EEA unmarried partner visa refused..has anybody reapplied?

[lannalondon1]

Hi my EEA unmarried partner visa was rejected. I proved that I lived with my partner for 4 years and he is self employed. He became self employed on the month of my application. While I didnt present bank statements proving that he receives money to his account I did send an original contract from his client stating the amount of monthly income that he is receiving, registration from the company house, accountant letter etc. They rejected me because I didn't send the bank statement proving trading of his company (as if they couldn't have sent me a letter requesting additional document). My lawyer advised me to reapply just attaching bank statements proving that his company is trading (receiving money every month) and she explained that legally HO has no right to refuse me this time as I proved that my partner is exercising the Treaty right.

However my visa (PSW) has expired and my lawyer convinced me that despite that I have the right to live and work in the UK and that right is given to me by living with EU partner who is exercising the Treaty right. Do you think that now after I reapplied I won't have to wait for full 6 months to get my passport back? Does anyone have similar experiences, please share. Thanks so much

[Obie]

Your Solicitor is wrong. As an unmarried partner, you only have rights once the Residence Card has been issued. Your right is not automatic, it is subject to an Extensive Examination of your personal Circumstance.

I believe if that is the only issue, then you could appeal. An appeal takes shorter time to process than a Residence Card, and on the face of things, they should have request further documentation. So long as you provided sufficient evidence, bank statement should not have been an issue.

[lannalondon1]

Really- what am I going to do now?! I paid a lot of money to solicitor who in writing explained that I have right to live and work in the UK despite being rejected and with no permit valid as HO decision is not considered as an implementation of the European Law. Its just their decision that could be appealed or proven wrong especially considering that HO is full of untrained young staff whose decisions are easily overthrown in the appeal process. She advised against appealing as I my partner has received a first payment to his account on 24th February while I applied on 22nd. He has signed the contract with his client on 1st of February which was legally binding from that day but my solicitor said that since he hasn't received funds before the day of my application that I shouldn't appeal but reapply. Which I did, a month ago through my lawyer and she said that I should expect COA in next week or so. What shall I do now? I don't want to be having problems with Law and be illegally in the country:

[Jambo]

It is not nice to call the HO untrained young staff when it seems that your (expensive?) solicitor could also brush up on her own knowledge.

You can ask for your passport back at any stage and it will not affect your application. If I were you I would have addressed the application to the case worker who refused it with reference to my previous application. That way you might skip the backlog. You might need to wait again in any case.

For unmarried partners, CoA will normally not include permission to work.

[lannalondon1]

Thank you. When it comes to efficiency of HO employees, I have to agree with my solicitor. I called number of times after 6 months expired and not receiving my application back thretening legal action and when I have been told that my application was rejected and that I should leave asap I called HO asking what asap means since they didnt send me my passport back so I clearly couldnt leave asap without the passport. I spoke to 4 HO employees none of them couldnt provide me with a right answer about when I should leave. Also before my application was sent back to me I spoke to 3 different workers in HO all of which gave me a different information as per when my application was posted back to me. They almost made me press charges against the Royal Mail, I will ask for a legal advise from another solicitor now when you kindly gave me your thoughts.Although may I ask you Jambo are you a lawyer just so I could make a reference when writing to my lawyer explaining her where did I find out this information and I want to sound serious? Thanks

[Obie]

Notwithstanding the views i expressed in this post, and the fact that the OP in that post succeeded in getting a COA with a right to work, i feel the subject is not clear court, although other provision of community law can be used to challenge it.

[Jambo]

I'm not a lawyer (and I hope no one thinks my advice is a professional advice).

I suggest you read the relevant legislation - Regulation 8(5) and Regulation 7(3). Also have a read at 5.1.3.

[Englandd]

yes it is correct that unless getting EEA2 RC or atleast getting your COA your stay is not totally legal in contrary of married partner situation in which applying EEA2 is optional because non-eea national's rights are extracted from his/her EEA national's activities.
If you want to re-apply/retry then better to become self sufficient because becoming self employed just 1 month before of your application and being unable to show business bank statements showing trading is not appropriate. Hope it will work you.

[lannalondon1]

Obie, thank you for your effort to help replying to this post but Im not sure what do you want to say with your last comment, would you mind specifying? I am now immensely stressed out. I was ready to leave the country, appeal do absolutely anything as long as it is legal and now I am finding out that I could possibly be living and working illegally in the UK??!! I suppose its my fault as I unreservedly trusted a lawyer who was convincing me that my case is extremely simple and that I should simply re-apply. I did that month ago, my visa was declined 21st August, I am now waiting for COB of a new application that was re-submitted by my lawyer or for an immigration lawyer to knock on my doors. This is frustrating as I have a career I did my MA, Phd here, I spent 5 years and lots of money in the UK and my future could be jeopardised if you guys are right and HO rejects me again and treats me as an overstayer!! I really don't know what to do now. Shall I wait to hear from HO or shall I call them first? Luckily I have all correspondence with lawyer in writing. Please comment what do you think is a right think to do. Thanks a lot.
P.S Englarand- my partner didn't just register as self employed at month of my application, just for the sake of it, he lived in the UK for 5 years and was constantly employed (i sent a proof of it, payslips etc) he just moved to be self employed as he got a better job offer and it happened to be in a month of my application

[EUsmileWEallsmile]

There are a few issues at play here and it might help to separate them.

1. Is the EU national exercising treaty rights? This appears to be the reason for the rejection. Your last post appears to suggest that the EU national has been self-employed for some time. You could provide stronger evidence.

2. Is the EU national an article 2 family member. No, but may still benefit under article 3 of the directive.

3. Has the HO recognised that you are an article 3.2.b family member? This does not appear to have been challenged by the HO, nor perhaps recognised either. Does the rejection letter say anything about this?

[Englandd]

Based on your more clarified post your case looks better than the situation you primarily mentioned subject to how strong your relationship proofs are? Just keep in mind too your EEA national partner can also apply for PR too if he has been working for the last 5 years.

[EUsmileWEallsmile]

he lived in the UK for 5 years and was constantly employed (i sent a proof of it, payslips etc) he just moved to be self employed as he got a better job offer and it happened to be in a month of my application

Sounds like he has PR already then.

[lannalondon1]

Hi,

EU national is exercising the Treaty right as a self employed. In new application we sent bank statements with highlighted income coming from his client's account each month. Also we attached the contract between my partner and that client and all invoices. In previous application I failed to send bank statements and invoices but I did send all company registration documents and contract between client and my partner.

My app was refused for not being able to prove that my partner is paying taxes(I couldn't have as he is in the first year of trading) and that his company is trading (I didn't send bank statements). I attached proofs of that in a new application. HO didn't question our relationship. This might be because we've lived at the same property in London for 4 years and we sent all bills, contracts for each month of the past 4 years. We studied together in the UK and even sent our diplomas.

Rejection letter says that I am declined as they don't have enough evidence that my partner is exercising the Treaty right such as: proof that he is paying taxes; Proof that his company is trading.

Solicitor said that after sending bank statements and invoices I should be fine. But reading comments above I am now freaked out

[Obie]

There is no need for you to get freaked out. Nothing , anyone has said should make you feel that way. Your application may very well succeed. I see no reason that will merit a refusal of your application, even though the issuing of Residence Card to Extended family is a matter of discretion. I am confident that the discretion will be exercised in your favour.

What i suspect people were conveying to you is that your solicitor is wrong to say you have a right to work when a positive decision is yet to be made on your application. The other thing is, no one can cay your application will be concluded in the next month, as that will be misleading.

You should stay calm and not worry. You have provided the evidence, i would have suggested appealing, as the reason for refusal was outrageous. I don't have issues with you reapplying. Just stay calm, and i am sure with the next 3 months you may receive a positive result.

[lannalondon1]

Thanks Obie,

I hope you are right

[EUsmileWEallsmile]

he lived in the UK for 5 years and was constantly employed (i sent a proof of it, payslips etc) he just moved to be self employed as he got a better job offer and it happened to be in a month of my application

Sounds like he has PR already then.

This is very important. If you EEA national partner has permanent residence already (PR), he does not have to prove that he is self-employed.

This would make your application much simpler indeed.

PR happens automatically having lived in a member state in general for five years while complying with article 7 of dir 2004/38/EC.

[EUsmileWEallsmile]

HO didn't question our relationship. This might be because we've lived at the same property in London for 4 years and we sent all bills, contracts for each month of the past 4 years. We studied together in the UK and even sent our diplomas.

Did the acknowledge this in any way? If they did (and perhaps by default they have), then your solicitor's point might not be in error. Perhaps you should ask your solicitor why they've come to the view they've taken.

In general, other family members do not automatically benefit from the directive (unlike spouses, children, dependent children and parents). The member state shall "facilitate entry and residency" of other family members. Once recognised as being a beneficiary, the family member can avail of the terms of the directive.