EEA4 REJECTED DUE TO DECREE ABSOLUTE

[4real]

Hi everyone,

I really need your help as early as you can, like I have said before. Me and my mum application for a PR was submited in February 2009, with letter of acceptance receive two month later. On the 29 November 2009, we were ask to submit any relevant document that we think we still need to submit in order to look into our application within 21 days. Unfortunately, our decree absolute will be due for issuing on the 12 of February 2010. So therefore, we were unable to send any decree absolute to the HO. Meanwhile, we do sent them the letter that confirm the decree absolute will be issue on the 12 of February 2010, and we promised to send it as soon as we receive it from the court. Some few days ago, we receive a letter from the HO saying our application for PR has been refuse due to the lack of decree absolute submit 21 days after 29 November 2009. Anyway, we are giving an appeal. So my question now is, since we have receive the decree absolute. Do we have a chance of changing the HO decision by appealing against their wish. Please I need as many help as you guys could render in supporting me through this deficulties.

[Obie]

Now that you have the Decree absolute, you can write to them stating the fact that it has arrived.

You can ask them to review their decision in light of material change that has occurred , which would have impacted their decision, had it been available prior to the decision being made.

You should also simultanously forward the appeal form within the time frame provided.

The next option is submitting a new application with the Decree Absolute, however, this might take a bit of time. Therefore i suggest you try the first two option.

If in the unfortunate circumstance, they subsequently inform you that you were not never qualified on the day your application was received, and therefore you will need to submit a fresh application, you can use the 3 option.

Provided you have the necessary evidence, most importantly the decree absolute, evidence that prior to the divorce being finalised your step dad was a qualified person, and evidence that your mum is in employment or self employed, you application has a good chance of succeeding this time round.

[John]

Do appreciate that it is not just a question of supplying a copy of the Decree Absolute, but also necessary to supply evidence that the EEA Citizen was exercising EU Treaty Rights in the UK when that Decree Absolute was issued.

Are you and your mother still in contact with your "ex-step-father"?

[4real]

John I could not understand what you clearly mean, as they only request the decree absolute. The order EEA document have already been submited to the HO, and they only stated that without the decree absolute it look like my mum and my step are still married that is why they reject the application under decree 15.

[Obie]

I suppose John is working on the assumption that you application was not looked into at all, due to the fact that the decree absolute was not provided. In that case, you will have to resubmit everything again.

If it is the case that the documentation you supplied them, which shows your step father exercising treaty right up to the time the decree was past is still with them and is yet to be returned, then the only thing you will need to do is submit the Decree Absolute, which was the reason for the refusal, and they will most likely look into it in fresh light.

Please make sure you don't ignore the appeal and forfeit the right.

[4real]

I thank everybody reading this topic, I also thank Obie in particular. We have told our lawyer to make the appeal and also submit the decree absolute to the HO, with he promised to do latest by tuesday. Obie, I couldn't understand what you mean by my step exercising treaty right up to the time of decrre absolute. Does that mean before the decree absolute was issued, he need to be working or doing something in particular ?

[Obie]

Yes 4real, the HO demand that the EEA national be exercising treaty rights in any capacity,.prior to the Decree absolute being passed. If it is the case that you have evidence that your stepdad was exercising treaty right shortly before the divorce, you will be fine. It doesn't have to be exactly on the same day.

I think this is a controversial area , which i totally disagree with, and which i think is unlawfully in its entirety, but unfortunately thats the HO's rule.

The courts seems to be sticking with them shoulder to shoulder on this issue, even though an average smart A level student will read the directive and say with certainty that this demand is not in conformity with it.

[4real]

Thank for your quick responce, my step was working until the divorce was pass to the court. Right now I couldn't know what he is doing now as he is not leaving with us anymore we can't understand how to get any working document from him but my mum is exercising her treaty right up to date. They got married in 2003, and we leave together until 2008 with all the documentgiving to the HO. The divorce was innitiated early 2009 and the decree absolut was just issued some days ago.

[Obie]

4real, i am starting to see you case in a different light now. If you say your mum and this man were married and living in the UK from 2003, then your mum will qualify for PR in 2008, five years after living with your Step dad in the UK.

However, you previously stated they were married since 2004. Did you mean that was the time your mum obtained her Residence Document.

There are two ways to this. If your mum was married to him for 5 years, and during that 5 years, they lived in the UK, then there is no need for the divorce as your mum obtained right to Permanent Residence before the Decree absolute was issued.

All she will need to show is evidence of him working or exercising treaty right, during the time they lived together; meaning the 5 years.

If not, the easiest route will be getting the divorce. You will need to track this man down, as i suspect the HO might request evidence that up to February, when the decree absolute was granted, or the period leading to that, he was in the UK.

Focus on sending the divorce, and whiles you have time, try and track him down, or the office that he works and see if you can get some confirmation he is still in the UK. This will boost your case immensley.

[4real]

I mean they got married in 2003, the 5 years was issued in 2004 february. That is what I meant, but right now after he had signed the divorce letter. We could not see him seens then, until now that we have receive the decree absolute.

[Obie]

If you can't find him, the only way forward is to fight the Homeoffice that you guys qualified for PR since 2008, and supply evidence that your uncle was living and working in the UK until 2008. That way, the divorce would be irrelevant.

Have you got proof that up to 2008 he was living and working in the UK. Don't you know his previous employer

[4real]

Thanks a lot for all this reply, we have all the document up to 2008 which show he lives and work while he was leaving with us. all this document has been sent to them, and the only thing they ask for was the decree absolute. which is why they claim to be the reason for refusal.

[Obie]

4real, i thik the UKBA are wrong to reject your application on the basis that your mum did not provide decree Absolute, as your mum obtained the right to PR before the Decree Absolute was passed, and you have evidence to show that from 2003-2008 , when your mum and Step dad got married, your step dad was exercising treaty rights in the UK.

Decree Absolute is immaterial to your application.

[4real]

Obie, you have been really helpful. Do you think we should appeal, and the resubmit the application with the decree absolute now for a fresh re-start. Thanks for being there all the time.

[Obie]

Permanent right of residence
15.—(1) The following persons shall acquire the right to reside in the United Kingdom
permanently—
(
(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;

You guys qualify under the rules, as your mum and yourself lived with your step dad from 2003-2009, and under the 2006 rules, you mum would have qualified for PR in 2008, long before the divorce bit came in the picture.

The question of Divorce decree should not come into the equation, for the mere fact that at the end of the 5 years of marriage, you mum was a family member of your stepdad, so automatically acquired PR.

That could form the basis of your appeal, and it seem pretty straightforward.

Alternatively, you could write to HO explaining this fact, if they are not aware

[4real]

I really appreciate the your entire support you have giving me since the begining on my post.

[4real]

I like you guy to help with the amount the appeal fees could cost, as I need to know how much it can cost me.