EEA4 Refusal Help Please just because not married for 5 year

[ys704]

Please please someone help me.......

My work visa going to expire on 20th Dec 2010. Back in July 2010, I called UKBA phone line twice just to confirm whether I could apply for the PR using EEA4. I told them specifically that I have not been married for 5 years (we got married in Aug 07) but we have been living together and working in UK for continouously 5 years (all can be supported by evidences).

I was assured by 2 different advisors from UKBA phone line that I can apply PR using EEA4 as long as we have been living together for 5 years. So I applied......

On 20th Nov, I got the refusal letter......the reason for refusal is simply because I have not been married to my husband for 5 years......they just looked at my marriage certificate and refused me....

What can I do now? Appeal? or make a new application using EEA2 for residence card? I called the phone line again and the advisor told me to appeal and not to make any other applications.....

I don't want to lose my job which I had for 5 years after 20th Dec, more importantly I have a 1 year old baby......the refusal letter ask me to leave the country after 20th Dec otherwise will enforce me to leave....but I am an EEA family member, I have the right to stay here....

Please please someone has the similar experience help me!

[ys704]

just to add that I am a non-EEA national.

[ys704]

I've only got 1 week left for the appeal, I have to make the decision quickly and accurately!!

So please any help?

[Monifé]

I am not sure about applying for PR but why don't you apply for a residence card (EEA2)?

That will give you 5 years visa and you will be able to apply for naturalisation soon.

You are definitely entitled to EEA2 provided your wife is exercising treaty rights (working, self-employed, student with health insurance or self-sufficient with health insurance).

[ys704]

Hi Monife, if the advisor told me in July I was not eligible for EEA4, I would definitely go for EEA2 and then would not have the emergency now...

My husband has been working here for 5 years so denifitely I can get EEA2 if I apply.

The question is now can I apply for EEA2 straightaway? I am worried I won't receive the COA on time before 20th Dec, therefore my eomployer can not hire me legally.

And also if I appeal against EEA4, can I apply for EEA2 at the same time?

And also I am travelling to Europe with my family on 14th Dec for Xmas holidays therefore cannot send our passports to UKBA, if I just send copies of passports for EEA2, do you think they will accpet it and issue me COA?

So many questions in my head......thanks very much for replying.

[86ti]

I fail to see the emergency here. Your employer can still legally employ you. You can apply for a residence card right away but you may not get the CoA before the 20th. They will not accept the application without the passports.

[ys704]

Hi 86ti, thanks for your reply.

What do you mean my employer can still legally employ me? even after 20th Dec and even if i can't produce the COA?

Do you mean they can still employ me if I am appealing?

I have read people's story before saying they just posted their passport copies first and received COA. They wrote a cover letter explaining why can't submit original. So I suppse I can do the same?

[86ti]

I must have said that a million times by now: your rights derive solely from your marriage to an EEA national who is exercising treaty rights or a permanent resident (your spouse obviously is), and not a particular document. The order to leave the country is utter nonsense and the dumb case worker should have seen this (I assume you sent them all work related documents from your spouse).

Read the official UKBA webpage for guidance: make application, ask for passport back. Of course, you can try the cover letter approach but don't be surprised if it doesn't work out.

[ys704]

Hi 86ti, I have read that page for many times. In fact, I have learned so much about the EU laws/regulations since I got the refusal!

However when I read about the rules for employer, it seems like the company has to have sort of documents (like COA or PR or Residence card in the passport).

I know by marrying to my EU husband, i have the right to work and live in UK, but my company need something from me to show that they can employ me?

More importantly, do I have to be married for 5 years to apply for EEA4? we have been residing together for 5years in UK.

[86ti]

You will have to talk to your company and explain them EEA regulations and Article 25 of Directive 2004/38/EC if they do not know that already. You are under no obligations to apply for any documentations as should have been clear to you from the web page you say you have read so many times.

The problem with unmarried partners is that they are not considered family members until they have proven to be in a durable relationship. We had discussions regarding this issue here so try and search for those threads.

[ys704]

Hi 86ti, thanks very much for replying my posts.

However re your comments in the other post and John's reply saying UKBA could fight aginst my appeal as my relationship to my husband is debateable, i.e. we have not married for 5 years but lived together for 5 years.

However I have seen the regulations saying to apply for EEA2, you don't have to be married, just in a durable relationship and after 5 years you have RC, you should get PR with no problem.

So my situation is really I didn't apply for EEA2, went straight to EEA4, but the fact is we have been living together for 5 years!!! and why UKBA told me in July that I could apply for EEA4?? even by 2 different advisors!!

[86ti]

For a durable relationship the UKBA typically expects two years of cohabitation. In hindsight that may be obvious now but in the eye of the UKBA it was not for the time five years ago which you claim to be the start of your five years period. You can only appeal and wait for the outcome.

Their telephone service is mostly useless and I wouldn't rely on anything they say.

[ys704]

86ti, I have decided to appeal now, do I have to have a solicitor to help me with the appeal? or I can just do it myself, i.e. post all the documents to the first tier tribunal?

[ys704]

Does anyone know while my appeal is pending, is the COA letter for my employer still valid, i.e. they can still hire me legally as long as the appeal is going on?

I have confirmed this with the UKBA phone line. But I don't trust them anymore.......

[ys704]

final question today, what is the difference between paper appeal and court appeal? would it make a difference?

My understanding is if court appeal, you might need a lawyer to defend you. so if paper appeal, no need for a lawyer?

My husband is temptated to do the appeal ourselves.

[alejandrouk]

Hi,
The kind of evidence that you provided as a proof of cohabiting before your marriage might have been also an issue if it was insufficient. What kind evidence did you send?

[ys704]

I don't think they've actually reviewed my evidence....they only looked at the date I got married.

We provided: last 5 year's rent agreements (with both name), 5 yrs joint council tax bills, 4 yrs joint bank statements with additional 1 yr's seperate bank statements, marriage certificate, my husband's 5 yr's P60, latest employer's letter and last 3 mth's wage slips.

[ys704]

Hi Everyone, i just wanted to post a quick update on my EEA4 application back in Nov 2010.

I got rejected in Nov 2010 (applied in June 2010).
Decided to appeal in January.
Got the hearing notice letter in Feb for the paper hearing taking place in sometime Feb 2011.
A week after the paper hearing, I got the letter saying my appeal was successful.
April time I got the 10 year PR in my passport (but had to fax the homeoffice to chase for the visa issue).

Basically the whole story is I have been living with my husband for 5 years but only married for 3.5 years. The judge allowed the appeal, it seemed like a straight forward case for him.

good luck to everyone else and thanks again for the useful advise.

[dasjoker]

Hi Everyone, i just wanted to post a quick update on my EEA4 application back in Nov 2010.

I got rejected in Nov 2010 (applied in June 2010).
Decided to appeal in January.
Got the hearing notice letter in Feb for the paper hearing taking place in sometime Feb 2011.
A week after the paper hearing, I got the letter saying my appeal was successful.
April time I got the 10 year PR in my passport (but had to fax the homeoffice to chase for the visa issue).

Basically the whole story is I have been living with my husband for 5 years but only married for 3.5 years. The judge allowed the appeal, it seemed like a straight forward case for him.

good luck to everyone else and thanks again for the useful advise.

congratulations..

[Directive/2004/38/EC]

A week after the paper hearing, I got the letter saying my appeal was successful.

Why did the immigration judge grant your appeal? Did he explain?

[spike_UK]

Hi
ys704, Directive, can u please help I have a kind of same situation:
I married my EEA on 11/2008 and had my RC 07/2009 (which both r less than 5 yrs) but we been living together for over 5yrs and I spoked to different HO staff and they said that I can apply for PR based on 5 yrs resident together, but before the marriage I didnt have any work visa or something.
Now I have already applied for PR, what do u think?

[Directive/2004/38/EC]

Now I have already applied for PR, what do u think?

I think you will have to be patient. And tell us how it went when you hear back!