unmarried partner visa has been refused

[ozbrit]

I am Australian, have been with my British partner for four and a half years. We have previously had an unmarried partner visa. We applied again and they have said no because we don't spend enough time in the uk... what they are forgetting to notice is that my partner and I work in Europe for a uk company. We work under a uk contract, get paid in pounds and work under the uk laws. I need this visa to continue my work. We work seasonal and are classed as uk based posted workers. Before and after each season (about 8 months, plus get holidays paid out at the end) we go to the uk for a few weeks and then head somewhere for a break. We are supposed to be starting on the 1st of March and if I can't get my visa it will ruin us. We have already spent all our money having to travel back to Australia for me to apply for another visa. Which is another thing they are refusing to understand because they are saying we don't have enough money... they have also assumed we haven't been working in Australia, which is incorrect. Obviously our bank balance isn't going to be good after an unexpected trip to Australia to sort the visa out (yes unexpected, had a nightmare with the visa last year... long story).

We are writing a letter back now but are stuck on a part that says ''There will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively''. We have stated that we can live at my partners mothers house. It is a coucil house so they want her to get permission from the housing trust stating we can live there. But it is saying ''exclusively''. Will it be enough that we can live there? Or do they mean for us to show we can live somewhere ourselves? Our wages seem low but we get free accommodation and bills included through our work... another thing they are refusing to see.

We need to post it to them here in Australia and they will contact us within 28 days. Has anybody appealed here? How long does it take? We are thinking my boyfriend can go over to start work and hopefully I can start later. We don't know what to tell our employer. This is absolutely devestating. These people can play god with peoples lives. Would it benefit if we added a little of our emotion in our appeal letter? Or should we just stick to the facts? Thankyou for taking the time to read this.

[mochyn]

you may have a problem with accommodation as housing trust usually stipulate how many people can live in the property.
What does it say in your mothers tenancy agreement?

[baswitzer]

Sorry, how long were you actually out of the country for?

What visa did you have previously?

http://www.ukba.homeoffice.gov.uk/partn ... n/#header3

[ozbrit]

previous visa was unmarried partner visa. We work from about april to october - sometimes longer, in France under a uk contract. before and after each season we go back to england for about 1 - 3 weeks. My partners mother is going to the housing trust today to get them to write permission of us staying, she seems to think there will be no problem with that.

[ozbrit]

I've just read that link tha you sent. Would it be counted if I printed that and sent it off with our appeal?

[baswitzer]

Why not refer to the guidance in a covering letter if you want to refer to it?

You should also find the relevant section applicable to you in this guidance which is what Immigration Officials refer to when considering applications?

http://www.ukba.homeoffice.gov.uk/sitec ... schapter8/

Am I right in thinking that you have spent one year out of the two year probationary period out of the UK?

[ozbrit]

yes i have... but working for a uk company under uk contract and being paid in pounds. I thought that counted.

[ozbrit]

Thankyou for that link. There are a couple of intersting bits I think we should quote.

If we got married during the appeal process would that affect it? Would we have to let them know? We want to get married so then at least I can stay in France

[baswitzer]

P.S Sharing accomodation is normally considered to be OK. As long as the place is big enough. That guidance should steer you in the right direction. Good luck!

[Ben]

Am I missing something here?

ozbrit,

Your partner is a UK national who has been exercising his/her right to reside in France. Since you have been together for four and a half years, you are the partner with whom a UK national is in a durable relationship, duly attested. Your partner has been engaged in economic activity in France.

In accordance with the ECJ ruling in the case of Singh, your partner has the right, upon returning to the UK, to be treated as an EEA national for the purpose the UK EEA regulations (the UK's implementation of Directive 2004/38/EC). You, therefore, have the right to be treated as a family member of an EEA national, for the purpose the UK EEA regulations.

[ozbrit]

ok thankyou for that. It's going over my head a bit. I don't understand why they are giving us a hard time about not being in the uk then. Thanks for all the help.

[Ben]

I don't understand why they are giving us a hard time about not being in the uk then.

Because your applications thus far have been made in accordance with the UK Immigration Rules.

What I'm saying is, from what you have said, it would appear that the EEA regs apply to you. This is good news, as it means free applications, clear legislation and does not put you at the mercy of the UK Immigration Rules.

[ozbrit]

We have been working in France for long periods of time but have never become residents. Would that still apply in our appeal? I over stayed my 90 day limit by a lot... I have spent a minimum of 6 months in France two years in a row but have never got a special visa to do it.

[ozbrit]

Ok sorry if i'm not making sense.... my brain has been working overload since we got the refusal letter on Firday. With what you are saying about these EEA regs, if was to marry my boyfriend here, then go straight to France and become a resident there as his spouse, would I be able to legally work for the UK company as a resident in France? Remembering the company is in France.

[Ben]

Ok look, sorry for confusing you.

Put aside for a moment anything that's in your mind to do with the UK Immigration Rules, such as unmarried partner visa, spouse visa, refusal, appeal - whatever.

In accordance with EU Directive 2004/38/EC, a UK national has the right to reside in France for a period longer than three months if he or she is engaged in economic activity there. Your partner has been doing just that.

The partner with whom the UK national is in a durable relationship, duly attested, has the right to accompany the UK national in France, for the duration of the UK national's residence there. This fits your description and what you have been doing, no?

In accordance with the European Court of Justice ruling in the case of Surinder Singh, when returning to the UK, a UK national who has been engaged in economic activity in another EU Member State has the right to be treated as an EEA national for the purpose the UK EEA regulations (the UK's implementation of Directive 2004/38/EC). You, as the partner with whom the EEA national is in a durable relationship, duly attested, have the right to be treated as a family member of an EEA national, for the purpose the UK EEA regulations.

Practically speaking, it means that any period of entry to and residence in France, when with your partner, is lawful under EC law providing that, beyond the initial three months of entry, your partner is exercising a Treaty right there (or is engaged in economic activity, in the case of your partner). You do not have to apply for anything (visa or Residence Card) in order for this to be so.

Similarly, when returning to the UK, with your partner or to join her there, you are doing so in accordance with the provision of the Directive and the ECJ ruling on Singh, providing that, beyond the initial three months of entry, your partner becomes engaged in economic activity in the UK. Again, you do not have to apply for anything (visa or Residence Card) in order for this to be so.

[ozbrit]

Ok, so how do I prove this to immigration? Can I use this to get back? When we went back to the UK in November I had to get a six month visitor visa and the guy gave me an extra black stamp and said that I most likely wouldn't get another tourist visa. Because my previous unmarried partner visa had expired and he thought it looked dodgy. Also I now have a black stamp from this refusal. I don't understand how I can travel without a visa. I thought in France we had to be married for me to legally stay. Is this something I can say in my appeal for this unmarried partner visa or do I go down some other avenue? I am so desperate to be in France to commence work on the 1st of March. My boyfriend and I CAN'T lose our jobs

[Ben]

I'm going to split up your post ozbrit, for clarity..

Ok, so how do I prove this to immigration?

Documents, as many as possible, that show both of your names at the same address. Proof of communication between the two of you, for times you've been apart. Whatever you have which proves that you are the partner with whom a UK national is in a durable relationship, duly attested, should be submitted.

Can I use this to get back?

Get back to where from where? Are you currently in Australia? Wanting to go where, UK or France? France would be easier, then proceed to the UK from there, with your partner.

When we went back to the UK in November I had to get a six month visitor visa and the guy gave me an extra black stamp and said that I most likely wouldn't get another tourist visa. Because my previous unmarried partner visa had expired and he thought it looked dodgy.

All that is totally irrelevant when you are using EC law and not the UK Immigration Rules.

Also I now have a black stamp from this refusal. I don't understand how I can travel without a visa.

As you know, Australian citizens don't need a visa to enter France. You should, however, carry proof that you are the partner with whom a UK national is in a durable relationship, duly attested, and that UK national is either current in France or will be entering France together with you.

I thought in France we had to be married for me to legally stay.

No, you can also be the partner with whom an EEA national is in a durable relationship, duly attested.

Is this something I can say in my appeal for this unmarried partner visa

No. If you decide not to use the EU route, in favour of the UK route (unmarried partner visa), any reference you make to EC law is irrelevant.

or do I go down some other avenue?

This is your choice but for me, it's no contest. EC law is free and clear cut. The UK Immigration Rules are costly and not so clear cut. It should be pointed out, however, that the UK route provides for a faster path to citizenship, should this be an issue for you.

I am so desperate to be in France to commence work on the 1st of March. My boyfriend and I CAN'T lose our jobs

What's stopping you from flying to France to meet him there?

[ozbrit]

Ok sorry... I am in Australia with my boyfriend. As we work for a Uk company I need the UK visa to work for them... but I don't know how immigration would catch me if I'm not in the country. I would rather fly to the UK first then France, but will settle on flying straight there if I have to.
Which I think I will.

We only have a letter from an employer and our work contract to prove where we have been living, as it is accommodation on a campsite. And they are both in English.

I don't know how to prove we are a couple to the French people... we have our stuff from the unmarried partner visa but thats all about three months old now and our joint banck statements are pretty bad. We don't pay bills.


So how would I go down the EU route? I've been to busy looking into the immigration side of it I wouldn't know where to start. My guess is to stay in France for the three months and then start that process?
Thankyou so, so much for heloing me out

[ozbrit]

Hi guys, I just thought I would let you know that my appeal was overturned! I got it within the 28 days. We did it on our own, with out a lawyer. We stuck to the facts, told them what they wanted to hear and spoke from the heart. It can be done!!!

I am now in France, I have married my partner and I will now have to look at how I can become a residant in France so I don't get this confusion again next time around. Thanks for all your help.

[Ben]

Excellent! Glad to hear it, and thanks for posting back.