EEA3 refused - problem with unemployment

[stanik]

Dear forum!
On 23 of February 2012 I have received refusal (second time) of EEA3 application for Permanent Residence in United Kingdom (please see refusal letter below). The main reason is that I get Job seeker allowance benefits in UK for more than 6 months.. - as I know person is continuing to be treated as Worker even if Jobseeker for more that 6 months if worked in UK for more than 1 year! Since 2006 I worked 3.5 years! Also I did some job in 2004 and 2005, but didn't include this to my application as Home Office requires 5 continuous years.
I became involuntary unemployed in January 2010.

Yes, I still searching for job. But why Home Office doesn't treat be as Worker if I worked more that 1 year.

REASON FOR REFUSAL LETTER

Dear Mr

To qualify for the grant of Permanent Residence, evidence must be provided confirming the identity the EEA national and that Treaty Rights have been exercised in accordance with the Immigration (EEA) Regulations 2006 for a continuous 5 year period.

In support of your application you submitted you passport, payslips, Job Centre plus letter dated 12/01/20012, employers letters, evidence of job applications, WRS Registration Card and 3 WRS Registration Certificates. This evidence confirms that you were in employment between August 2006 and January 2010. This evidence is insufficient to demonstrate that you have exercised Treaty Rights in the United Kingdom for the period for the 5 year qualifying period.

You have also supplied a letter from Job Centre plus dated 12th January 2012 regarding the rate of Jobseekers Allowance you have been receiving since 11 January 2010. As outlined under Regulation 6(2) of the Immigration (EEA) Regulations 2006, a jobseeker id defined as a person who has been unemployed for no more than 6 months. Your unemployment has lasted over 2 years and you have demonstrated that you are claming job seekers allowance. However you have failed to demonstrate that you are seeking employment in the United Kingdom with a realistic prospect of being engaged. Nor have you demonstrated shorter period of temporary employment during this period.

You have therefore failed to provide evidence that you are qualified person as defined under the 2006 Regulations and it has been decided to refuse to issue the confirmation you seek with reference to Regulation 15 (1) (a) of the Immigration (EEA) Regulations 2006.

In making the decision to refuse your application, consideration has been given to the following:
A) EEA3 Permanent Residence application form
B) Passport
C) Payslips
D) Job Centre plus letter dated 12/01/2012
E) Employers letters x 2
F) Evidence of job applications
G) WRS Registration Card
H) WRS Registration Certificate x 3

As an EEA national you are not required to leave the United Kingdom as a result of this decision.


Please advise what can I do? I gave Home Office list of all my job applications during 2 years periods.
I'm going to appeal. And what can help me to win the case?

[Obie]

The decision may be correct going by the regulations 6(2b)


However there is a clear difference between Article 7(3b &3c) which is not reflected in the regulation.

I believe the regulation is therefore more restrictive and can be challenged in court.

It will help if you can compile evidence to show you have been actively seeking work over the last 2 years, rather than simply signing as Jobseeker.

Any course you took over this period could help too.

[stanik]

Thanks for reply Obie!

I provided evidence of all job applications during this period! Plus I have Diploma and good work experience in UK!
I believe that Home Office can't keep telling why I didn't take temp job.. if I'm looking for any job!
I believe that jobseeker is a person who came to UK to seek job and than have to prove chance to be engaged.
I have status as Worker - of course even if I was unemployed more than 6 months I will be able to find job! I still have experience and I'm young enough, plus qualified! Is there any limits in unemployment where you won't be able even to demonstrate a genuine chance of being engaged?

On what grounds can I appeal?

[Obie]

For the purpose of the law, i am not talking of courses undertaken before you cease work in 2010. I am talking of any course undertaken after 2010. If you did do any course, that would be vital to your case.

As i have said before, the directive states that people in your situation should provide evidence they registered at Jobcentre and no more, but the EEA regulations seem to put a time limit on how long you can stay unemployed, which is not reflective in the directive.

You will certainly have to appeal to assert the rights the directive conferred on you which the regulation failed to transpose or transposed restrictively.

You may appeal if you believe the decision breaches your right under the community treaties or secondary legislation.

[stanik]

Please advise, what is the best way to appel Oral or Writing if I don't have a representative?

[Obie]

There is a strong legal issue here. You are seeking to rely directly on the directive as opposed to the EEA regulations. I believe an Oral Hearing will be most appropriate.

This issue is very important, as it could affect your benefit entitlement and right of residence.

If the UKBA are saying you have no right of residence, they might try to proceed with removal on the basis that you are an unreasonable burden on the UK's resources.

[zheni]

I do not think he can actually rely directly on the directive. The directive has been transposed and the Regulations should achieve the result of the directive.
Even if there is something to dispute, between the directive and the regulations I think it will be very, very hard to prove it, how would it be argued that it was reasonable to be unemployed for 2 years when the regulations specifically state -not to be burden on the public funds. In the current economic climate I think it'll be very hard to convince the judge that the applicant's community right has been limited by incorrect transposition while he's been relying on benefits for 2 years...
I think it might be good to gather some evidence of looking for work or even, if possible gather rejection letters (shows involuntary unemployment) or letters from former employers/clients that you did some work for them.

[Obie]

please see Directive European Unionand the principle of direct effect.

If you compare the provision in Article 7(3a &3b) of directive 2004/38EC and (2Regulation 6(2b), you will notice the directive provides six months rules for people who worked for less than a year and became unemployed, whiles the regulation imposed a six months rules for under 1 year and over 1 year category. This cannot be right

[stanik]

at last appeal - I only provided 2 month job appl. instead of all 22 month.. and judge dismissed my appeal as didn't see all proves! - all right..
I made another EEA3 application - and HO refused it stating these evidence (I provided all covering 24 month) not enought and I didnt show realistic prospects being engaged..
At first appeal judge didn't have enough prove if would have would agree with my appeal.
I believe the Secr of state relied on their internal guidance which gives them example what could be realistic time of being engaged 6 months - what is wrong and doesn't reflect in Regulations 2(b)(iii)

[stanik]

Hi,

I applied again, have got refusal.. than I went to Your Europa Advice webside who works under Europenan Commission. They advised me that I am completely right about my case, that Home Office is totally wrong! They said to write a letter to Home Office to ask them to reconsider their decision. I wrote the letter with a copy of advice given. After waiting for 2.5 months (I already didn't wait) I received a Permanent Resident (without making any appeal)

[RedBarron]

Hi,

I applied again, have got refusal.. than I went to Your Europa Advice webside who works under Europenan Commission. They advised me that I am completely right about my case, that Home Office is totally wrong! They said to write a letter to Home Office to ask them to reconsider their decision. I wrote the letter with a copy of advice given. After waiting for 2.5 months (I already didn't wait) I received a Permanent Resident (without making any appeal)

Hi Stanik,
my case is similar. Can I confirm that you received a permanent residence without an appeal even though you weren`t working/ josbseeking for 2 years? thats AMAZING. I have been jobless for 1 1/2 years (then got another job), but the HO is refusing to give me a permanent residence.

[stanik]

Hi, but before being unemplyed I worked for more than 1 year which was required by law.

[Deeone]

[quote][/quote]

Hello is it possible to assit in giving an info on breakdown procedure with Europa e.g whether they gave you a template or write the letter for you and what the letter will contain, and as well How you were able to communicate with them as I requested a call back after reading your post on this forum(but I am yet to be called back by them) and also the procedure for this as I have the same issue with my uncle except he never sign on for JSA while this was going on and he is back to work since the last 4.5 years but he was refused 2 years ago stating the break from employment despite printing evidence of his job applications.

Thanks in anticipation of your response!

[stanik]

Being unemployed you have to be registered with JSA otherwise your status would be as Self-sufficient - and in this case you need Comprehensive Health Insurance and prove of your funds.

To get help from Europa, you need to explain them the situation and if you are eligible to get PR by law they will write you an advice, which you can show to HO after refusal, but it is too late I am afraid.

[Deeone]

Thanks for your response it's well appreciated.