Legal status after EEA2 application was refused? Please Help

[pol]

Hi,
My application EEA2 for a residence card was refused a couple of days ago.
On the letter I received from HO they said I attracted the right of appeal.
I've been researching on the web and forums, and apparently I could send a fresh new application instead of appealing.
The problem is, they have my passport (and my son), and our visas are expired already.
I know I have 10 business days in order to submit the appeal form.
So my question is:

Am I still legally in the United Kingdom after the refusal of the application? (10 business days to submit appeal haven't passed yet).

Should I appeal so I'm sill legally in the UK before submitting a new application.

Please, I would really appreciate some help!

I don't qualify for free legal representation and I can't afford to pay a private solicitor.

Thanks


Evelyn.

[86ti]

You are lawfully in the UK if your EEA spouse is exercising treaty rights. You do not say on which grounds your application was refused.

See also http://www.immigrationboards.com/viewtopic.php?t=71433

[pol]

Hi,
Thank you so much for your reply.
They actually refused the application because they say my husband wasn't exercising treaty rights. He is self-employed and has a few clients overseas.
The specific reason they gave me is that we showed evidence of employment overseas and invoices issued in america dollars therefore he wasn't exercising the treaty rights.
We submitted further evidence that all the money has been brought inside the UK and the taxes has to be paid in the UK. Plus, they didn't consider letter of employer here in the UK that we submitted originally. We mentioned this when sending further documents and they didn't consider it again.

The exact answer when we submitted further evidence was:

" The application was considered under section 6......... Decisions can only be reversed where it is clear that the original decision was NOT taken in line with the prevailing policy and immigration law at the time the decision was reached. The onus is on applicants to demonstrate that they satisfy the statutory requirements.
I have reviewed the handling of your application and the decision made on it and I am satisfied that the correct procedures were followed in the decision making process"


Now, my husband has been able to get more clients here in the UK and we believe has always been exercising treaty rights.

I have I have explained in detail.

Please I'd appreciate some advice.

[86ti]

Why can't you appeal?

Please decide who of you two (obviously wife here, husband in the other thread) writes the question here as this and multiple posts unnecessarily creates confusion.

[pol]

Sorry, I am using my husbands profile to post the question.

We feel like re applying would be much more straight forward than going to an appeal court without legal representation.
Plus, I'm not sure If I'm entitled to work while the appeal is in process. I understand I would be entitled if I re apply.

I forgot to mention that my son is getting the European nationality soon. Would that help with anything?

Thanks you so much for the help, and sorry if I created any confusion posting another question.


Evelyn

[86ti]

Plus, I'm not sure If I'm entitled to work while the appeal is in process. I understand I would be entitled if I re apply.

Your conclusion doesn't make any sense. You derive your rights from the marriage to an EEA national who is exercising treaty rights.

I forgot to mention that my son is getting the European nationality soon. Would that help with anything?

As he is a dependent I don't see quite how.

[pol]

Thanks for your help again.

Sorry if it sounds I don't make sense, but I am confused and that's why I'm trying to get answers!

Do you know about my legall status at the moment?
Am I entitled to re apply?

Your help would ne much appreciated.

[pol]

I guess I'm confused because in the refusal the say he is not exercising treaty rights.

Any further advice on my rights to re-apply?

[86ti]

Your legal status is as commented above. You need to know if he is exercising treaty rights and be able to prove it if necessary.

I personally think you can simply reapply though you would have to explain the whereabouts of your passports in a cover letter.

[Directive/2004/38/EC]

pol,

In what way is your husband structuring his self employed work? Does he have his own Ltd company? Does he do the work in the UK?

It may be worth appealing in any case. UKBA seems to not even show up for many appeals and the judge may make short order of it all.

Appealing would not prevent your from applying again with different evidence or under a different category (e.g. husband as employee, self employed, student, or as financially self sufficient).

[pol]

Thanks a lot for the responses guys.

pol,

In what way is your husband structuring his self employed work? Does he have his own Ltd company? Does he do the work in the UK?

It may be worth appealing in any case. UKBA seems to not even show up for many appeals and the judge may make short order of it all.

Appealing would not prevent your from applying again with different evidence or under a different category (e.g. husband as employee, self employed, student, or as financially self sufficient).

My husband is registered as a self-employed. He doesn't have a ltd company. The work he has done for the companies abroad (US) is has completely done in the UK. But he also does work for a couple of other clients in the United Kingdom. By this time he has new clients in the UK. We sent that information when we received the refusal letter but they didn't consider it (that's what I understand from what they wrote).

So we feel that re-apply is our best bet. But the only thing that is holding us to send the new application is the situation with my expired visa.

Also, my son is getting the Italian citizenship soon. I'm starting the process of naturalization on April. Should we mention this?

I really thank you all for the help.

[Directive/2004/38/EC]

Did you enter the UK on an EEA family permit?

It does not sound like you are illegal in the UK. Sounds like your EEA husband has been working all the time, which is the key thing. Not sure why they did not like that his clients were US based, but that does not matter too much. (He now has proper-beer drinking, proper-English speaking clients, so UKBA should be a lot happier.)

[pol]

Thank you so much.
I'm feeling a bit clearer now.
I guess they refused the application the first time because we didn't include any evidence of the money being brought into the UK. We sent them the evidence right away after we received the refusal letter, but they didn't consider it for the reasons mentioned earlier. What I really don't understand though, is that we also sent evidence of a client in the UK the first time and they completely ignore it or didn't consider. Anyway, now we feel we have many strong reasons to send a new application.

Thanks again for all the help.


Evelyn

[pol]

Sorry I forgot to answer one of your questions.

I entered the UK witha turist visa. I am chilean and we do not need visa to enter the UK as a visitor, so we didn't apply for the family permit. We moved by the end of the summer and we needed to move fast so we could find a school for our son.
Would that make any difference you think?

[Directive/2004/38/EC]

I entered the UK witha turist visa. I am chilean and we do not need visa to enter the UK as a visitor, so we didn't apply for the family permit. We moved by the end of the summer and we needed to move fast so we could find a school for our son.
Would that make any difference you think?

Entering with an EEA family permit would have made it clear from day 0 your status in the UK (and allowed you to work immediately). But it is not required for applying for a Residence Card. Your status in the UK is based solely on your relationship to your husband and that he is working in the UK.

I also do not think it is worth mentioning your son. He would only be relevant for immigration purposes if your husband was non-EEA.

[pol]

Thanks again !!!
You've been such a great help.

One more question, what do you mean by not mentioning my son? Not putting him on the new application?

[Directive/2004/38/EC]

You had said

Also, my son is getting the Italian citizenship soon. I'm starting the process of naturalization on April. Should we mention this?

What I meant was that I don't think his (potential) Italian citizenship is particularly material to your Residence Card application.

But are you applying for a Residence Card for him also in the mean time? It will make it easier for him to travel until such time as he gets an Italian passport.

[pol]

I see. I think you're right we are not gonna mention that.
And yes, we've been applying for him as well.

I feel so much confident now.
I deeply appreciate all your advice.


Regards,

Eveyln

[Nimitta]

They actually refused the application because they say my husband wasn't exercising treaty rights. He is self-employed and has a few clients overseas.
The specific reason they gave me is that we showed evidence of employment overseas and invoices issued in america dollars therefore he wasn't exercising the treaty rights.

It is important for my case. My husband is self-employed too, and his clients are mostly from the US. What HO told you about clients oversees sounds a little bit weird. He is working in the UK. Why is it relevant where his clients are residing? Where did they pull this requirements from?

I spent almost all night looking for laws, rules or regulations allowing HO to interpret "self-employed" as "having clients within the UK" and failed. There are NONE.

Here is what they actually say about proving the status: "Self-employed person - The EEA national must be able to show evidence that they have established themselves in the UK as a self-employed person e.g. a copy of business accounts or an accountant’s letter."

The conclusion I came to is that as long as a self-employed person is registered for taxes, actively working and have a proper license (if applicable), HO should not care about anything else.

http://www.ukvisas.gov.uk/en/ecg/eunati ... s#13494515

[smallpie]

hi pol, am a big fan of this site and very gud for advices..my case is similar to yours. i applied for RC last year and was refused later this year april 2011.. reason- the caseworker says my eu-partner id card not valid to meet up the requirement.. i sent for reconsideration, but wasnt approved too, same they told u in the letter. so i say u shld re-apply asap.
it says further in the letter i can make another application if i feel am entitled as a family member of an eu-nationals. so i now re-applied immidediatley april 2011 , and now included my eu-partner valid passport with all other current docs, payslips, 3yrs joint tenancy agreement, joint council tax bills , joint electricity bills , water bills and other relevent docs of me and my eu-partner.
but the home office didnt return my passport in the 1st application as my old work permit has expired during the application. i indicated in the new application my old ukba ref number and stated they got my valid passport with them.
plz, i just wanna know frm the kind pple here, if i have done the right thing by re-applying again immidiately? and if anyone knows how long it take ukba to issue COA as for 2011 and RC.? thanks.

[Directive/2004/38/EC]

smallpie,

Are you married and is your Eu-citizen spouse working in the UK?

[86ti]

smallpie, it would be very useful if you kept your queries in your own thread and stopped posting them all over the place and also stopped hijacking other posters' threads. That makes it difficult for the people here to follow your case and help effectively. You could also save yourself the time of repeating yourself and keep reiterating your story.

To answer your question: I do not see any other alternative to drive your application forward. Information regards timelines are given in some of the other threads you have been posting in.

[smallpie]

directive, thanks for your reply.. yes she is finnish , working and living in uk since 1999. and we are un-married partners living together for over 3yrs now. she works with the city of london police as a intelligence researcher.

and thank you 86ti.