEA) Regulations 16.
You have provided evidence that your sponsor was exercising treaty rights as a worker from 1st January 2008 to 7th August 2017 in the form of an employer letter and a P6O. Therefore, this department is satisfied with the evidence you have provided for your sponsor exercising treaty rights.

You have not provided adequate evidence to show that you are the former direct family member of an EEA national exercising Treaty Rights in the UK.

In support of your application you have provided a photocopy of your EEA national sponsors expired French Italian passport. In some circumstances the Secretary of State can accept alternative evidence of identity and nationality if the applicant cannot get or produce the required document due to circumstances beyond their control. However this department does not consider you to have a valid reason as to why you cannot obtain your sponsor's passport/ identity card.

As you state you are aware of where your sponsor is residing and have provided a P60 from April 2016 to 2016 and an employer letter. Therefore it is not unreasonable for this department to expect you to obtain a valid form of identity from your sponsor.

As you have failed to provide a valid identity card or passport for your EEA sponsor, the Home Office is unable to determine their identity, your application has therefore been refused.

As you have not provided evidence confirming your sponsors nationality you have not proved that you are entitled to rely on the provisions of the Immigration (EEA) Regulations 2016."

Please points to note:
My ex wife is not an Italian, I never submitted any Italian passport, talking less of Expired Italian passport.
I never stated any where I know where my ex resides.
I got my EEA spousal visa through successful tribunal ruling 2 years after my application i.e. 2015.

My dilemma:
Is this deliberate attempt to frustrate a genuine tax payer?
Is this an issue of mistaken identity, taking another's application as mine?

Expectations from board members:
Kindly share your experience and advice on what steps to take to remedy such refusal shall be much appreciated.
Thanks.
Tawf

[tawf]

Hello to you all,
Apologies to you all for not exchanging pleasantries and not showing courtesy to you, charitable admin and board/ subscribed members. This should tell you how overwhelmed I am by the Home Office decision on my application.
Thanks.

[Obie]

Do you have your partners ID?

[tawf]

Thanks for asking Obie. Unfortunately I don't. Frankly I can't get it now as we are not in good terms. I went through some close associates to get the documents I provided on her behalf. We've been separated for since 2016 and I moved out.

I was aware of the Upper Tribunal decision on " Barnett and others (EEA Regulations: rights and documentation) [2012] UKUT 00142 (IAC) when I did my application that was why I reminded them of the fact that she has records there. My first application for the Spousal was refused in 2013 and I subsequently had a successful appeal in 2015. I am sure you may know of the determination.

In determining the case, reference was made to regulations 17 and 18 of the EEA Regulations 2006. Points 3 and 4 of the Upper Tribunal judge states:

"3. The "proof" that the Secretary of State can lawfully require in application under regulations 17 and 18 in order to entitle a non EEA national to a residence card (17) or a permanent residence card (regulation18) may, nevertheless, depending on the circumstances, entail the production of the passport or other identity document of an EEA national; but it is unlawful to refuse application merely because such documentation is not forthcoming. The Secretary of State needs to show a valid reason why it is required.

4. This particularly so in the case of regulation 18, given that there is likely to be relevant material relating to such documentation on the file from previous successful, application."

Is it the case that this ruling from the Upper Tribunal has been successful challenged?
My concern is HO claiming I supported my application with an expired Italian passport?

[Obie]

I know the case, but there was has been legislative changes afterwards.

[tawf]

Really? Thanks for your response once again.
Please where can I read these legislative changes? Do these changes invalidate Regulations 17 and 18 of the EEA Regulations 2016.

Again, can't I impugne their claim of expired Swedish passport when my ex is German?
How could they agree to the fact that she is exercising treaty but still asking for the prove of her nationality?

[tawf]

Sorry my response I am posting complete observation again as I was timed out during the edit. Thanks.

Really? Thanks for your response once again.
Please where can I read these legislative changes? Do these changes invalidate Regulations 17 and 18 of the EEA Regulations 2016. Can HO policies or legislative changes stand in the face of a case law as in Barnett and others?

Again, can't I impugne their claim of expired Swedish passport when my ex is German?
How could they agree to the fact that she is exercising treaty but still asking for the prove of her nationality?

They claimed I stated I am aware of where she resides but I did not make any such statement.

Moreover a cursory look at the regulation 21 (6) quoted immediately following the (5) used in support of the refusal talks of accepting application. They didn't reject my application, hence did not challenge the validity of my application. If my analysis or inference is logical, are they not in error?

"(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national."

(6) Where—

(a)there are circumstances beyond the control of an applicant for documentation under this Part; and

(b)as a result, the applicant is unable to comply with the requirements to submit an application online or using the application form specified by the Secretary of State,

the Secretary of State may accept an application submitted by post or in person which does not use the relevant application form specified by the Secretary of State.

[Obie]

The regulation indeed exist under 21(5), that permits the Home Office to do what she is doing and more.

Under 21(4) , the even have the power to do even more, by invalidating these applications.

However Home Office has been attentive to the warning that affected individuals are dead serious about taking the matter to the high court and striking down regulation 21 in its entirety for being incompatible.

They are therefore now granting appeal rights, but under regulation 2, an invalid application does not carry an appeal right. However Home Office is very nervous of a Judicial review, and therefore granting appeal rights.

[tawf]

Thanks for your response and good morning. Nervous they are because of the flagrant disregard of law.
None of the refusals I have read on the platform merit invalidation. My understanding of regulation 2, especially sections touching on invalid applications can't be used in the recent refusals as speculations can't be adopted in proving otherwsie of the claims of applicants. Below are some of Reguations 2, dealing with the respective interpretations:

"Permanent residence card” means a document issued under regulation 19(2);

“qualifying EEA State residence card” means a valid document called a “Residence card of a family member of a Union Citizen” issued under Article 10 of Council Directive 2004/38/EC(8) (as applied, where relevant, by the EEA agreement) by any EEA State (except Switzerland) to a non-EEA family member of an EEA national as proof of the holder’s right of residence in that State;

“registration certificate” means a certificate issued under regulation 17;

“relevant EEA national” in relation to an extended family member has the meaning given in regulation 8(6);

“residence card” means a card issued under regulation 18;

“right to reside” means a right to reside in the United Kingdom under these Regulations (or where so specified, a right to reside under a particular regulation);

“spouse” does not include—
(a)
a party to a marriage of convenience; or

"EEA decision” means a decision under these Regulations that concerns—
(a)
a person’s entitlement to be admitted to the United Kingdom;
(b)
a person’s entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card (but does not include a decision that an application for the above documentation is invalid);
(c)
a person’s removal from the United Kingdom; or
(d)
the cancellation, under regulation 25, of a person’s right to reside in the United Kingdom"

MY VIEWS:
Basically all that I see is that unless they could prove fraud in individual cases.i.e Marriage of convenience, they have no basis for deciding an application is invalid. More so, none of the Retained rights or resident cards issued, which gave applicants right to Permanent residency cards had been cancelled.

Now at best the Upper Tribunal's decision on Barnett and others is a case law they are just ignoring conspicuously.

Are we not going back to the similar disposition they showed in Proxy marriage, leading to the flawed Karim vrs Karim caveat?

Do they actually have the right to refuse under section 21 (5) or they are just assuming the contrary to the spirit of that regulation, which can be clearly seen in 21 (6)? Are they not supposed to request any further documentation and seek explanations on why such documents could not be submitted?

Please is divorce not sufficient reason to tell one would find it difficult to convince an estranged spouse to give their identity documents, be it photocopy or original, especially when both parties have moved on?

Is the Decree Absolute from competent court of jurisdiction not a sufficient prove that one was linked to the estranged spouse by marriage, hence a former family member? I strongly believe the Secretary of State would make a fool of herself in the face of the Immigration tribunal. I have information that a lot of those refused have resorted to the courts, and the judges are already fed up with the incompetent decisions and lack of decorum from the Home Office.

The above is my 2 pence, and I stand to be corrected. I think I would head to the court but this is just waste of people's precious resources.

Thanks once again. I really appreciate what you and your colleagues are doing as moderators on the platform. God bless.

[Wise]

Nothing to be corrected in your thread. I absolutely with you on this and just as your second to the last paragraph.

Moreover, even couple with kid some of them don't get on after divorce and what will you expect without kid after both parties have moved on.

PLATFORM LIKE THIS IS WHERE THEY ARE GETTING THEIR FEED FROM BUT COURT IS THERE FOR A PURPOSE.

God bless you too

[tawf]

Thanks Wise. You're right; I agree they glean information from platforms like this that's the more reason why contributors and boad members should be circumspect what they post.

There is no point circumventing the process once they ask you to either appeal or re-apply. I am of the view that once an applicant decline to challenge the decision through the courts, expensive though this may be, there is usually that propensity for them to refuse such again.

[Wise]

Trust no one! But your last point is a massive thought from a very wise person.

Honestly,I wish everyone affected by all this issue all the best.

[tawf]

Do you have your partners ID?

Hi Obie! A belated happy NY to you and all the board members/ moderators. You guys are really doing a great job. Do you get renumerated/ are you financially supported in any way? How is the website managed or ran re financing?

To the substance, I managed to do a thorough look around during the holidays, and found photocopy of my ex ID, which was used for my EEA2 application years back. It is still valid and not expired.

[tawf]

I know the case, but there was has been legislative changes afterwards.

Again, you're right on this legislative changes but don't you think the HO is acting abitrarily in ignoring other policies/ directions that require them to contact applicants for further particulars/ documents before outright refusal?

As I stated in the early days of my post, I wrote to them for reconsideration and referenced Regulation 10 (5). They submit they are relying on Regulation 2016, and were indignant in reconsidering their decision even with respect to the error they made with my ex nationality.

Did Regulation 2016's amendments invalidate that of 2006 i.e. the upper tribunal decision on Barnett and others (2012)?

Well, I have already proceeded to the courts. I am only of the view that HO's decision is just flagrant abuse of their administrative duty to assess applications. I am of the view that due diligence could have averted the waste of applicants', SOS' and the courts' time and resources.

[tawf]

Trust no one! But your last point is a massive thought from a very wise person.

Honestly,I wish everyone affected by all this issue all the best.

Thanks for your advice Wise. It is jut unfortunate how they seem not to understand the emotional/ psychological abuse they subject people to. Court hearing dates are longer, the less one belabors the period for the waiting before the court hearing the better.

Wish you all the best.

[smITbd]

Hi Guys
Is there anyone here have experience of obtaining a new Certificate of Application (COA) after expired the original one and how long it may take to get a replacement COA?

Please advise

Many thanks in advance

[tawf]

Hi smITbd ,

It should usually take 3 working days if you sent for the request via email, which is the recommended route.

Thanks.

[tawf]

Good morning to you all.

Update on my case:

I wrote to the HO somewhere immediately I received my refusal letter in November 2017 to reconsider their decision on my application as my estranged spouse wasn’t Italian as they appeared to have suggested. I also pointed out the error of law, citing the Upper Tribunal directives on Barnett et al [Jamaica 2012], Regulations 10 (5); 17 and 18 of the EEA Regulations 2006 among others. They however insisted they took the right decision, hence would not reconsider the decision. I therefore had no other option than to pursue the appeal route. Consequently, filed appeal around December 2017, with potential hearing this week.

I however received a letter barely 10 days to my appeal hearing from the Appeal Review Pilot, citing a recent case of AB (Kyrgyzstan), requesting I submitted evidence to show when I initiated my divorce proceedings and whether I was exercising treaty around that time. I wrote back to them and pointed out that what they requested were submitted with the application they refused. I also pointed out to them that even though what they requested were never part of the grounds for the refusal of my application, I was happy to submit them as requested, and did same.

Just 2 days after writing to them and submitting what they requested, they wrote back to withdraw their decision, and stated they would grant me the appropriate leave, which I believe will be my Permanent Residence. They also stated they had already informed the Tribunal as directed by Rule 17 (1a) and (2) of the Tribunal procedure of the First-tier Tribunal, Immigration and Asylum chamber, Rules 2014.

I am grateful to God for such a U-turn. I also thank you all for your support and well-meaning comments when I joined this forum. Special thanks to the Moderators, especially Obie and the creators of this forum. Thanks also to Wise for his comments on my post, encouragement and advice.

I pray a similar testimony for all those who one way or the other are caught up in the HO web.

God bless you all.

[Abeythedon]

Congrats

[Cici85]

[quote=tawf post_id=1665007 time=1533203860 user_id=184239]
Good morning to you all.

Update on my case:

I wrote to the HO somewhere immediately I received my refusal letter in November 2017 to reconsider their decision on my application as my estranged spouse wasn’t Italian as they appeared to have suggested. I also pointed out the error of law, citing the Upper Tribunal directives on Barnett et al [Jamaica 2012], Regulations 10 (5); 17 and 18 of the EEA Regulations 2006 among others. They however insisted they took the right decision, hence would not reconsider the decision. I therefore had no other option than to pursue the appeal route. Consequently, filed appeal around December 2017, with potential hearing this week.

I however received a letter barely 10 days to my appeal hearing from the Appeal Review Pilot, citing a recent case of AB (Kyrgyzstan), requesting I submitted evidence to show when I initiated my divorce proceedings and whether I was exercising treaty around that time. I wrote back to them and pointed out that what they requested were submitted with the application they refused. I also pointed out to them that even though what they requested were never part of the grounds for the refusal of my application, I was happy to submit them as requested, and did same.

Just 2 days after writing to them and submitting what they requested, they wrote back to withdraw their decision, and stated they would grant me the appropriate leave, which I believe will be my Permanent Residence. They also stated they had already informed the Tribunal as directed by Rule 17 (1a) and (2) of the Tribunal procedure of the First-tier Tribunal, Immigration and Asylum chamber, Rules 2014.

I am grateful to God for such a U-turn. I also thank you all for your support and well-meaning comments when I joined this forum. Special thanks to the Moderators, especially Obie and the creators of this forum. Thanks also to Wise for his comments on my post, encouragement and advice.

I pray a similar testimony for all those who one way or the other are caught up in the HO web.

God bless you

Congrats @tawf am so happy for you and I hope to get victory as well. My case is not really different from yours.
Got married in 2013 and had issues with my ex husband he cheated n fathered a child while married to me . Meanwhile I was struggling with fertility issues(all thanks to God am all clear).
In 2016 I was stopped by immigration and HO was at d point of cancelling my resident card. They called my ex for an interview asked him to come with me. My ex went with his baby mother instead of me. To cut the long story short he told HO we were genuily married n loved ourselves but his is with someone now. He’s present partner told immigration lies n asked him to stop talking that he does not understand english(this is someone who has lived n worked in England for years).he asked for a divorce n I was glad to accept it.
I went for an appeal due to HO saying is a marriage of conscience n I won the case.
My passport was returned back to me. My 5years was to expire in 5months I applied for a permanent residence n was refused due to me not proving my ex was exercising treaty right n a valid ID. My solicitor made mention in my application n also put proof of my ex n his present partner refusing to give me any document I wanted.
I appealed the refusal in March and went for a hearing this August....
My lawyer asked the court/judge to please adjourn the hearing and also asked the judge to request my EX partners work from HMRC . While the Form Of ID HO/immigration should be asked to present it,that afterall when he came for an interview he showed proof of ID.
Fingers crossed .....
My question now is do u think I might have to wait for another hearing date ?
If the home office has all d required Document will I need to go for appeal ?
Do you think my solicitor should write the home office?
The judge said he’s not sure I might get a hearing date this year ...
The home office lawyer who jotted everything the judge asked to get the information, was not in court for my case . He was there for the two cases before mine.
There was no lawyer representing home office for my case.
I have so many questions to ask but I just need to wait.
I believe so much in God and I hope and pray it works out well at the end.

Also my Barrister said my solicitor could have been able to ask home office to check with HMRC, than waiting for an appeal .



@twaf and @obie please any information you have can be of help .

[Cici85]

Am kind of new to posting on here. Please pardon any errors .
Thank you

[Cici85]

Congrats @tawf am so happy for you and I hope to get victory as well. My case is not really different from yours.
Got married in 2013 and had issues with my ex husband he cheated n fathered a child while married to me . Meanwhile I was struggling with fertility issues(all thanks to God am all clear).
In 2016 I was stopped by immigration and HO was at d point of cancelling my resident card. They called my ex for an interview asked him to come with me. My ex went with his baby mother instead of me. To cut the long story short he told HO we were genuily married n loved ourselves but his is with someone now. He’s present partner told immigration lies n asked him to stop talking that he does not understand english(this is someone who has lived n worked in England for years).he asked for a divorce n I was glad to accept it.
I went for an appeal due to HO saying is a marriage of conscience n I won the case.
My passport was returned back to me. My 5years was to expire in 5months I applied for a permanent residence n was refused due to me not proving my ex was exercising treaty right n a valid ID. My solicitor made mention in my application n also put proof of my ex n his present partner refusing to give me any document I wanted.
I appealed the refusal in March and went for a hearing this August....
My lawyer asked the court/judge to please adjourn the hearing and also asked the judge to request my EX partners work from HMRC . While the Form Of ID HO/immigration should be asked to present it,that afterall when he came for an interview he showed proof of ID.
Fingers crossed .....
My question now is do u think I might have to wait for another hearing date ?
If the home office has all d required Document will I need to go for appeal ?
Do you think my solicitor should write the home office?
The judge said he’s not sure I might get a hearing date this year ...
The home office lawyer who jotted everything the judge asked to get the information, was not in court for my case . He was there for the two cases before mine.
There was no lawyer representing home office for my case.
I have so many questions to ask but I just need to wait.
I believe so much in God and I hope and pray it works out well at the end.

Also my Barrister said my solicitor could have been able to ask home office to check with HMRC, than waiting for an appeal .



@twaf and @obie please any information you have can be of help .

[Ansarw919]

Good morning to you all.

Update on my case:

I wrote to the HO somewhere immediately I received my refusal letter in November 2017 to reconsider their decision on my application as my estranged spouse wasn’t Italian as they appeared to have suggested. I also pointed out the error of law, citing the Upper Tribunal directives on Barnett et al [Jamaica 2012], Regulations 10 (5); 17 and 18 of the EEA Regulations 2006 among others. They however insisted they took the right decision, hence would not reconsider the decision. I therefore had no other option than to pursue the appeal route. Consequently, filed appeal around December 2017, with potential hearing this week.

I however received a letter barely 10 days to my appeal hearing from the Appeal Review Pilot, citing a recent case of AB (Kyrgyzstan), requesting I submitted evidence to show when I initiated my divorce proceedings and whether I was exercising treaty around that time. I wrote back to them and pointed out that what they requested were submitted with the application they refused. I also pointed out to them that even though what they requested were never part of the grounds for the refusal of my application, I was happy to submit them as requested, and did same.

Just 2 days after writing to them and submitting what they requested, they wrote back to withdraw their decision, and stated they would grant me the appropriate leave, which I believe will be my Permanent Residence. They also stated they had already informed the Tribunal as directed by Rule 17 (1a) and (2) of the Tribunal procedure of the First-tier Tribunal, Immigration and Asylum chamber, Rules 2014.

I am grateful to God for such a U-turn. I also thank you all for your support and well-meaning comments when I joined this forum. Special thanks to the Moderators, especially Obie and the creators of this forum. Thanks also to Wise for his comments on my post, encouragement and advice.

I pray a similar testimony for all those who one way or the other are caught up in the HO web.

God bless you all.

GREAT NEWS CONGRATS

[Scrobo23]

Congrats @tawf am so happy for you and I hope to get victory as well. My case is not really different from yours.
Got married in 2013 and had issues with my ex husband he cheated n fathered a child while married to me . Meanwhile I was struggling with fertility issues(all thanks to God am all clear).
In 2016 I was stopped by immigration and HO was at d point of cancelling my resident card. They called my ex for an interview asked him to come with me. My ex went with his baby mother instead of me. To cut the long story short he told HO we were genuily married n loved ourselves but his is with someone now. He’s present partner told immigration lies n asked him to stop talking that he does not understand english(this is someone who has lived n worked in England for years).he asked for a divorce n I was glad to accept it.
I went for an appeal due to HO saying is a marriage of conscience n I won the case.
My passport was returned back to me. My 5years was to expire in 5months I applied for a permanent residence n was refused due to me not proving my ex was exercising treaty right n a valid ID. My solicitor made mention in my application n also put proof of my ex n his present partner refusing to give me any document I wanted.
I appealed the refusal in March and went for a hearing this August....
My lawyer asked the court/judge to please adjourn the hearing and also asked the judge to request my EX partners work from HMRC . While the Form Of ID HO/immigration should be asked to present it,that afterall when he came for an interview he showed proof of ID.
Fingers crossed .....
My question now is do u think I might have to wait for another hearing date ?
If the home office has all d required Document will I need to go for appeal ?
Do you think my solicitor should write the home office?
The judge said he’s not sure I might get a hearing date this year ...
The home office lawyer who jotted everything the judge asked to get the information, was not in court for my case . He was there for the two cases before mine.
There was no lawyer representing home office for my case.
I have so many questions to ask but I just need to wait.
I believe so much in God and I hope and pray it works out well at the end.

Also my Barrister said my solicitor could have been able to ask home office to check with HMRC, than waiting for an appeal .



@twaf and @obie please any information you have can be of help .

Hi Cici85
Any information from the court because my case is the same

[Cici85]

Hi Cici85
Any information from the court because my case is the same
[/quote]

Hi Scrobo23
Still waiting to hear from the court, my solicitor has not received anything yet. I know the letter am to receive is that the case was adjourned and the judge has given a go ahead to d Home office to check with my ex partners detail with HMRC. I am believing that home office will reply back with my card .