ILR REFUSED UNDER EEA 4 APPLICATION

[Kitty]

Hi fouzi

Interesting what John said about Irish citizens being considered automatically to have PR in the UK - I have not heard of this myself.

In any event, you seem to be able to show you have PR either way.

The law you will need to refer an Immigration Judge to is as follows:

The Immigration (European Economic Area) Regulations 2006.

15.—(1) The following persons shall acquire the right to reside in the United Kingdom permanently—

(a)an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;.
(b)a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

This should cover you: you have "resided in the UK in accordance with the Regulations" by being a worker AND then for any subsequent period when you had PR.

Now, your wife. Has she resided in the UK "in accordance with the Regulations" for 5 years? THe answer is in Regulation 14:

Extended right of residence
This section has no associated Explanatory Memorandum
14.—(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.

(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.

So your has been "residing in the UK in accordance with the Regulations" all the time you, the EEA national, were a worker (a "qualified person"), or have had PR. And after 5 years of doing that, she also acquired PR (see Regulation 15 again).

The only thing that might affect your status is if you are a dual UK/Irish national who has never actually resided in Ireland. But since you say you have been living and working here for the past 20 years, it looks like you moved to the UK as an adult.

[Obie]

Obie, the kids both have British passports already. And they were submitted with the application.

BOTH MY TWO KIDS BIRTH CERTIFICATE AND PASSPORTS ( BOTH MY KIDS HAVE BRITISH CITIZENSHIP) BORN IN THE UK.

Thanks Directive, it was not immediately clear to me that the children had obtained a British Passport. I subsequently gathered from another thread.

[fouzi]

fouzi, please stop shouting! On the internet posting in block capitals is equivalent to shouting, and on this board such posts are liable to be deleted without warning.

hi john, yes i will stop, sorry about that i did not know i am new on here you see. but sorry guys.... did not mean to shout....... fouzi

[John]

Interesting what John said about Irish citizens being considered automatically to have PR in the UK - I have not heard of this myself.

Actually on delving further, I need to make a technical amendment to what I posted earlier. That is, Irish citizens living in the UK do not automatically get PR status (but might gain that under the terms of the EU Directive), but instead have "de facto Right of Abode".

See this Wikipedia webpage, and in particular read :-

Irish citizens and the Common Travel Area

Because of the Common Travel Area provisions between Ireland and the United Kingdom, Irish citizens have a de-facto right of abode in the United Kingdom. However, with the exception of those Irish persons born before 1949 who have reclaimed British subject status, the entitlement to reside in the United Kingdom is not unconditional, and Irish citizens (who are not also British citizens) are subject to removal and deportation from the UK.

[Kitty]

I was just reading the same Wikipedia page.

So for the purposes of the Regulations, I would assume that an Irish national must still complete 5 years as a qualified person before they acquire PR.

I think it's absolutely clear though, that in any case a non-EEA family member has a right of residence (and PR consequent upon that) as long as the EEA partner is either a qualified person or has PR.

Is there anything we're missing? The refusal of fouzi's wife's application seems such a basic mistake... (not that I'm saying the UKBA never makes basic mistakes)...

[fouzi]

I was just reading the same Wikipedia page.

So for the purposes of the Regulations, I would assume that an Irish national must still complete 5 years as a qualified person before they acquire PR.

I think it's absolutely clear though, that in any case a non-EEA family member has a right of residence (and PR consequent upon that) as long as the EEA partner is either a qualified person or has PR.

Is there anything we're missing? The refusal of fouzi's wife's application seems such a basic mistake... (not that I'm saying the UKBA never makes basic mistakes)...

Hi Kitty, i have just been reading the refusal letter few times again and again and i have noticed this: basically there is a paragraph where it says: in making the decision to refuse your application consideration has been given to the following: eea 4 application form, your algerian passport, your eea passport, marriage certificate, my 2 childrens birth certificates, all the bills, (listed in details) veolia water bil, bt phone bill, etc... basically they have listed every single document i have sent with the application, but not my PR document, so do you think its a genuine mistake and they are under the impression that i have not got the PR DOCUMENT????, they have sent it back to me enclosed with the other paperwork and my irish passport.
and do you think that i should may be ring them first to find out or just go through the appeal anyway, cheers

[Obie]

I was just reading the same Wikipedia page.

So for the purposes of the Regulations, I would assume that an Irish national must still complete 5 years as a qualified person before they acquire PR.

I think it's absolutely clear though, that in any case a non-EEA family member has a right of residence (and PR consequent upon that) as long as the EEA partner is either a qualified person or has PR.

Is there anything we're missing? The refusal of fouzi's wife's application seems such a basic mistake... (not that I'm saying the UKBA never makes basic mistakes)...

Either the case worker never considered the PR, or the PR was issued under the previous legislation which provides for PR after 4 years, and the case worker feels that because it was issued under previous legislation it is not in accordance with the EEA regulations. Maybe she is waiting for evidence that the OP hasn't been out of the UK for more than two years since it was issued. Regulations 15 is drafted in such a way as to give so much margin of discretion to coworkers. In light of recent CJEU jurisprudence, things should be pretty clear.

[EUsmileWEallsmile]

Irish citizens have no particular privileges for the purposes of EU law in the UK. They had many years back, but since 1994 that is no more. They are not considered to be aliens in UK law and are automatically considered to be settled. That would mean for example that they could sponsor a spouse under the immigration rules as if they were a British citizen.

I am baffled by the case presented. If one has PR, then there are no conditions (such as employment, student, self-sufficient, medical insurance, etc). Spouse does not acquire PR without residing in the UK for 5 years with EU qualified person.

Going by what the poster stated, he will have achieved PR on the day the regulation came into force (April 2006). If his wife joined him afterwards, all she would have needed to do was live in the UK and she would have also achieved PR.

BTW, children born to Irish citizen parents are Irish citizens (whether they like it or not).

[Kitty]

The most likely explanation seems to be that the UKBA did not see or take account of the letter confirming PR. Possibly the OP did not confirm in his wife's applicaton that he had been working in the UK for so long, and only supplied evidence of his last 5 years' activities?

In-country appeals seem to be reaching the Tribunal fairly quickly at the moment, but in the circumstances it seems it would be a good idea to contact UKBA and confirm fouzi's PR status to see if the decision can be sorted out more quickly.

fouzi, sorry if I missed this but what is the date on the letter confirming your PR status?

[fouzi]

The most likely explanation seems to be that the UKBA did not see or take account of the letter confirming PR. Possibly the OP did not confirm in his wife's applicaton that he had been working in the UK for so long, and only supplied evidence of his last 5 years' activities?

In-country appeals seem to be reaching the Tribunal fairly quickly at the moment, but in the circumstances it seems it would be a good idea to contact UKBA and confirm fouzi's PR status to see if the decision can be sorted out more quickly.

fouzi, sorry if I missed this but what is the date on the letter confirming your PR status?

hi kitty, yes the date for my PR was applied for back in feb 2005 and issued to me in october 2005, by the way i have filled in the eea4 and out in the appropriate box my home office reference for the PR and also included the original PR document with all the docs required. i think the case worker just did not want to see it and disregarded it, because on the refusal letter he mentioned all the document i have sent with my application in details, p60s wage slips, bank accounts, etc........ but did not mention once that i have sent my pr document with my application. cheers. do you happen to know if there is a number i can call perhaps to speak to them direct about this rather than going through the appeal , tnx, fouzi

[EUsmileWEallsmile]

Are you sure of your dates? You would have got permanent residence under the immigration rules and would have amounted to the same thing I wonder if that's causing confusion? Please read the "transitional arrangements, chapter 13". http://www.ukba.homeoffice.gov.uk/sitec ... dlaw/ecis/

Why would you have applied for permanent residence back in 2005? I'm curious because, I suspect that most Irish citizens would not have known that they could do this.

[fouzi]

Are you sure of your dates? You would have got permanent residence under the immigration rules and would have amounted to the same thing I wonder if that's causing confusion? Please read the "transitional arrangements, chapter 13". http://www.ukba.homeoffice.gov.uk/sitec ... dlaw/ecis/

Why would you have applied for permanent residence back in 2005? I'm curious because, I suspect that most Irish citizens would not have known that they could do this.

hi eusmile, yes the dates are correct, and i did apply at the time for no particular reason, i phoned the home office once and they said i did not need to apply for PR but you can i you want to so i said yes please i might need it one day who knows, funny enough i came very handy in this instant. eu smile did you read my message above on the fact that on my wife eea4 application i did fill in the part for my PR reference and supplied a copy of my pr letter and this 2 were disregarde.

[fouzi]

Are you sure of your dates? You would have got permanent residence under the immigration rules and would have amounted to the same thing I wonder if that's causing confusion? Please read the "transitional arrangements, chapter 13". http://www.ukba.homeoffice.gov.uk/sitec ... dlaw/ecis/

Why would you have applied for permanent residence back in 2005? I'm curious because, I suspect that most Irish citizens would not have known that they could do this.

hi eusmile, yes the dates are correct, and i did apply at the time for no particular reason, i phoned the home office once and they said i did not need to apply for PR but you can i you want to so i said yes please i might need it one day who knows, funny enough i came very handy in this instant. eu smile did you read my message above on the fact that on my wife eea4 application i did fill in the part for my PR reference and supplied a copy of my pr letter and this 2 were disregarde.

i just want to add could you please tell me if in chapter 13 it says that people like my self who had apply for PR then, will be treated as same under 2006 regulations, basically having pr before 2006 regulations or after is the same. am i wright? or wrong? cheers

[Obie]

It is settled law, that a residence card or a Permanent residence card on its own does not confer rights. It may be declaratory in nature but it does not confer rights.

As this card was issued in 2005, the Secretary of State may need evidence to confirm its continued validity.

Even though the permanent residency you hold was issued under UK immigration rules, and not under EU obligation, and the qualifying period for that was 4 years as opposed to 5 years under EU law, it may still have validity under transitional arrangement, as explained by a previous member, provided the card remain valid.

The onus will be on the applicant to show that the permanent residency remains valid.

[EUsmileWEallsmile]

I was wondering how your children achieved British citizenship. For EEA national children born in the UK, they would be British if their parents were free of immigration control, effectively those with permanent residence. However, Irish citizens appear to be treated differently and their UK born children are also British from day 1 (and Irish).

Surely you applied for permanent residence to give your spouse some rights in the UK (I would be surprised if you'd done so on the spur of the moment)?

According to the information presented, you will have achieved PR on 30th April 2006.

[fouzi]

I was wondering how your children achieved British citizenship. For EEA national children born in the UK, they would be British if their parents were free of immigration control, effectively those with permanent residence. However, Irish citizens appear to be treated differently and their UK born children are also British from day 1 (and Irish).

Surely you applied for permanent residence to give your spouse some rights in the UK (I would be surprised if you'd done so on the spur of the moment)?

According to the information presented, you will have achieved PR on 30th April 2006.

hi eu smile, yes i have applied for pr just after making the phone call to the home office for a query, and this was well before even i ve met my wife. my children are born here in the uk and i have pr so they are born british. my wife only had the 5 year stamp as the eea familly member.

[Punjab]

first thing first

if you can proove that you are in the UK for last 5 year and you were working and you can show your tax contributions, ni etc

than it means you AUTOMATICALLY aquire PR in the UK and now on that base no one can kick your wife out of this country as she is a partner of an EU citizen.

so dont worry about her as no one can expel her from the UK under european law. and its better if you get some lawer and also
no one can keep your wife's passport as its her government's property

[Kitty]

fouzi, did you say you never got a residence permit, just the letter from the UKBA confirming PR in 2005?

I wonder if they are now taking a rather narrow reading of the transitional provisions. The 2006 Regulations say (in Schedule 4) that any person with a residence permit endorsed to show PR under the old rules must be treated as having PR for the purposes of Regulation 15.

However, you don't have that permit. So you need to rely on the fact that you have exercised treaty rights continuously during a 5-year period at some point. The 2006 Regulations then say that whenever that was, it can be treated as leading to PR. However, you would have to submit documents to prove it.

I know you mentioned submitting payslips, P60s etc. Can you confirm what period they covered? It doesn't have to be the last 5 years: it can be any 5 year period since 2000 during which you were working in the UK.

[fouzi]

fouzi, did you say you never got a residence permit, just the letter from the UKBA confirming PR in 2005?

I wonder if they are now taking a rather narrow reading of the transitional provisions. The 2006 Regulations say (in Schedule 4) that any person with a residence permit endorsed to show PR under the old rules must be treated as having PR for the purposes of Regulation 15.

However, you don't have that permit. So you need to rely on the fact that you have exercised treaty rights continuously during a 5-year period at some point. The 2006 Regulations then say that whenever that was, it can be treated as leading to PR. However, you would have to submit documents to prove it.

I know you mentioned submitting payslips, P60s etc. Can you confirm what period they covered? It doesn't have to be the last 5 years: it can be any 5 year period since 2000 during which you were working in the UK.

i have sent a letter from my previous emloyer which he has kindly wrote for me stating that i have been working for his company from 2000 to 2008., the home office did say at the time if you want my passport endorsed with the pr i can just end it but the letter sent to me by them is as good as having that sstamp , somilar basically.

[fouzi]

Hi All,

Today i have deided to call the UKBA and try to get to bottom of this issue, so i asked the lady in customer service and said to her about my case with the reference etc, i explained that the refusal was due to an error from the case holder may be and she said no, because you did not exercice treaty right in the uk for 5 years whiles married (only 3 years as married man) married in 2005 but made redundant in 2008 and did not work since so she said your wife will not get her ILR. so i said what about my PR which you have not take in consideration and disregarded, she said ohhhh there is no such law saying if you have your PR as eea member that your wife will have her ILR regardless if you are working or not, her exact words were DEFINITELY NOT. so i said ok what about my 2 childrens who are both british citizens and both have british passport, is this gives you the right to remove and deporte my wife and send her back to her country,with her kids, so you will be deported 2 british citizens from britain there own country, (i think she got a bit annoyed with my question) so she said i can not comment on that???????? is it me who is missing something here?

[John]

fouzi, simply .... appeal!

[joshuaaubin]

If they refuse your wife again, get a lawyer and take them to court, someone with permanent residence do not need to show you are exercising treaty right becuse you have already done that and say to them that they cannot depot your wife only but they must deport you too and see what they say. You will win them in court anyway.

[Obie]

fouzi, simply .... appeal!

Agreed.

From past experience dealing with them, those staff are poorly trained, and they try to cover it up by getting rude, abrasive and confrontational.

They simply cannot be reasoned with.


The only language they understand in my view, is legal force, by means of Judicial review, and to a lesser extent appeal.

[EUsmileWEallsmile]

You need to get your terminology spot on as it's going to cause confusion. Your wife will not get ILR under the EEA regulations; she can only get permanent residence. You have permanent residence (PR).

From what you say, you achieved a form of PR under the immigration rules. Permanent residence in EU law did not exist before April 2006. It was a concession under UK law. However, the UK 2006 regulations say that this is type of PR is considered to be Permanent Residence for 2006 regulations purposes. I posted the link to it yesterday; also read the regulations themselves, there is a section called arrangements, schedule 4.

Now, if for some reason you did not actually get PR as above (maybe because there is no stamp in your passport), then you still would have qualified for Permanent Residence in April 2006 according to the new regulations. Your employer's letter will help, but you would also need proof of residence for 5 continuous years.

If you had permanent residence before you married (and from what you say, you did indeed) and your wife lived with you in the UK all those years, then she will also have permanent residence.

Back to the UKBA. Are they disputing the fact that you have permanent residence or not? If they accept that you have, then it should be quickly cleared up, even if it means going to appeal.

There is something else that has been missed. If an EU citizen is a worker, they do not automatically lose that status if they are made unemployed. (I know there are conditions and exceptions, but I'm not going into that just now). Children and spouses don't lose the rights to residence either in those circumstances and your wife would still accrue residence time towards PR.

Appeal, if your case is as simple as you've stated you can't lose no matter what way you cut it.