Advice please: EEA4 application refused, lived outside UK.

[o4ktree]

Thank you very much in advance for helping out with this.

I am a non EEA national married to a British citizen. We lived in Ireland before coming to the UK and when we were coming to the UK instead of spouse visa under UK law, we decided to use her treaty right (Surrender Singh case) to come to the UK as entry clearance under the treaty rights is issued much faster. Here is an outline of my case and my questions.

1) Until Aug 2006 we lived in Ireland.

2) I got my entry clearance in Aug 2006 and we moved to the UK and I applied for my residency card as the family member of an EEA national. I received it in May 2007 and it was valid for 5 years until May 2012. I was in university during this period and my wife was working.

3) I was accepted into an exchange program as part of my university studies to go the USA. My wife and I moved to the USA from Aug 2008 to June 2009. We came back to the UK using my EEA residency card which was valid until May 2012. She got a job soon after we came back.

4) In May this year, I applied for the evidence of my permanent residence under the EU treaty to the Home office. I was aware that my wife and I have had to lived in the UK for a continuous period of 5 years. But I also read in the guidance leaflet that "A single absence of a maximum of 12 months for important reasons such as pregnancy, childbirth, serious illness, study, vocational training or posting overseas will not affect your residence". As I was a student I assumed that our residency was not affected by our absence. I received a letter from home office this week refusing to issue me a permanent residence card as we have not lived in the UK for a continuous period of 5 years (stating that we lived in the USA for less than a year). They have also kept my passport and say that I have no further basis of stay in the UK. I am still married and my wife is working.

Were they right to refuse to issue me a permanent residence card and keep my passport? How about the fact that I was outside of the UK as a student and it should have not affected our residence?

If I appeal against their decision do I need to pay? How likely is it that I will succeed?

Can I apply to stay in the UK as the spouse of a UK national without leaving the UK?

Can I apply as a family member of an EEA national as I did before?

What is the best choice?

Thank you very much.

[sum1]

I guess the UKBA operates here on the notion that the 12 months absence outside the EEA broke your wife's residence and thus invalidated your Surinder Singh derived claim to EEA rights. This would explain why they say that you have no further right to stay.

I do not know why the did not accept the longer absence. Can you post the complete wording of the refusal letter?

[Obie]

I think this is quite a wrong decision. The UK cannot simply remove the Surinder Sing right. Once those rights have been exercised, they cannot be extinguised by an absence.

The fact will alway remain that the wife had resided in another memberstate, and has a result her circumstance will not be considered as purely internal.

I hope you have been given a right of appeal?

The whole of the directive and EEA regulations are applicable to you as a result of Surinder singh and the provision made in regulation 9 to give it effect.

[sum1]

There is at least one member state believing that those rights vanish over time. But even if that's the current opinion of the UKBA why was the absence not accepted as one of important reasons?

[o4ktree]

I have been given the right to appeal.

The Notice of immigration decision says:

You have applied for permanent residence on the basis that you are the family member of and EEA national and that you have have resided in the UK with that EEA national in accordance with EU law for a continuous period of 5 years. However, you have not provided evidence that that EEA national resided in the UK in accordance with EEA regulations during that 5 year period.

You do not have a basis of stay in the UK under the immigration (EEA) regulation 2006.

You are entitled to appeal against this decision under section 82 of the Nationality Immigration and Asylum act 2002 and Regulation 26 of the Immigration (EEA) regulation 2006.

The appeal must be made on one or more of the following grounds:
...

Here is the exact wording of the reasons for refusal letter:

In order to qualify for permanent residence here in the UK as the family member of an EEA national/British national you must have been living in accordance with the EEA regulation 2006 for a continuous period of 5 years here in the UK.

From the evidence you have provided and in your covering letter you stated that you and your spouse moved to the UK on 29th of Aug 2006 and then you traveled to the USA in Aug 2008 until July 2009 as you were involved in an exchange program within your course.

As you moved and lived in the USA for a year this period of time outside the UK does not count towards the continuous period of 5 years you need to qualify. You have not live in the UK for a continuous period for 5 years in accordance with the EEA regulation 2006 and therefor you do not qualify at this time for permanent residence on this basis.

therefor it has been decided to refuse to issue the confirmation that you seek with reference to the regulation 15(1)(b) of the Immigration (European Economic Area) regulation 2006.

As you appear to have no alternative basis of stay in the UK you should now make arrangements to leave the UK. If you fail to do so voluntarily you departure may be enforced.

[sum1]

I just wonder if the importance of the study abroad was expected to be seen in a larger educational context.

Was this course part of ongoing studies? Are you still studying in that field or have finished a degree in it? Have you communicated this in your application? Have you included any evidence of the courses you made?

[o4ktree]

It was the fourth year of a degree course. It was an exchange program and the home office knows that.

I did mention that It was for the fourth year of a degree course and I sent letters explaining that.

I would like to appeal.
Several questions that people might know the answer to:

1) Do I need to pay for the appeal? (EEA applications are usually free)

2) Based on their own guidance leaflet, my residency should have not been affected as I was in the USA for study. That would be my main reason to appeal and that their decision is not in accordance with immigration rules. Is that a good enough reason?

Do I need a lawyer? Can I just represent myself?

Thank you very much.

[fysicus]

There are two separate issues here.

The first is the question if your (more than 6 but less than 12 months) absence qualifies as an important reason which does not break the continuity of residence.
I don't feel qualified to have an opinion on that, but this question should be decided in an appeal.

However, if it is rejected in the end, the only effect should be to reset the clock for permanent residence (to june 2009) so you can reapply for PR (EEA4) in mid 2014. It should not affect your wife's right of residence under the EEA regulations, and your wife should have received at least a new Residence Card (as if you had submitted an EEA2 application). Appealing against the departure order is in my opinion a very strong case; this will almost certainly be successful.

[tanabrennan]

You are still a family member of an eea, a british who has exercise her treaty right in another eu country, if your residence continuity was brake within those five years you may not be entitle to a permanent residence but you are still entitle to another d 5yrs residence card from the day you came back. This is my advice which i think may work, apply for a fresh residence card as a family member of a british who has exercise treaty right in another eu country and also further your appeal for the permanent residence, you cannot lose in both way. You wife right still remain as a british citizen who has exercise treay right in another eu and a brake in the continuity will never end this treaty. State this in your new application one way or the other by 2014 you will be entitle to a permanent residence. HO can try anything to take away your right from you.

[sum1]

ad 1) I think you'll have to pay, see this discussion.

ad 2) Section 9 of the EEA regulations 2006. You also need to ensure that your reason of absence will be seen as important.

Self-representation may be possible but maybe you want to consult a solictor first for some initial assessment?

[o4ktree]

I think I can convince them that my reason to be in the USA was important. How about my wife though? We went to the USA together and she was doing voluntary work while i was a student.
Would they accept she had an important reason to go to the USA namely for us as a family to be together (our wish to continue our family life should be respected under article 8 of ECHR)?

Thanks a lot.

[sum1]

Good question! I think the EEA regulations do not specify that the absence is limited to the person with the important reason.

[EUsmileWEallsmile]

I have been given the right to appeal.

The Notice of immigration decision says:

You have applied for permanent residence on the basis that you are the family member of and EEA national and that you have have resided in the UK with that EEA national in accordance with EU law for a continuous period of 5 years. However, you have not provided evidence that that EEA national resided in the UK in accordance with EEA regulations during that 5 year period.

You do not have a basis of stay in the UK under the immigration (EEA) regulation 2006.

You are entitled to appeal against this decision under section 82 of the Nationality Immigration and Asylum act 2002 and Regulation 26 of the Immigration (EEA) regulation 2006.

The appeal must be made on one or more of the following grounds:
...

Here is the exact wording of the reasons for refusal letter:

In order to qualify for permanent residence here in the UK as the family member of an EEA national/British national you must have been living in accordance with the EEA regulation 2006 for a continuous period of 5 years here in the UK.

From the evidence you have provided and in your covering letter you stated that you and your spouse moved to the UK on 29th of Aug 2006 and then you traveled to the USA in Aug 2008 until July 2009 as you were involved in an exchange program within your course.

As you moved and lived in the USA for a year this period of time outside the UK does not count towards the continuous period of 5 years you need to qualify. You have not live in the UK for a continuous period for 5 years in accordance with the EEA regulation 2006 and therefor you do not qualify at this time for permanent residence on this basis.

therefor it has been decided to refuse to issue the confirmation that you seek with reference to the regulation 15(1)(b) of the Immigration (European Economic Area) regulation 2006.

As you appear to have no alternative basis of stay in the UK you should now make arrangements to leave the UK. If you fail to do so voluntarily you departure may be enforced.

It would appear that this decision was made by someone who read article 15 and nothing else.

15.1.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;

But, living in accordance with the regulations means living in accordance with the regulations.

It would appear that regulation 3.2.c was overlooked.

Continuity of residence is not affected by:
any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting.

COMPLAIN.

[EUsmileWEallsmile]

It was the fourth year of a degree course. It was an exchange program and the home office knows that.

I did mention that It was for the fourth year of a degree course and I sent letters explaining that.

Sounds important to me...

[o4ktree]

to EUsmileWEallsmile:

By COMPLAIN, you mean appeal against their decision?

Is there any other way I could get the UKBA decision changed?

How about if I write a letter to the UKBA and tell them that they have made a mistake and should review their decision and state my important reason and the relevant regulations, is it likely that they would change their decision?

Thanks

[EUsmileWEallsmile]

How about if I write a letter to the UKBA and tell them that they have made a mistake and should review their decision and state my important reason and the relevant regulations, is it likely that they would change their decision?

Thanks

This is pretty much what I mean by complain. The invitation to complain is on EEA4 form.

[o4ktree]

This is pretty much what I mean by complain. The invitation to complain is on EEA4 form.

I had a look on the UKBA website and they say that the only way to complain about a decision made is to appeal.

I think I will send a letter to the UKBA and explain the situation. I will also appeal and see what happens.

[Jambo]

Address the letter to the CW who refused your application and ask for reconsideration of your application and explain why you believe he has made a mistake. Hopefully, the CW would realise that and re-assess you application without the need for an appeal.

[EUsmileWEallsmile]

This is pretty much what I mean by complain. The invitation to complain is on EEA4 form.

I had a look on the UKBA website and they say that the only way to complain about a decision made is to appeal.

I think I will send a letter to the UKBA and explain the situation. I will also appeal and see what happens.

It is also possible to reapply, but you'd be back to the end of the queue. Suggest you consider Jambo's advice.

[o4ktree]

Hello everyone,

I appealed against the UKBA decision and received the hearing date, which is 5th of Dec. I am going to represent myself in the court, as I cannot afford the cost of the lawyer and the barrister.

Here are what I think legally might be argued as reasons for refusal:
1) my reason to go to the USA was not important.
2) my wife reason for going to the USA was not important.
3) Our 11 month stay in the USA, broke my wife's residence and invalidated her Surrinder Singh derived claim to EEA right.

Here are my answers to the above reasons:
1) Immigration (EEA) regulation 2006, regulation 3.2.c states that: "Continuity of residence is not affected by:
any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting". As my absence from the UK was for an exchange program as part of a university degree, it should be seen as an important reason. I will provide a letter from the university indicating that the exchange program was an important part of my course.

2) My wife and I went to the USA together, as we wished to live as a family. Her accompanying me to the USA should be seen as an important reason because under the European Convention on Human Rights, article 8, the right to family life should be respected.

3) My wife exercised her right to free movement in going to Ireland and working there. Her Surrinder Singh derived right cannot be extinguished by an absence from the UK. I am not sure if this really holds and if there is any source that I can refer the court to?




I have another question that I would like to ask: In the notice of hearing, there is a paragraph that states: "A bundle of all documents to be relied on at the hearing must be sent to the Tribunals and the respondent."

Does this mean, sending them copies of UK and EU laws that are relevant and highlighting the sections that are related to my case?


Many thanks for all your help.

[nahmed]

Hi o4ktree,

Can you please update the outcome of your appeal when you get a chance.

Hello everyone,

I appealed against the UKBA decision and received the hearing date, which is 5th of Dec. I am going to represent myself in the court, as I cannot afford the cost of the lawyer and the barrister.

Here are what I think legally might be argued as reasons for refusal:
1) my reason to go to the USA was not important.
2) my wife reason for going to the USA was not important.
3) Our 11 month stay in the USA, broke my wife's residence and invalidated her Surrinder Singh derived claim to EEA right.

Here are my answers to the above reasons:
1) Immigration (EEA) regulation 2006, regulation 3.2.c states that: "Continuity of residence is not affected by:
any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting". As my absence from the UK was for an exchange program as part of a university degree, it should be seen as an important reason. I will provide a letter from the university indicating that the exchange program was an important part of my course.

2) My wife and I went to the USA together, as we wished to live as a family. Her accompanying me to the USA should be seen as an important reason because under the European Convention on Human Rights, article 8, the right to family life should be respected.

3) My wife exercised her right to free movement in going to Ireland and working there. Her Surrinder Singh derived right cannot be extinguished by an absence from the UK. I am not sure if this really holds and if there is any source that I can refer the court to?




I have another question that I would like to ask: In the notice of hearing, there is a paragraph that states: "A bundle of all documents to be relied on at the hearing must be sent to the Tribunals and the respondent."

Does this mean, sending them copies of UK and EU laws that are relevant and highlighting the sections that are related to my case?


Many thanks for all your help.