Need HELP/Advice!!!! EEA4 fresh application refused

[aliaziz]

Hi everyone

I need your urgent advice on my EEA4 application. Basically my situation is that I got married to a Dutch National and was granted 5 years resident permit in Aug 2004 till Aug 2009 - My wife worked for 2 months and then suffered from Schizophrenia as this is a mental condition - She was unable to go out and work and therefore deal with things such as opening a bank account, signing agreements etc - I initially myself lodged the application which was refused due to non-sufficient evidence of her staying in the UK - I did attach medical reports etc to show that that due to he mental illness she was incapacitated and as we know that Schizophrenia cant be cured fully.
My application was refused and it went to appeal which was refused as well.
In May 2011 I lodged a fresh application which has now been returned mentioning that because of the fact that I applied for that period and my appeal did not go through I have cannot appeal again but I did not appeal I sent a fresh application through a solicitor this time explaining the situation again but with a clear reason and just pointing out her incapacity.
They have again written at the end that I can apply again via a fresh application (which leaves me confused as this is what i did?) Also they have kept my passport for enforcement they say. I am not sure whats going on my solicitor said that he finds it very odd and strange and is going to ask the local MP for a support letter and re-apply again.

Please I need your advice and if anyone else had the same experience and what could be done?

Thank you very much

[Directive/2004/38/EC]

Your wife is in the UK? Do you live together? Has she been working at all?

What exactly were the words in the UKBA letter for the reason they were refusing the application?

[joshuaaubin]

The Habitual Residence Test say's, if an italian come to UK as a worker and work for TWO years and become permanently incapacitated he aquire a permanent residence. It did not say TWO months.
Right now if it is only TWO months she work then she dont have a status of a worker HO will refuse you but their is a way out. If your EEA is self sufficient then you can apply as a NON EEA whom the EEA is self sufficient not worker because as you said she only work for two months.

[aliaziz]

Hi

Thank you for your replies. The situation of her mental illness was out of my hands. Her mental illness did not allow her to continue so working for at least 2 years was out of question. This is what I explained that these were unforeseen circumstances so what could I do? I thought they would consider this on compassionate grounds but they don't seem to budge? What about any Human Rights act that comes into play here?

Following is the letter in fill that I received:

On 14 OCtober 2009 your applied for permanent residence card on the basis that your EEA national sponsor was exercising treaty rights for 5 years through permanent incapacity.
This application was refused with a Right of Appeal on 26 March 2010.

On 30 June 2010 you appealed this decision before the First-Tier Tribunal and on 08 July 2010 Immigration Judge dismissed your appeal.

You submitted an application to the Upper Tribunal on 15 July 2010 and this was granted on 11 August 2010.

Your appeal hearing against the determination of Immigration Judge was heard on 09 Feb 2011 and your case was dismissed again on 15 Feb 2011

Under regulation 26(1) of the 2006 Regulations provides for a right of appeal against an EEA decision. However as your previous application has been refused and dismissed appeal at appeal you do not have a right of appeal.

Your application has therefore been refused under Regulation 26(4) and (5) of the 2006 Regulations.

If you consider that you have a right to reside in the UK as a matter of European law, and are in a position to submit the necessary information to support your application for permanent residence as recognition of that right you may wish to submit a new application.


Well thats that and at the end it says as you have no further right to stay in UK you should prepare to leave you passport has been retained and send to national case ownership unit etc etc

Now I don't have a clue what hes talking about coz a fresh application IS what we submitted.

Thanks in advance for your advice(s).

[joshuaaubin]

I dont think there is a compasionate in eea well some here may know better i just think they are just going by what the law say, in this same HRT it say if the eea have live in uk for 3yrs he acquire permanent residence too but i dont know much about that. If your eea spouse have apply for a permanent residence and she got it you dont need to show anything on this bases if your eea is not a dual citizen like mccarthy you can tell her to apply for a permanent residence i dont think they will use anything against her that wont favour her like mccarthy if she dont have a british nationality. Tell your eea spouse to apply for a permanent residence. This is best to my own knowledge.

[bobobo]

I think the issue is that there is no proof that the eea national was in UK for 5 years, like you said if your wife has a medical condition then a letter from the doctor stating that she is sick and confirming that she has been here for 5years can help, also didnt she have a bank account previously or her name on tenancy agreements, you could have opened a joint account or joint bills in both your names would have helped.

Hi

Thank you for your replies. The situation of her mental illness was out of my hands. Her mental illness did not allow her to continue so working for at least 2 years was out of question. This is what I explained that these were unforeseen circumstances so what could I do? I thought they would consider this on compassionate grounds but they don't seem to budge? What about any Human Rights act that comes into play here?

Following is the letter in fill that I received:

On 14 OCtober 2009 your applied for permanent residence card on the basis that your EEA national sponsor was exercising treaty rights for 5 years through permanent incapacity.
This application was refused with a Right of Appeal on 26 March 2010.

On 30 June 2010 you appealed this decision before the First-Tier Tribunal and on 08 July 2010 Immigration Judge dismissed your appeal.

You submitted an application to the Upper Tribunal on 15 July 2010 and this was granted on 11 August 2010.

Your appeal hearing against the determination of Immigration Judge was heard on 09 Feb 2011 and your case was dismissed again on 15 Feb 2011

Under regulation 26(1) of the 2006 Regulations provides for a right of appeal against an EEA decision. However as your previous application has been refused and dismissed appeal at appeal you do not have a right of appeal.

Your application has therefore been refused under Regulation 26(4) and (5) of the 2006 Regulations.

If you consider that you have a right to reside in the UK as a matter of European law, and are in a position to submit the necessary information to support your application for permanent residence as recognition of that right you may wish to submit a new application.


Well thats that and at the end it says as you have no further right to stay in UK you should prepare to leave you passport has been retained and send to national case ownership unit etc etc

Now I don't have a clue what hes talking about coz a fresh application IS what we submitted.

Thanks in advance for your advice(s).

[aliaziz]

I know but her mental state didn't allow me to do anything it was 5 years for constant struggle with her you see - your mind goes blank coz of certain things. I'm now contacting the local MP and getting a letter of support and applying again and I'll see how that goes

[Kitty]

Was the refusal of your first application and the subsequent appeal solely on the basis that there was no evidence that your wife had been residing in the UK for 5 years? Or was there an issue with whether she was a worker who had been permanently incapacitated (having only been a worker for 2 months and not the 2 years required)?

Would she have satisfied the requirements as self-sufficient during those 5 years based on your income?

At the time she fell ill, the 2000 regulations would have been in place, which do not have a provision for an "incapacitated" person: for the period 2004 - 2006 I can't see how she would have been in the UK "in accordance with" the relevant legislation.

[aliaziz]

Basically when I filled the form in it said that tick all the treaty rights that apply so I ticked permanent incapacity, worker and self-sufficient, because I thought all that did apply. The judge did accept her as a worker because in Regulations it does say that if a worker stops working not because of her own making it illness then the rest of the period should be considered as working. The judge had no problems with that they also recognised her being mentally disabled as per the medical reports attached. But advised after dismissing the appeal to lodge a fresh application with one clear reason - which we went for this time I.e. Permanent incapacity, and the letter above from HO is the latest correspondence.

[joshuaaubin]

Basically when I filled the form in it said that tick all the treaty rights that apply so I ticked permanent incapacity, worker and self-sufficient, because I thought all that did apply. The judge did accept her as a worker because in Regulations it does say that if a worker stops working not because of her own making it illness then the rest of the period should be considered as working. The judge had no problems with that they also recognised her being mentally disabled as per the medical reports attached. But advised after dismissing the appeal to lodge a fresh application with one clear reason - which we went for this time I.e. Permanent incapacity, and the letter above from HO is the latest correspondence.

You can reapply as you have said, but i know if they say you cannot appeal and they try a removal order that will trigger another right of appeal to the court. as long your eea apouse is still living in uk. then you can use your right to family life. listen to the example people are giving here as it help alot hopefully in your new application.

[Kitty]

Basically when I filled the form in it said that tick all the treaty rights that apply so I ticked permanent incapacity, worker and self-sufficient, because I thought all that did apply. The judge did accept her as a worker because in Regulations it does say that if a worker stops working not because of her own making it illness then the rest of the period should be considered as working. The judge had no problems with that they also recognised her being mentally disabled as per the medical reports attached. But advised after dismissing the appeal to lodge a fresh application with one clear reason - which we went for this time I.e. Permanent incapacity, and the letter above from HO is the latest correspondence.

Can you post the text of the determination from the judge?

A person may continue to be defined as a "worker" under the 2000 and 2006 Regulations if they are temporarily unable to work because of illness. If the judge agreed that your wife's condition was "temporary" then why did he not make a finding that she had achieved the right to PR? What evidence was missing?

If you have a determination that confirms that she has been a qualified person for at least 5 years, then you can reapply showing her residence during that period.

Is the problem that you applied again saying that she was "permanently incapacitated"? If you are using a category under which an appeal was previously refused then that explains why you do not have the right of appeal on that particular ground.

It sounds as though she cannot come under the "permanent incapacity" provisions because she did not have the right period of work before her illness. However, she could succeed under the "worker" category if her illness is deemed temporary.

This page details a recent case in the Upper Tribunal that considers the meaning of "temporary" inability to work.

[aliaziz]

The determination is 4 or 5 pages long, perhaps I can email you a scanned copy?

And ye that seems like the case may be the temporary worker apprach would work I guess.

[EUsmileWEallsmile]

Please engage a good professional immigration lawyer. You may find that you are breaking new ground.

[Directive/2004/38/EC]

Please engage a good professional immigration lawyer. You may find that you are breaking new ground.

When you have a chance to try to understand some of the issues in your situation before you turn to a good immigration lawyer, then you both have a better chance of communicating clearly and can better evaluate how good the lawyer is.

[aliaziz]

Thank you everyone...really appreciate your advice(S). Just hoping that it will be a positive decision this time. Otherwise you know I would have to go back - I wish you all the best in your future.

Thanks