EEA EFM (Durable Partner) Refusal, Help

[eggsontoast]

My EEA EFM application as a durable partner to an EU national has been refused. My background is that we were both students studying at the same Uni. I made the application with copious amounts of evidence putting us at the same address, and since my partner was recently employed (at the time of application) I was able to provide payslips to support the fact that she was exercising treaty rights.

The Home Office gave the following reasons:

1) Evidence that you have been residing with EEA national indicates that you were sharing accommodation as fellow students rather than as a couple in a durable relationship.

2) Claimed absence from UK visiting Sponsor's family, but no evidence of travel together or holidays together.

3) Sought further leave to remain as student for an additional year when it is claimed you were already in a durable relationship.

This is despite the fact that I have tenancy agreements in joint names spanning 3 years, and our current tenancy agreement (in another City) is also in joint names even after we have graduated.I sought a tier 4 as it was easier and more straightforward than applying for EEAEFM for doing my postgraduate, but they have interpreted it against my EEAEFM application.

I understand that the best course of action would be to make another application and provide travel and holiday evidence, but can anyone provide advice on:

1) What else I should provide?
2) How long I have to make this new application?
3) Am I just making a renewed EEA EFM application on the same form?
4) What I should write in the covering letter to dispute these assertions made by Home Office?

Thank you for your time, and help.

[kamoe]

1) What else I should provide?

Read this post, where I summarize what I believe was the secret of my success story aplying for EFM RC as unmarried partner.

2) How long I have to make this new application?

Assuming you mean for how long the EEA route will stay open, I'm not sure. No cut-off dates have been published so far. Definitely will happen somewhere in 2020, as RC will be valid until 31st December 2020, but I personally believe it is not unreasonable that it stops on Brexit date sharp.

3) Am I just making a renewed EEA EFM application on the same form?

Not sure what exactly you mean here, but basically you would need to make a new application from scratch, same thing you did last time.

4) What I should write in the covering letter to dispute these assertions made by Home Office?

The truth. Just be concise and to the point.

[eggsontoast]

Thank you for your response, question 2) was about how much time I would have before submitting a renewed application, since my current visa is expired.

I understand that I have a 14-day window to appeal the decision, would that 14-day window also apply towards new applications? My visa had expired before my first application as well, but I was able to link it to my pending EU settlement scheme application. The Settlement scheme application is still pending (receipt of a residence card which is what this application is for), so would it still be OK for me to list that as a reason?

[kamoe]

My visa had expired before my first application as well

Then I'm afraid you have been an overstayer since. You are not covered by any EU family rights, since these will only start the moment your residence card is issued.

but I was able to link it to my pending EU settlement scheme application.

To link what to your settlement application?

The Settlement scheme application is still pending (receipt of a residence card which is what this application is for),

No point in starting any EU settlement application before you actually have a residence card, as you can see, this will not progress until you have the card.

so would it still be OK for me to list that as a reason?

To list what as a reason?

[eggsontoast]

1) Linking my EEA EFM application to my EU settlement scheme application, which is in turn linked to my sponsor's EU settlement scheme application, which is already approved.

2) My EU settlement scheme application is still pending receipt of a residence card (yes I understand this is a catch 22)

3) The reason as to why I'm not an overstayer. I used 1) and 2) to justify why I'm not an overstayer in this EEAEFM application. The caseworker made no mention of my being an overstayer in the refusal letter, I would assume I can still continue to list this as a justification for not overstaying in this new application?

4) I've read your forum post, which is very helpful. I won't have time to setup a joint bank account, but I did not include any photographs, which I will do in this new application.

[CR001]

You are an overstayed from the date your tier 4 visa expired. Section 3C protection under the immigration rules does not apply to extended family member RC apllications.

Unclear when your tier 4 expired and when you submitted the settled scheme (not EEA FM RC) application.

[eggsontoast]

Thanks for the response, timeline is:

1) Sponsor applied for EU settlement scheme (approved)

2) Application linked to mine, I applied for EU settlement scheme (pending - again I understand the Catch 22)

3) Tier 4 expired

4) Applied for RC under EEA EFM, stated (2) as reason for not overstaying

5) Application refused, now needing to reapply for RC under EEA EFM

[kamoe]

1) Linking my EEA EFM application to my EU settlement scheme application

What exactly do you mean by this??? How did you "linked" your applications?

If you just mentioned in your EEA application that you had a pending EUSS application, that accounts to nothing, I'm afraid, the two systems are separate and independent. There is no link between them.

2) My EU settlement scheme application is still pending receipt of a residence card (yes I understand this is a catch 22)

And it will remain as such.

3) The reason as to why I'm not an overstayer. I used 1) and 2) to justify why I'm not an overstayer in this EEAEFM application.

I'm afraid it sounds like the only reason you applied to the euss is to precisely claim that you are protected by seciton 3D, which makes you no good.

The caseworker made no mention of my being an overstayer in the refusal letter

They likely did not mention it because it is not impossible to be granted a residence card after being an overstayer. It it not a position you want to put yourself into intentionally, but it is not necessarily a reason for refusal. Furthermore, since there are other actual reasons for refusal it is understandable that the case worker just focused on those. Bottomline is, a refusal letter is an templated letter that is filled only with the relevant informaiton on why an application has been refused. Nothing more.

That being said, the case worker not having mentioned you are an overstayer does not mean you can take that omission to conclude you are not an overstayer.

I would assume I can still continue to list this as a justification for not overstaying in this new application?

On the contrary, it is not unreasonable to believe the caseworker will see your euss application purely as a strategy to claim you are not an overstayer. Without a residence card, you simply don't qualify for the euss (the applicaiton itself will be either declared invalid, be refused, or will be pending forever).

Also, bear in mind that (page 6 of 26 here):

Invalid applications
An invalid application does not extend leave under section 3C

So you might not covered by 3C leave if your euss pending application ends up being rejected as invalid (which might very well end up being the case on ineligibility/unstuiability grounds).

4) I've read your forum post, which is very helpful. I won't have time to setup a joint bank account, but I did not include any photographs, which I will do in this new application.

In your situation, and having read the reasons for refusal, stronger proofs of your relationship will be pieces of correspondence addressed to the both of you as a couple.

But having said all the above, I believe this is not what you need to be focusing on at the moment.

[eggsontoast]

I'm afraid it sounds like the only reason you applied to the EU Settlement Scheme is to precisely claim that you are protected by seciton 3D, which makes you no good.

Actually I did not apply for the EU settlement scheme opportunistically, I thought I could get it and did not realise I needed a RC to begin with.

What exactly do you mean by this??? How did you "linked" your applications?

3.11 Do you currently have any other applications with the Home Office on which you are
awaiting a decision? (I put the application number for the EU scheme here)

But having said all the above, I believe this is not what you need to be focusing on at the moment.

Please tell me what I should focus on, you can understand I'm quite anxious about the situation currently.

[kamoe]

I'm afraid it sounds like the only reason you applied to the EU Settlement Scheme is to precisely claim that you are protected by seciton 3D, which makes you no good.

Actually I did not apply for the EU settlement scheme opportunistically, I thought I could get it and did not realise I needed a RC to begin with.

Fair enough. Sadly, you need to keep in mind your own experience: The Home Office already used your previous Tier 4 application to interpret your EEA application was opportunistic, so the more chances they will see your euss application in the same light, I'm afraid.

BTW a Tier 4 application will always be more difficult and expensive than the EEA route. Hence I kind of agree with the caseworker here, and ask the question, why did you not apply for the EEA route as soon as you were eligible???

What exactly do you mean by this??? How did you "linked" your applications?

3.11 Do you currently have any other applications with the Home Office on which you are
awaiting a decision? (I put the application number for the EU scheme here)

Well, yes, anyone can do that. You can write anything you want on your application form. That does not mean you have updated the legality of your status any further, hence why your sentence was confusing, implying you had achieved an upgrade of sorts(?), when in reality you just filled a form: "My visa had expired before my first application as well, but I was able to link it to my pending EU settlement scheme application."

But having said all the above, I believe this is not what you need to be focusing on at the moment.

Please tell me what I should focus on, you can understand I'm quite anxious about the situation currently.

Simply said, it does sound like you will find difficulties if you a) stay much longer in the in the UK as a likely overstayer and b) keep applying for an unmarried partner route. It is not unreasonable to think you should focus on solutions/alternatives to both of those situations.

[eggsontoast]

BTW a Tier 4 application will always be more difficult and expensive than the EEA route. Hence I kind of agree with the caseworker here, and ask the question, why did you not apply for the EEA route as soon as you were eligible???

I'm from a commonwealth country, so for my Tier 4 renewal I only had to provide my passport, CAS statement, and Biometrics. Basically an abridged application, I dont remember what rule this is under but I was allowed to avoid making a full tier 4 application. It was costlier, but I honestly did not think it would prejudice my rights to apply for an EEA EFM.

Simply said, it does sound like you will find difficulties if you a) stay much longer in the in the UK as a likely overstayer and b) keep applying for an unmarried partner route. It is not unreasonable to think you should focus on solutions/alternatives to both of those situations.

We are not opposed to getting married, do you think this is possible?

[kamoe]

BTW a Tier 4 application will always be more difficult and expensive than the EEA route. Hence I kind of agree with the caseworker here, and ask the question, why did you not apply for the EEA route as soon as you were eligible???

I'm from a commonwealth country, so for my Tier 4 renewal I only had to provide my passport, CAS statement, and Biometrics. Basically an abridged application, I dont remember what rule this is under but I was allowed to avoid making a full tier 4 application. It was costlier, but I honestly did not think it would prejudice my rights to apply for an EEA EFM.

Sorry to hear, it does sound like an unexpected blow.

Simply said, it does sound like you will find difficulties if you a) stay much longer in the in the UK as a likely overstayer and b) keep applying for an unmarried partner route. It is not unreasonable to think you should focus on solutions/alternatives to both of those situations.

We are not opposed to getting married, do you think this is possible?

For the possibility of getting married in the UK, I suggest you open a new thread asking that specific question. I cannot comment as I have no first-hand experience myself, but a number of other members might offer some insights.

It will always be easier and simpler for you to get married in your own country, which will make up for a much stronger application the next time you apply. If you go for this route, the simplest thing would be to then apply for a euss family permit for you to get back in the UK, then apply for Pre-settled Status once you are back in.

[eggsontoast]

I have just submitted my re-application with additional evidence to refute the assertion by UKVI that my partner and I are just students, I'll keep this thread updated with the progress of the application.

The additional evidence includes:
1) Personal references from her family and our landlord
2) a timeline of photographs spanning over 3 years
3) flight documents from holidays taken spanning over 2 years

Hopefully this should be enough proof of a durable relationship.

[Richard W]

Section 3C protection under the immigration rules does not apply to extended family member RC apllications.

That is debated, and there don't seem to be any relevant judgements.

[askmeplz82]

I have just submitted my re-application with additional evidence to refute the assertion by UKVI that my partner and I are just students, I'll keep this thread updated with the progress of the application.

The additional evidence includes:
1) Personal references from her family and our landlord
2) a timeline of photographs spanning over 3 years
3) flight documents from holidays taken spanning over 2 years

Hopefully this should be enough proof of a durable relationship.

I would recommend you go to your nearest Council and ask for permission to get married in the UK. It might be not so easy because you don't have any legal residence and Council will send your information to the Home Office

After Marriage on the same day you can apply as a direct family member

remember if you withdraw your application now you can apply again after 70 days