PASSPORT RETURN REFUSED

Hi,

I made my application for a Residence Card in January. Two weeks ago requested both passports, my husband's and mine, but today we receive only his and a letter that saids that since I "currently have no basis of stay in the UK/have no valid leave to remain in the UK and may therefore be liable to removal" they are unable to return my passport. Also, they invited me to leave if I want...

I'm very confused cause I sent all the forms with the requested documents, my French husband has been working since April last year, and currently I was searching for a job.
Does this mean that I won't receive the letter of application (for supporting my job search?).
How can HO send this letter to me if we fulfill all the requirements?
Could it be that I first entered the country as a full-time student, and my husband arrived 8 months after?
Or maybe that payments from his employers doesn't seem to be very regular on the bank account slips? Event though, he's working full-time from almost a year now.

Does this letter means that my application will be refused?

I appreciate any comments, I'm starting to feel very nervous after reading in this site about detentions and things like that. And to be honest, I just thought this was going to be an easy procedure, specially because I'm from Chile and when I called HO they said Certificate of Application is instantaneously issued to nationals from my country.

Parparcita , Under EU law you are considered the same as any other non EU Family member of a Union Citizen . You expecting special treatment under the basis of your nationality doesn't sit well within my mind and I don't think it's right.

Now to answer your question .

You don't have to be worried. Its the same case for everyone. It doesn't mean that your application will get refused. You will get a COA to support your job search in due course just like any other applicant.

The HO will hold onto your passport until your application has been decided and you are issued an RC as confirmation of your rights.

Don't worry .

parparcita wrote:I made my application for a Residence Card in January. Two weeks ago requested both passports, my husband's and mine, but today we receive only his and a letter that saids that since I "currently have no basis of stay in the UK/have no valid leave to remain in the UK and may therefore be liable to removal" they are unable to return my passport. Also, they invited me to leave if I want...

I'm very confused cause I sent all the forms with the requested documents, my French husband has been working since April last year, and currently I was searching for a job.

As a family member of a qualified EEA citizen, you have an extended right of residence in the UK. You don't require leave to remain. Nor are you subject to removal, unless you pose a serious risk to the public.

Their retention of your passport may also be unlawful.

The caseworker who kept your passport and wrote the letter to you should have been better trained.

vinny wrote:The caseworker who kept your passport and wrote the letter to you should have been better trained.

Is it implausible that the Home Office has started, in advance of a vote to remain in the EU, to apply the 'clarification' that "The concept of marriage of convenience - which is not protected under Union law – also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State." and expanded "maintained" to "maintained or contracted"? The problem with this clarification is the lack of "sole purpose". If the test becomes, "Would they have married if they had been able to stay in the same country without marrying?", a lot of genuine marriages will be "marriages of convenience".

Where did the OP marry? If she married in the UK, the possibility that the marriage was a marriage of convenience should already have been considered, though the criteria are subtly different.

parparcita wrote:Could it be that I first entered the country as a full-time student, and my husband arrived 8 months after?

Oops, yes. A new definition was added to the EEA regulations.

2. General interpretation wrote:“spouse” does not include—

(a) a party to a marriage of convenience; or

(b) the spouse (“S”) of a person (“P”) where a spouse, civil partner or durable partner of S or P is already present in the United Kingdom;

Are they invoking (b)? They may not even have to claim a marriage of convenience.

This may explain why the caseworker wrote the letter, as the OP is not considered as a family member.

(b) appears to exclude any partner who was already in the UK from being subject to the EEA regulations!

It's hard to see how it would not exclude any EU-citizen husband and wife where only one has been working and the other has not had Comprehensive Sickness Insurance (CSI). Are you suggesting that the caseworker has misread the antipolygamy provisions?

If you are subtly accusing me of exaggerating the prospect of primary purpose returning, it wasn't my idea. See, for example, this article by a couple of Dutch professors.

parparcita wrote:Hi,

I made my application for a Residence Card in January. Two weeks ago requested both passports, my husband's and mine, but today we receive only his and a letter that saids that since I "currently have no basis of stay in the UK/have no valid leave to remain in the UK and may therefore be liable to removal" they are unable to return my passport. Also, they invited me to leave if I want...

I'm very confused cause I sent all the forms with the requested documents, my French husband has been working since April last year, and currently I was searching for a job.
...

The caseworker will most likely be following a script or runbook.
She evidently has hit a problem (or perceives a problem) with your marital status/relationship.

Did you submit an original marriage certificate to prove your relationship?
If in a foreign language did you submit a full and proper translation of the certificate?

Was there any acknowledgement of a residence card having been applied for? I'm wondering if the case worker saw your student visa had expired and simply looked no further.

Richard W wrote:Are you suggesting that the caseworker has misread the antipolygamy provisions?

Thanks.

2. General interpretation wrote:“spouse” does not include—

(a) a party to a marriage of convenience; or

(b) the spouse (“S”) of a person (“P”) where a spouse, civil partner or durable partner of S or P is already present in the United Kingdom;

I was thinking that "the spouse (“S”)" may also be interpreted as being the same person as "a spouse of S or P". Perhaps the caseworker did that?

A marriage of convenience remains a possible ground for the letter. But the OP had not stated that this reason was mentioned in the letter, so I had not initially considered it.

parparcita wrote:Hi,

I made my application for a Residence Card in January. Two weeks ago requested both passports, my husband's and mine, but today we receive only his and a letter that saids that since I "currently have no basis of stay in the UK/have no valid leave to remain in the UK and may therefore be liable to removal" they are unable to return my passport. Also, they invited me to leave if I want...

I'm very confused cause I sent all the forms with the requested documents, my French husband has been working since April last year, and currently I was searching for a job.
Does this mean that I won't receive the letter of application (for supporting my job search?).
How can HO send this letter to me if we fulfill all the requirements?
Could it be that I first entered the country as a full-time student, and my husband arrived 8 months after?
Or maybe that payments from his employers doesn't seem to be very regular on the bank account slips? Event though, he's working full-time from almost a year now.

Does this letter means that my application will be refused?

I appreciate any comments, I'm starting to feel very nervous after reading in this site about detentions and things like that. And to be honest, I just thought this was going to be an easy procedure, specially because I'm from Chile and when I called HO they said Certificate of Application is instantaneously issued to nationals from my country.

Has your previous visa expired yet?

chriskv1 wrote:Parparcita , Under EU law you are considered the same as any other non EU Family member of a Union Citizen . You expecting special treatment under the basis of your nationality doesn't sit well within my mind and I don't think it's right.

Now to answer your question .

You don't have to be worried. Its the same case for everyone. It doesn't mean that your application will get refused. You will get a COA to support your job search in due course just like any other applicant.

The HO will hold onto your passport until your application has been decided and you are issued an RC as confirmation of your rights.

Don't worry .

Thanks for your reply. If you read my post carefully you'll see that I've never expected special treatment, I said that when I called to ask if I needed to request the COA, they said that chileans receive it instantaneously, without having to do a request. That's it

What worries me, is that, if at the moment everything were going well with my application, they would had return my passport (as with others applicants). But they didn't, and I'm thinking now there's a possibility they reject the app. I was said that the COA is sent within 21 days the application is made; but if they are doubting on my application maybe they don't send it. Do HO send the COA even if they are evaluating on reject an app?

As a family member of a qualified EEA citizen, you have an extended right of residence in the UK. You don't require leave to remain. Nor are you subject to removal, unless you pose a serious risk to the public.

Their retention of your passport may also be unlawful.

The caseworker who kept your passport and wrote the letter to you should have been better trained.

Yes, I know all of this. But as I need to work we are worried on not getting proof of my right, so employes can hire me. And as I don't know the exact system process, don't know if the different circumstances of our arrival can influence negatively on my application.

I would not have requested the residence card, but to get a job it's kind of vital right?

Richard W wrote:

vinny wrote:The caseworker who kept your passport and wrote the letter to you should have been better trained.

Is it implausible that the Home Office has started, in advance of a vote to remain in the EU, to apply the 'clarification' that "The concept of marriage of convenience - which is not protected under Union law – also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State." and expanded "maintained" to "maintained or contracted"? The problem with this clarification is the lack of "sole purpose". If the test becomes, "Would they have married if they had been able to stay in the same country without marrying?", a lot of genuine marriages will be "marriages of convenience".

Where did the OP marry? If she married in the UK, the possibility that the marriage was a marriage of convenience should already have been considered, though the criteria are subtly different.

Hi, we got married in Chile, just a month before I came here, but we have been a couple for more than ten years. We have a 13 year old son.

We lived together in Chile, and here we've been living together since he arrived, we demonstrated with all the bills and correspondence. Now that you highlighted this aspect I'm thinking they think it's and arranged marriage... But it would be so wrong, our marriage certificate states that we already shared address back home before the wedding date. Ufff.

noajthan wrote:

parparcita wrote:Hi,

I made my application for a Residence Card in January. Two weeks ago requested both passports, my husband's and mine, but today we receive only his and a letter that saids that since I "currently have no basis of stay in the UK/have no valid leave to remain in the UK and may therefore be liable to removal" they are unable to return my passport. Also, they invited me to leave if I want...

I'm very confused cause I sent all the forms with the requested documents, my French husband has been working since April last year, and currently I was searching for a job.
...

The caseworker will most likely be following a script or runbook.
She evidently has hit a problem (or perceives a pronlem) with your marital status/relationship.

Did you submit an original marriage certificate to prove your relationship?
If in a foreign language did you submit a full and proper translation of the certificate?

YEs, we submitted certificate and certificated translation, also the marriage book with our sons birth details translated as well. Thanks for answering

Richard W wrote:Was there any acknowledgement of a residence card having been applied for? I'm wondering if the case worker saw your student visa had expired and simply looked no further.

Well, it can be possible, but it would be really misleading from them...

Regarding your previous post, what did you mean?

It's hard to see how it would not exclude any EU-citizen husband and wife where only one has been working and the other has not had Comprehensive Sickness Insurance (CSI). Are you suggesting that the caseworker has misread the antipolygamy provisions?

If you are subtly accusing me of exaggerating the prospect of primary purpose returning, it wasn't my idea. See, for example, this article by a couple of Dutch professors.

member wrote:

parparcita wrote:Hi,

I'm very confused cause I sent all the forms with the requested documents, my French husband has been working since April last year, and currently I was searching for a job.
Does this mean that I won't receive the letter of application (for supporting my job search?).
How can HO send this letter to me if we fulfill all the requirements?
Could it be that I first entered the country as a full-time student, and my husband arrived 8 months after?
Or maybe that payments from his employers doesn't seem to be very regular on the bank account slips? Event though, he's working full-time from almost a year now.

Does this letter means that my application will be refused?

I appreciate any comments, I'm starting to feel very nervous after reading in this site about detentions and things like that. And to be honest, I just thought this was going to be an easy procedure, specially because I'm from Chile and when I called HO they said Certificate of Application is instantaneously issued to nationals from my country.

Has your previous visa expired yet?

Hello, Yes. It expired 8 days before I send it. And I added an extra letter explaining the consideration of that, because we couldn't get my husbands payslip from his employee (it took so long...).
But even if my visa expired, should I have anyway the right to remain?

parparcita wrote:

Richard W wrote:Was there any acknowledgement of a residence card having been applied for? I'm wondering if the case worker saw your student visa had expired and simply looked no further.

Well, it can be possible, but it would be really misleading from them...

My idea is that the case worker somehow forgot about the application for a residence card. Perhaps the case worker was interrupted while handling your application.

parparcita wrote:Regarding your previous post, what did you mean?

Richard W wrote:It's hard to see how it would not exclude any EU-citizen husband and wife where only one has been working and the other has not had Comprehensive Sickness Insurance (CSI). Are you suggesting that the caseworker has misread the antipolygamy provisions?

The regulation that Vinny quoted, if interpreted as he suggested, would not allow a German couple without permanent residence to live together in the UK unless both were exercising treaty rights. This cannot be the intention of the regulation.

parparcita wrote:

Richard W wrote:If you are subtly accusing me of exaggerating the prospect of primary purpose returning, it wasn't my idea. See, for example, this article by a couple of Dutch professors.

There was a rule in British non-EEA immigration rule that a marriage should be ignored if the main purpose ('primary purpose') of the marriage was to enable one of the partners to come to the UK to live. Some people think that the 'clarifications' to be adopted about the free movement directive may lead to a similar reasoning being adopted to justify treating marriages as marriages of convenience. At present, the generally accepted criterion is that the 'sole purpose' is to enable one of the partners to come to the UK to live.

Now, although your marriage was not contracted as a marriage of convenience, if you and your husband had split up but he has now come to the UK so that you may work, then this would count as invalidly 'maintaining' the marriage for immigration purposes. Under the 'clarifications', your marriage would then definitely be a marriage of convenience. As the case worker has not explained why your application for a residence card has been ignored, we don't know what reasons if any the case worker has for ignoring the fact that you are a family member of an EU national exercising his treaty rights. We can only guess.

parparcita wrote:YEs, we submitted certificate and certificated translation, also the marriage book with our sons birth details translated as well. Thanks for answering

As you can see from HO guidance the caseworker is likely following their internal 4-stage process to assess your application.
You have evidently failled at step 2 for some reason - that has triggered the removal letter & etc.
Ref https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- see page 11+, in particular pages 13/14

Richard W wrote:

parparcita wrote:

Richard W wrote:Was there any acknowledgement of a residence card having been applied for? I'm wondering if the case worker saw your student visa had expired and simply looked no further.

Well, it can be possible, but it would be really misleading from them...

My idea is that the case worker somehow forgot about the application for a residence card. Perhaps the case worker was interrupted while handling your application.

parparcita wrote:Regarding your previous post, what did you mean?

Richard W wrote:It's hard to see how it would not exclude any EU-citizen husband and wife where only one has been working and the other has not had Comprehensive Sickness Insurance (CSI). Are you suggesting that the caseworker has misread the antipolygamy provisions?

The regulation that Vinny quoted, if interpreted as he suggested, would not allow a German couple without permanent residence to live together in the UK unless both were exercising treaty rights. This cannot be the intention of the regulation.

parparcita wrote:

Richard W wrote:If you are subtly accusing me of exaggerating the prospect of primary purpose returning, it wasn't my idea. See, for example, this article by a couple of Dutch professors.

There was a rule in British non-EEA immigration rule that a marriage should be ignored if the main purpose ('primary purpose') of the marriage was to enable one of the partners to come to the UK to live. Some people think that the 'clarifications' to be adopted about the free movement directive may lead to a similar reasoning being adopted to justify treating marriages as marriages of convenience. At present, the generally accepted criterion is that the 'sole purpose' is to enable one of the partners to come to the UK to live.

Now, although your marriage was not contracted as a marriage of convenience, if you and your husband had split up but he has now come to the UK so that you may work, then this would count as invalidly 'maintaining' the marriage for immigration purposes. Under the 'clarifications', your marriage would then definitely be a marriage of convenience. As the case worker has not explained why your application for a residence card has been ignored, we don't know what reasons if any the case worker has for ignoring the fact that you are a family member of an EU national exercising his treaty rights. We can only guess.

Oh, thanks Richard, now I get it.

noajthan wrote:

parparcita wrote:YEs, we submitted certificate and certificated translation, also the marriage book with our sons birth details translated as well. Thanks for answering

As you can see from HO guidance the caseworker is likely following their internal 4-stage process to assess your application.
You have evidently failled at step 2 for some reason - that has triggered the removal letter & etc.
Ref https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- see page 11+, in particular pages 13/14

Perhaps I'm being stupid, but I can't see how you deduce this!

Should there not have been a clear refusal related to the application? I'm wondering if the application is still being considered. Has the marriage book been returned?

I can see some possible, but silly pitfalls. Do the names on passport and marriage certificate clearly match up? If I understand correctly, Spanish names don't behave the same way as British names when it comes to surnames on marriage.

Another silly is that it actually looks as though Parparcita married in preparation for her move to the UK. This could cause confusion - it looks like a marriage contracted to make immigration easier, but is the formalisation of a genuine relationship. Could the process have stalled because the caseworker's supervisor doesn't know what to do?

Richard W wrote:Peerhaps I'm being stupid, but I can't see how you deduce this!

Should there not have been a clear refusal related to the application? I'm wondering if the application is still being considered. Has the marriage book been returned?

The guidance clearly instructs caseworker to follow the 4 stages in sequence.
And only proceed to next stage if the previous/current stage (ie test or check) succeeds or passes.

The relationship test is at stage 2 and this must be what triggered the email to OP about their relationship.

A "No basis of stay..."-type email shows the applicant is not recognised as a family member so the relationship is not acknowledged/confirmed by caseworker.

So it appears caseworker only got as far as stage 2 and has some issue with establishing or verifying the relationship.

Hi Noajthan,

good morning. i have a doubt regarding the stages, as you said stage 2 is relationship test, that means this stage comes after Biometric and COA ? in my case, today is the 3rd month since my application sent (EEA FM).

awaiting your response

sandy88 wrote:Hi Noajthan,

good morning. i have a doubt regarding the stages, as you said stage 2 is relationship test, that means this stage comes after Biometric and COA ? in my case, today is the 3rd month since my application sent (EEA FM).

awaiting your response

I don't understand your question and can't see how it relates to this thread.
I have no idea where biometrics etc fits within the 4-stage process as the document does not mention it.

my question was which stage is biometric enrolment and COA? stage 1?

sandy88 wrote:my question was which stage is biometric enrolment and COA? stage 1?

If you read it, the guidance is just on a 4-stage process to assessing a case.