ILR refusal on the basis that my British wife is unemployed

[Jibola]

Case Profile:

I applied for an indefinite leave to remain in the UK via the EEA4 and was refused (under "the Immigration (European Economic Area) Regulations 2006" section 15(1)) because of lack of evidence showing that my wife had exercised her treaty rights in the UK for a continuous period of five years.

Me

Nigerian
Married to a british National in 2003 in Ireland
Entered the UK with EEA Family Permit in Nov 2004
Employed for the last 5 years in the UK
Have 5 year residency expiring in Feb 2011
Never been to prison or been arrested
Never claimed benefits

Wife

British National
Worked from 04-07 and did some voluntary work.
Cease working activity due to illness
Never claimed benefits
Performed voluntary jobs while actively searching for work
Delivered a baby boy on October 10

We have been living together in Ireland and the UK for a total of 7 years; we own a house together in the UK.

My refusal was then associated with "The Immigration (European Economic Area) Regulations 2006" section 20(1) stated below:-
Refusal to issue or renew and revocation of residence documentation
20.—(1) The Secretary of State may refuse to issue, revoke or refuse to renew a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card if the refusal or revocation is justified on grounds of public policy, public security or public health.

In response, I have written a letter of reconsideration to the dullard that dealt with my case telling him that my wife and I lived in Ireland for 2 years where she exercised her treaty rights before returning to the UK where I joined her. I have also provided documentation to show that my wife has continued to exercise her treaty rights as a "self- sufficient" person and worker who has ceased activity.

I think the HO are trying to get me out because my british wife has not been working due to sickness and pregnancy. That is desperation on the part of the HO and discrimination against me for being a Nigerian that married a British National. In addition, I have never violated Immigration (European Economic Area) Regulations 2006" section 20(1) AFAIK.

I will appreciate an unbiased opinion of my options in relationship to appealing against the HO decision and whether there is any justification of issuing me with a revocation letter and holding on to my passport despite the validity of my visa.

Thanks
Jibola

[86ti]

You have obviously applied for permanent residence under EEA regulations and not ILR. Self-sufficiency means not only having sufficient funds but also having separate comprehensive sickness insurance. It is not clear to me how she would qualify as a worker who has ceased activity as she was obviously seeking for work after 2007. Your residence in Ireland is of no relevance.

[Jibola]

Yes, we applied for permanent residency under EEA reulations. The health insurance clause does not apply to my wife because she is a British citizen and we were informed by an immigration officer to put this in my application.

We originally applied on the basis that my wife is self sufficient but we added work details as back up. The "worker ceased to work activity" clause is related to the periods when my wife was not employed; and we provided medical evidence justify her unemployment.

Do I still have any chance of winning my appeal?

[86ti]

Ok, I see. What I do not understand is why 20(1) was quoted.

(One correction: your residence in Ireland is of relevance, of course, but that has been acknowledged by HO already as you have entered with an EEA FP and now have a residence card, right?)

[Jibola]

Yes, you are correct; I have a 5 year temporary residence permit that expires in February 2011.

[fisayo]

please. can you explain what 5 years temporary resident permit means--
is it the same as residence document that is obtain by eea2 application?

[Plum70]

Yes, we applied for permanent residency under EEA reulations. The health insurance clause does not apply to my wife because she is a British citizen and we were informed by an immigration officer to put this in my application.

Jibola can provide any basis in law for this?

My reasoning is that if your wife, a British citizen transferring from Ireland, wishes to use the EU Directive to bring her family over to the UK then the criteria for self-sufficiency apply - one of which is holding comprehensive sickness insurance for the whole family.

[Plum70]

is it the same as residence document that is obtain by eea2 application?

Yes.

[Obie]

Yes, we applied for permanent residency under EEA reulations. The health insurance clause does not apply to my wife because she is a British citizen and we were informed by an immigration officer to put this in my application.

Jibola can provide any basis in law for this?

My reasoning is that if your wife, a British citizen transferring from Ireland, wishes to use the EU Directive to bring her family over to the UK then the criteria for self-sufficiency apply - one of which is holding comprehensive sickness insurance for the whole family.

I don't think a British National should strictly speaking be required to have Comprehensive Sickness Insurance, but if one is applying under EU law, they have to follow the procedures which applies to EEA nationals.

Having said so, it is important to note that the right of a British national to return to the UK after having exercised treaty rights in another member state, is a continuation of the rights they previously exercised in another member state, no new rights are created on their return. If that is the case, then they retain their migrant worker status on the return to their member state of origin, without the need to undertake economic activity on their returns. Therefore asking them for sickness insurance, undermines the migrant workers status they retained.

This view is substantiated by the EU jurisprudence in Eind.

To conclude, i believe the Secretary of State, might be acting against EU law to ask returning nationals to be undertaking economic activity or be economically self-sufficient for the duration of the 5 years for their non-EEA family member to be able to gain PR.

Evidence showing they have been living in the UK over 5 years should suffice, without the need to show the exercise of treaty rights.

[86ti]

I thought about Eind later but what is the UK's current stance on that judgement? And wouldn't a British citizen have access to NHS anyway simply because he/she is a citizen?

[Plum70]

And wouldn't a British citizen have access to NHS anyway simply because he/she is a citizen?

But doesn't the fact that the spouse is entering the UK under EU law exclude them from NHS access under the 'self-sufficient/student' route? Otherwise it may be seen as one rule for EU nationals and another for British nationals under EU law.

[86ti]

And wouldn't a British citizen have access to NHS anyway simply because he/she is a citizen?

But doesn't the fact that the spouse is entering the UK under EU law exclude them from NHS access under the 'self-sufficient/student' route? Otherwise it may be seen as one rule for EU nationals and another for British nationals under EU law.

If I understand the Eind case properly then it obviously states that the EU national does not need to exercise treaty rights in her own country after return (as far as I know Mr. Eind was not working until the final judgement which was only years after the initial application). Effectively the EU national is then treated as a permanent resident which as a citizen she would be anyway (sort of).

[Plum70]

Right... Will have to familiarize myself with the Eind case before commenting further.