Refused EEA4, unmarried partner - helpful for others?

[rastica]

I just wanted to post that my EEA4 application has been refused. I'm a bit gutted but as my current EEA2 permission doesn't expire until late 2012 (and thank goodness it was free to apply!) I'm ok for the moment - but wanted to share the response I got in case its helpful for others, as I researched forever and got positive advice from the Home Office help line that now turns out was wrong. Here you go, some facts first:

- Canadian, moved to the UK in 09/2005 with my Italian/Canadian partner
- had proof of co-residence/unmarried partnership with partner since 05/2005
- was on a working holiday visa from 09/2005 - 09/2007
- received family member of EEA status via unmarried partnership in 11/2007

My refusal letter said:

You have applied for a Permanent Residence Card as a confirmation of a right of residence in the United Kingdom on the grounds that you are the unmarried partner of **********, an EEA national. However, unlike direct family members of EEA nationals, unmarried partners have no automatic right to reside under EU law. They will only have a right to reside once we have issued them with a residence card. Until then they are not regarded as living in accordance with the EEA regulations. Only after they have resided for a continuous period of 5 years in accordance with EEA regulations will they acquire permanent residence. However, although you have previously been issued with a Residence Card, this doesn not expire until ** November 2012. You will not have resided in accordance with the regulations therefore until ** November 2012 and cannot qualify until this date. Your application has therefore been refused.

So I guess it was in fact that my first two years on a working holiday visa didn't count - which I suspected but hoped wasn't true and researched forever without a satisfying answer, and called the HO EEA4 help line and they said I would be able to apply given that above info.

Disappointing given how long it took to get all the materials together... but I'll just save them in tact until 2012 I guess!

[86ti]

The refusal is not surprising as you have been on the EEA route only since 11/2007. This issue has been discussed here several times.

The date on your residence card (not a "permission") is irrelevant. What is important, however, is that you stay in this relationship and your partner continues exercising treaty rights.

[Obie]

In the case of OFM, they start living in the UK in accordance with the regulation from the day they make their application. So when you RC is issued, it will be assumed your rights kicked in from the time of your initial application.

So i believe the UKBA is wrong to say it commence from the time the RC was issued, which was in the November of 2007.

If you applied 5 years from the day of your initial application, you should quaify.

The residence card is only confirmation of rights, it does not confer it.

The right to facilitation of entry and residence, an extensive examination of personal circumstance, and justification of refusal, kicks in from the day an application is made for those rights to be confirmed. Except of course if the application is subsequently rejected.

[Plum70]

The residence card is only confirmation of rights, it does not confer it.

If the RC is only confirmation as you say, then unmarried partners or other family members shouldn't need to apply in the first place (like family members).

From what I understand of the EU regulations (and I may be wrong), an OFM's rights of residence commences in earnest once they have been 'acknowledged' by that member state as a non-EEA family member of a qualified EU national by the issuance of RC. Meaning that the residence clock starts, not from when they apply, but from the date the RC is issued.

[Obie]

If the RC is only confirmation as you say, then unmarried partners or other family members shouldn't need to apply in the first place (like family members).

From what I understand of the EU regulations (and I may be wrong), an OFM's rights of residence commences in earnest once they have been 'acknowledged' by that member state as a non-EEA family member of a qualified EU national by the issuance of RC. Meaning that the residence clock starts, not from when they apply, but from the date the RC is issued.

I beg to defer with this analysis, and i am sure the courts or any right minded person will not agree with that UKBA analysis. Yes extended family members are subjected to an extensive examination of their personal circustance. That right to an extensive examination commence from the day the individual apply for it to be done, not when the memberstate decide to carry out this procedure. I can imagine a memberstate taking 3 years to deal with an application for a residence card for one "OFM" and taking 2 months to deal with another one. The right to a permanent residence will then be an artificial one, rather than the purpose for which it was created, to help facilitate the integration of an EEA national and his/her family members in a member state.

Furthermore, the directive states that people who have resided lawfully for 5 years in a memberstate. OFM who have a right to an examination, could argue their residence whiles waiting for their card is lawful.

It is more sensible, that it is assumed, if an application for a residence card from an OFM is successful, that those rights are applied retrospectively.
The definition of a Residence card does not change depending on who it is issued to, neither does the right afforded to these people.

Imagine a person, apply and was rejected, his rejection overturned on appeal, and the court exercise its discretion under 17(4b) and issue a residence card. can you tell that person, that he or she has to suffer the penalty for a previously flawed decision. Such action will make a nice Judicial review claim.

I believe this judgement support my view and lots of legal expert's.

[Plum70]

Obie, my point is that OFMs do not enjoy automatic rights of residence as family members do. This is clearly outlined in the relevant sections of the EU directive (and judgement you attached), and that in order to decide whether entry and residence should be granted to OFMs, member states should do so on the basis of their national legislation.

So for the UK, it's national legislation for unmarried partners requires that the UPs must have lived in a r/ship akin to marriage for at least 2 years, have substantial proof of co-habitation etc and then they apply for the appropriate visa which, once issued, confers on them the right to reside in the UK. Or is this not so?

Would it not then follow that OFMs rights of residence commence when a RC is issued?

By the way, are such RC applications not safeguarded by the 6 month admin timeline same as that for FMs applications?

[Obie]

Unfortunately, the EEA regulations do not consider "Extended family members" to be covered by Article 10(1) of the Directive.

If you look at the EEA regulations, regulation 17(3) which transposes Article 10(1) covers only family members in 17(1) and family member who have retain their right of residence under 17(2) of the EEA regulations, it does not cover people in regulation 17(4). The UK has illegally created a distinction, which is not evident in the directive.

Going back to the issue, you are very right, and i never disputed the point that OFM are subjected to examination of their circumstance. However Article 3(2) read with Artilce 10(2e) and (2f) does not give the level of dicretion to the Secretary of state that it confer on itself.

This is an issue which the court themselves are not comfortable with, which is why reference has been made to ECJ, and shortly, matters will be resolve.

[weareawesome]

I(a non eea national) have recently applied for my right to permanent residence here in the U.K. on the bases that I have been living at the same address with my wife and eea national daughter for the last 5 years. i have only been formally married to my eea wife for 3 years and we have been in full time employment for the last 6 years.our daughter was born here 5 years ago.
I received a call from the border agency informing me that I do not qualify for permanent residence because I was not in the UK legally for the first two years of the five year period and that i have been working here illegally. i have now also go the letter here in front of me saying that i i overstayed and worked here illegally. they say i can apply though the u.k route and pay a fee or wait until 2014.
i currently have a residence card until 2013 in my passport but i would like to see if anyone thinks it's worth trying to appeal on the bases of being in a durable relationship? will they have to use their discretion because i did not have an automatic right for the first two years when we were not married? advise would be greatly appreciated. can i take this matter to tribunal?

[Plum70]

I(a non eea national) have recently applied for my right to permanent residence here in the U.K. on the bases that I have been living at the same address with my wife and eea national daughter for the last 5 years.

What was your immigration status between 06 - 08 before you got married? Did you apply to the UKBA for confirmation of your durable r/ship prior to marriage? If not then your residence clock essentially begun ticking when you got married and PR will be obtained 5 years from then.

[Directive/2004/38/EC]

From what I understand of the EU regulations (and I may be wrong), an OFM's rights of residence commences in earnest once they have been 'acknowledged' by that member state as a non-EEA family member of a qualified EU national by the issuance of RC. Meaning that the residence clock starts, not from when they apply, but from the date the RC is issued.

Even if I were to agree with this approach, the issue of the RC is not necessarily the key point when the clock starts ticking.

In the case the unmarried partner were issued an "EEA Family Permit" while outside the UK, then I think it is pretty clear their legal residence would start with their arrival in the UK rather than with the issue date of the RC. This is because they have already been examined and determined to be family of EEA citizens...


As an aside: In the case of this OP, they were only together for 4 months before moving to the UK. So they would not have been able to get an EEA FP, and likely did not qualify under the OFM rules until they had been living together for 2 years...

[weareawesome]

##my residence status in my passport expired in 2005 and when i tried to make attempts to apply here after that ukba to me that i need to back and apply from my country of origin. my now wife then fiancée was heavily pregnant and after that we had young infant child to take care and i simply could fly for 12 hours just to get a little piece of paper in my passport i already had a right to..this was also too expensive for us and very environmentally unfriendly.according to the metock judgement i do not need to go back so assumed my right of residence under the zambrano judgement. a right is not something you need to apply for..you either have or you don't. the earlier chen judgement also allows you to assume your right of residence under ec law as the parent of a dependant child of a member state. i think the ukba does not accept this this law because it is not in line with national immigration laws. they illegally act against ec law..we're either part of the eu or we're not...
anyway i've completed my tribunal papers and we see what the court decides...either way at least it will be documented and you never know which way the ruling will go , but i'll fight it due to a deeply rooted believe that a parent of a dependant child to have the right of residence in country of the child's nationality. one cannot deprive a parent or child form that right. ##if someone wants settle in the eu illegally there easier ways to do than to bring a child into the world dishonestly## a right does not start from the moment you apply for it it start from the moment you can prove that you have that right..