Help Needed-PR rejected for no apparent reasons

mobio · Post by **mobio** » Fri Jan 14, 2011 11:18 pm

I have been reading this forum for a while now and need help from some people.

I will list the case of my cousin here:

Arrived in the UK february 2001 as student
Married in july 2004 to EU national
RC issued in January 2005
Divorced decree issued in December 2009
She has 2 children born during that marriage
Marriage lasted over 5 years
They are not in good terms as he refused to pay for child support
She has been working all this time and provided all the supporting documents (P60, bank statements, rent papers, bills, etc..)

She applied for PR the following year in 2010. The HO returned her docs four times for more evidence that the ex-partner was exercing treaty right up to the date of divorce, which she did from the Ireland Revenue Statement from the ex.

Finally application accepted and COA issued in September 2010.
Refusal letter issued on the 8th December stating

First reason and i quote:
1. You have applied for Permanent Residence on the basis that have resided in the UK in accordance with the 2006 Regulations for a continuous period of 5 years. However, you have not completed 5 years residency in the UK in accordance with those Regulations. Unquote

2. Another reason and i quote:
The HM Revenue and customs letter demonstrates that your former EEA family member was not exercing Treaty Rights between 2005-6 and 2006-7 as your former EEA family member was on job seekers allowance.........The regulations specifically state that your former EEA family member must not have been on job seekers allowance for more than six months...... The evidence you have also provided fails to show that your EEA family member wasn't exercising Treaty Rights up to date of divorce (23 December 2009) Unquote.

From those evidence, she doesn't undertand reason 1 and her lawyer is even more confused regarding that statement.

Regarding reason 2, statements from HM Revenue and Customs only state year and not month, so even if the ex-partner did not stay on the JSA for over 6 months, you wouldn't know. As a matter of fact he never stayed longer. He went on job training and had some temporary jobs because the statemenr also show NI contribution +JSA during those time.

Her lawyer has decided to go for an appeal.

The questions I am asking:

1. Could someone explain the refusal for reason 1?

2. Will it be possible to argue that during 2005-6 and 2006-7 that he wasn't on JSA for the all year but in and out of jobs as showed on the letter for HM revenue and Customs.

She was so sure that she was going to obtain the PR. I wonder which kind training the HO people get before working on the case.

86ti · Post by **86ti** » Sat Jan 15, 2011 8:27 am

I would think that point 2 is simply the explanation for point 1. The problem is apparently that the evidence she has provided was not sufficient to show a continuous period of exercising treaty rights for five years. HMRC, of course, knows very well when he was working and when not. The question is, will she be able to get the necessary documents.

mobio · Post by **mobio** » Sat Jan 15, 2011 10:07 am

Thanks 86ti,

The point is HMRC do not point months in their statement, they only point year. Meaning there is no real breakdown. if you have been claiming JSA for 2 months in 2006, they would mention 2006-7: JSA+ amount claimed.

However in the statement in 2006-7 there is also NI contribution (meaning he's been working) and claiming JSA.

Also he's been self-employed during those time 2005-6 but not declared. The only period declared as self-employed is up to the divorce day (December 2009) for which he's registered for (unfortunately she didn't send that document to HO). These are for the period of 2008-9 and 2009-10 registered self-employed and also working in between.

The main point is the ex-partner has been residing in the UK all this time. Some applicants have been granted PR even though they couldn't confirm the whereabouts of they ex-partners nor provide information about whether they have been excercising Treaty Rights.

In this forum I have read about the case where the court decided to allow the case even though the defendant could not prove that his ex-partner has been exercising her Treaty rights all the time they have been together.

I suppose she has a good case because they have been living together up to to the divorce day for 5 years and all the docs including rent documents in both they names.

If you have anything to add please feel free.

easy77 · Post by **easy77** » Sat Jan 15, 2011 10:48 am

Hi, from a personal experience PR will not be granted if u can't prove your ex-spouse exercised treaty rights as he/she will not be a qualified person. Another point is u can exercise treaty as a job seeker especially if for a brief period. So u can write a covering letter explaining these situation to HO, then send it to them (include the hmrc statement highlight the points ) asap, then u can put in for the appeal. Most likely they will overturn their decision nd not go to court. U can read EU directive 2004/ 38 so u can get more information to assist u.

easy77 · Post by **easy77** » Sat Jan 15, 2011 11:05 am

Also u will need evidence of self employment in 2005 and 2009 to win this case, he will need to declare those years to hmrc and pay tax and NI contributions, then send document to HO and court.

86ti · Post by **86ti** » Sat Jan 15, 2011 11:19 am

The OP was obviously a job seeker as JSA has been claimed. Since their lawyer already decided to put in an appeal he/she will hopefully also include all necessary arguments and references to relevant court decisions. The obvious problem with the HMRC statement is that they are low on detail.

mobio wrote:Also he's been self-employed during those time 2005-6 but not declared. The only period declared as self-employed is up to the divorce day (December 2009) for which he's registered for (unfortunately she didn't send that document to HO). These are for the period of 2008-9 and 2009-10 registered self-employed and also working in between.

So you actually do have gaps in your application. Self-employment must be properly registered and also demonstrated to be effective. The burden of proof is on the applicant though HMRC could be more helpful with better statements.

mobio · Post by **mobio** » Sat Jan 15, 2011 11:28 am

Hi Easy77,

I think you have a good point here. My cousing has been in touch with her ex-partner's Accountant. He has details of 2009-2010 self-employed details.
She will need to get in touch again with him and ask him to see if he could find details of self-employment for 2005-6.

For 2006-07 the HO says the ex-partner has been claiming JSA for the all year, which is not true. on the HMRC document it shows
2006-2007: JSA credits + work with a company X (tax paid mentioned).

Could you please be kind enough to show me the link for the directive you mentioned in your second post?

She will also write a letter to HO mentioning the point and in the meantime she has already logged an appeal through her lawyer.

What do you think she should say in the letter? That the ex-partner was working as a self-employed but did not declared while claiming JSA all this time? I think it will be difficult to produce an evidence for that time frame. Maybe at the appeal, the docs would be available.

What do you think?
Thank you very much

mobio · Post by **mobio** » Sat Jan 15, 2011 2:33 pm

easy77

The Accountant seems to have the ex-partner self-employment details for 2009 just after he left his job in september 2009 (while the marriage ended in December 2009). In the self-assessment sheet it shows that the ex-partner doesn't have any Tax Due. In fact there is overpayment. They said the ex-partner had overpaid.

Do you think this first statement is good? The other issue is regarding the 2005-06 where he claimed JSA and worked self-employed without being registered.

mobio · Post by **mobio** » Mon Jan 17, 2011 1:48 pm

I just had confirmation that the ex-partner was claiming Contribution-based JSA which is not defined as 'Public Fund'. So based on this information only, the HO cannot refused the application.

She even called the HO and mentioned the difference to them. The agent said she's right and he wondered as to why they refused the application. He even asked to send a letter to HO mentioning that point, unfortunately she has already send the appeal paper.

Hopefully the judge will reject the HO decision based on that fact.

easy77 · Post by **easy77** » Wed Jan 19, 2011 1:08 am

she can still send Ho the letter with any supporting documents as they may decide before the appeal, then she can withdraw appeal.

easy77 · Post by **easy77** » Wed Jan 19, 2011 1:14 am

pls check the 'guidance' on discussion topic for the directive 2004/38

or can someone provide a link for that here?

mobio · Post by **mobio** » Wed Jan 19, 2011 9:28 am

Thanks easy77,

The lawyer said it's better to go directly for appeal as my cousin has already lodged the appeal. HO can be very stuborn in their dealing. You could send some letter and they will still find an issue. In front of the judge it will be very difficult to do so.

Once again, I cannot understand how an EEA national claiming JSA is not a qualified person if he lost the job. If you lose the job and you do not register with the Job center, you are not defined are someone looking for job (so not a qualified person). If you go to the Job center, they will ask you to registered for JSA (be it income-based or contribution).

So what EEA nationals losing their jobs in the thousands since 2008 up to now do? I guess HO will ask them to make sure not to lose their jobs even if their employers are going bust!

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