Renewal of ILR(/PR) status - NTL or new EEA4??!!!

[virtual-writer]

Hi all.

I've searched the boards, but can't find a solution to our problem. I've also trawled the UKBA and OPSI sites, without success.

My husband, family member of EEA-national, got his ILR stamp 21st Aug 2006. He did not get the permanent residence card, and there is no expiry date on it.

As his passport has expired, he applied for a new and then in June 2009 he applied for NTL through his solicitor (with fee).

It's now been six months, and changes have been made in how BA allocate the applications, hence husband's application reached the Liverpool office in October.

Yesterday I spoke to the solicitor and was told she's received two letters from the HO, where they thank us for the applications for a residence card(!), but they need more documents to consider it (my passport, and possibly other documents). She did not understand why they're talking about a residence card as we applied for a transfer of conditions only, so she wrote a letter to them requesting that they've made a mistake and please could they just put the stamp in the passport and give it back to us.

Then I spoke to a phone operator in Liverpool, and was told this:
Because my husband was given ILR under European law, they apply European law on his case, and under European law there is no such thing as transfer of conditions, so they are treating his NTL application as a new application for a residence card! Therefore they need the extra documents to make a decision. My husband's indefinite leave stamp expires in 2016 (when did anyone tell us that before? never).

This doesn't make sense. Since he has permanent residence/ILR, he comes under the rules of permanent residents, no?

I've read up about the PR or permanent residence card (suddenly this is something different to ILR! When did this change happen? In texts from the UKBA I've only seen ILR - aka permanent residence - or similar) and now I've understood that the PR must be renewed every ten years. How is this made? What is the process and what documents are requested?

Are they right in there being no NTL for EEA family members? Why is this not clear on the UKBA website?

Thank you very much

PS Don't mention naturalisation, we've waited since March -07 (yes -07), and it doesn't look like we'll get it this time, they're just biding their time trying to squeeze my husband of any private and irrelevant information they can

[86ti]

Since April 30, 2006 Directive 2004/38/EC and it's UK implementation is in force. ILR and PR are not the same. The latter is a term of the EEA regulations, the former of UK national law. You obtain the status automatically. No formatlities required but you are free to apply for PR (and extension) via form EEA4. But your application is considered as such anyway though you will have to provide the required documents to get the sticker.

[86ti]

Now, I see that you actually started the sticky thread regarding the Directive in the Europe forum...

[BLK235]

According to The Immigration (European Economic Area) Regulations 2006 15.(2)

Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.

So in theory if you can prove that PR has been already confirmed by UKBA before and that you have not been absent for a period exceeding two consecutive years UKBA has to confirm PR without documentation from your sponsor.

Additionally 18.(3) states

Subject to paragraph (5) and regulation 20(3), a permanent residence card shall be valid for ten years from the date of issue and must be renewed on application.

What I am not sure here is what "on application" means. Does it mean to be issued before application is considered?

Practically I am not sure if UKBA would even accept EEA4 application without supporting evidence from EEA sponsor (i.e. won't even look at EEA4 application unless supporting evidence from EEA national is provided). According to their website

For your application to be accepted, you must provide a valid identity card or passport, and evidence that you have a right to permanent residence. See section 6 of the EEA4 application form for details of the supporting evidence that you must provide.

And section 6 of the EEA4 application form goes on about EEA national supporting evidence.

[virtual-writer]

So in theory if you can prove that PR has been already confirmed by UKBA before and that you have not been absent for a period exceeding two consecutive years UKBA has to confirm PR without documentation from your sponsor.

You say "in theory", but that doesn't help me very much does it?
They have all the evidence in front of them, because we submitted the passports (husband's old and new passports) along with other supporting documents with the NTL application. So... "in theory"... they have to confirm PR without documentation from me...!? And yet they're not. They are counting it as an application for permanent residence (apparently EEA4?)

valid for ten years from the date of issue and must be renewed on application.

So, valid for three years, then why would we be forced to apply again after only three?! Ten years, possibly because of the fact that passports expire every ten years?
"Renewed on application", I presume that would mean with another application?! Ugh, they must really love being inundated with applications on a constant basis, creates jobs, aye?
Well it's not so fun for the applicants to constantly live in the stress of collecting evidence, submitting the right way and in time, spending the money, and then waiting (sometimes for what feels like an eternity).

[86ti]

This NTL/ILR stuff is history. I guess all they want to do is to confirm that you satisfy the conditions for PR under the new regulations. And, you do not have to apply for EEA4. It's optional. You make yourself too much stress.

[virtual-writer]

One other thing to consider is that when we applied for ILR, the new law had not yet come into force (end of March -06).
So technically (and we *have* the passport to prove it) he has ILR, not PR...

But it looks like UKBA doesn't see things that way.

[virtual-writer]

you do not have to apply for EEA4. It's optional. You make yourself too much stress.

Well, I did mention that we could travel with both passports, but UKBA don't "recommend it".

That's why we applied, because we don't want any hassle at border checks, and because, as I've understood it, at a border check you get a stamp and then you're told to go get the stamp/card in your new passport (so you'd, sort of, be ordered to apply for the transfer if you travel).

[Obie]

Based on the Transitional Arrangement, applications made before April 2006 but determined after April 2006, should be considered under directive 2004/38EC. Therefore the HO was wrong to have issued him with ILR. He should have been issued with PR under the EU regulations.

He doesn't need to apply for Resident Card, as he is a family member with a right to permanent resident. He should have been issued with a Permanent residence card, which is automatically renewed after 10 years.

You could write to them stating this fact, that your husband did not get what he had applied for.

Also you could travel with both passport, as that is perfectly legal.

[virtual-writer]

automatically renewed after 10 years.

How is it automatically renewed, when two years abroad invalidates a PR status? There must be some kind of process by which PR holders are checked.

More to the point: If you want your PR status confirmed, is there a process by which to get said confirmation? Or is it simply done with another application for the sticker?

[Obie]

The format of the residence card is not fixed, so Member States are free to lay it down as they see fit . However, the residence card must be issued as a self-standing document and not in form of a sticker in a passport, as this could limit the validity of the card in violation of Article 11(1).

Therefore, one can confortably say that putting the residence card or the Permanent Residence card as a sticker in the holders passport, is illegal as it limits the validity of the document, which is not allowed.

OP, they have not set a mechanism by which PRC can be automatically renewed after 10 years, as the due date for this possible automatic renewal will not commence until 2016 at the earliest.


You husband can simply request his passport and reattach it to his old one with the PR and his problem will be solved. The passport is expired but the validity of the PR remains in place.

If you choose to have it transfered to his new passport, then you might have to follow the UK rule and apply on EEA 4, as opposed to the EEA 2 resident card they wrongly told you about.

However, because your husband is applying for this document as opposed to renewal, which would have been done automatically, you should expect at least 6 months for processing.

You can report the UK to solvit or the commission, as realistically the PR should be a free standing document, the validity of which, should only be determined by whether a person has been out of the UK for a period exceeding 2 years, and not when their passport expires.

[virtual-writer]

The format of the residence card is not fixed, so Member States are free to lay it down as they see fit . However, the residence card must be issued as a self-standing document and not in form of a sticker in a passport, as this could limit the validity of the card in violation of Article 11(1).

Therefore, one can confortably say that putting the residence card or the Permanent Residence card as a sticker in the holders passport, is illegal as it limits the validity of the document, which is not allowed.

UKBA issues the PR card in the form of a sticker in the holders passport, and it is valid for ten years:

Non-EEA nationals will be issued with an endorsement, which is placed in their passport. This endorsement is valid for 10 years.

But it is true that they gave the wrong "PR". Instead of the ILR stamp they should have given a PR card sticker (or even better, followed European law to the full and given a self-standing document.)

OP, they have not set a mechanism by which PRC can be automatically renewed after 10 years, as the due date for this possible automatic renewal will not commence until 2016 at the earliest.

That should makes sense, but the UKBA doesn't have any procedures for those who fall outside of normal circumstances.

If you choose to have it transfered to his new passport, then you might have to follow the UK rule and apply on EEA 4, as opposed to the EEA 2 resident card they wrongly told you about.

However, because your husband is applying for this document as opposed to renewal, which would have been done automatically, you should expect at least 6 months for processing.

Actually they did say permanent residence card (so that would mean EEA4). We applied for NTL, the equivalent of a PR renewal for ILR holders and the only thing we saw available at the time of our application in June this year. Since it's an ILR stamp in the passport, NTL was the natural thing to go for. And it has now been six months since the application was made (12th June to be exact), and we didn't hear a thing until now in December.

You can report the UK to solvit or the commission, as realistically the PR should be a free standing document, the validity of which, should only be determined by whether a person has been out of the UK for a period exceeding 2 years, and not when their passport expires.

I'm considering taking contact with Solvit, they haven't been particularly helpful before though.

The points to take up with the UKBA now, are:
*The passport contains an ILR stamp, hence the appropriate route (following the recommendations of the UKBA) when attaining a new passport is to apply for NTL
*A PR card sticker should have been put in the passport, not an ILR stamp, since the application was approved in August 2006, long after the new regulations of 30th April 2006 were enforced
*If the UKBA insist that my husband received ILR/PR under European law and continues to fall under European law, they should follow it to the fullest and issue a free standing document stating the PR status, which would be without a time limit

[virtual-writer]

I've dabbled a bit in this subject before (I just made a search for my posts, because I wanted to remind myself of what I had spoken to Solvit about):

Consequences of UK ILR on rights of EEA family members?

I never understood it completely, and still don't.

The UK is not implementing the Directive in the correct way, which makes it next to impossible to comprehend how things work.

[virtual-writer]

The format of the residence card is not fixed, so Member States are free to lay it down as they see fit . However, the residence card must be issued as a self-standing document and not in form of a sticker in a passport, as this could limit the validity of the card in violation of Article 11(1).

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM0313:FIN:EN:PDF

[Obie]

Sorry Virtual Writer, i missed your previous post.

Firstly, for the validity of the residency documents not to be compromised, ie Resident Card 5 years, and PRC 10 years, member state are oblidged to issue these residence cards as a free standing documents, so their use and validity is not dependent on the validity of your passport.


You have a strong case that the HO issued the wrong document to you husband, in breach of their transitional arrangements. The fact that they said application recieved before 30th April 2006, but approved after April 2006, should be treated as an application made under the directive. Therefore they should reissue the new and correct documents without any delays, and any requirements for a new application to be lodged and for further evidence of treaty rights to be provided, when you are someone who has acquired the right of permanent resident, and hence no formailities or administrative procedure should be applied to you or your family members who have resided in UK in accordance with the directive.

The Uk imposing these illegal administrative policies are in breach o EU law.

Ireland has similar procedure. However, they don't ask you to make a fresh application once you passport has expired, as they are perfectly aware, unlike the UK, that the validity of your residence or residence document should not be affected by expiry of your passport.

[virtual-writer]

Thank you very much Obie, I am contacting Solvit today and the local MP.

[virtual-writer]

I contacted the Citizens' Signpost Service last week and this was our correspondence:

Enquiry posted on
21/12/2009

Enquiry
69565: Dear Sirs/Mesdames,

These questions are with regards to my husband's rights under European Law:

We have permanent residence in the UK since Aug 2006, but the UKBA put an ILR stamp in his passport instead of a Permanent Residence Card sticker. We did not realise this until a few days ago.
When my husband's passport expired, he applied for NTL (transfer of conditions, it is used by ILR holders when they need their stamp in a new passport) in June 2009, with the help of a solicitor. Nothing was heard from them and in the beginning of autumn, we contacted our local MP for help. A letter went out from his office, but to this day they have not received a reply.
In October my husband's NTL application went from the Durham department to Liverpool, where they deal with all cases that have a connection with EEA. We got to know this when we called the UKBA enquiry line. We have not had a response from them why it has taken so long, neither by post nor on the phone.
This past week, when finally getting a hold of my husband's solicitor, we were told that the UKBA had sent two letters, one from November and the other from 1st December. These letters stated their thanks for the application for a Permanent Residence Card! But they need more proofs, namely my Swedish passport, our marriage certificate and proof of me exercising my treaty rights for the past five years.
My husband's solicitor did not understand why, so she was about to write to them asking they correct their mistake and treat this as a NTL application, since that was what we had sent.
I called the UKBA, and they said that because the indefinite leave was granted under European Law, my husband's case would be treated under it now also, and in European Law there is no such thing as a transfer of conditions, therefore the application would be treated as a new application for permanent residence.
After speaking to the UKBA I told the solicitor what I had been told, and she had to ask a colleague to get back to me. I have done a lot of research myself and we both came to the conclusion that the UKBA had issued the wrong permanent residence "document" to my husband. The implementation of Directive 2004/38/EC went through in April 2006 and all EEA applications were supposed to come under the new law from that day on.
My husband's permanent residence status can by law only be removed by being absent from the UK for over two years, yet a re-application for permanent residence can be refused on other grounds, effectively removing PR for other reasons than two years absence.
Re-applying for PR is not necessary, though. And we want to get out of the constant "immigration-limbo", with the stress of collecting evidence, submitting the correct documents in time, and then waiting for ages. My mother-in-law is eighty years old and has several medical issues, we haven't seen her for over a year and a half. My husband would like to start a business that would involve transiting several countries on the continent, at the moment he is at home suffering from depression.
With these rules/lack of processes, the UKBA has made "Permanent Residence" limited in time, to whenever a passport is replaced, and has put EEA-nationals and their family members into a more difficult situation than other residents because those with "no time limit" can easily have their stamps transferred through a very simple process.

My questions are:

*The passport contains an ILR stamp, not the PR sticker, can he travel without applying for a visa, considering he is a family member of an EU citizen? All the other requirements would be met (traveling with me, the spouse, and our marriage certificate)
*A PR card sticker should have been put in the passport, since the application was approved in August 2006, long after the new regulations of 30th April 2006 were enforced. Is there a way to make the UKBA rectify their mistake?
*Can the UK be held responsible for not following European Law by issuing the PR card as a sticker in the holder's passport, instead of a free-standing document?
*Does the UKBA have a right to ask for proofs other than our whereabouts since August 2006?
*Is there in European Law a process for when a passport is lost or replaced to have a new PR card sticker put into the new passport? Maybe this is a hypothetical question, if there are no other countries attaching the PR card to passports other than the UK, but these are the facts of how things are in the UK.

I highly appreciate your help and hope you can get back to me as soon as possible with positive answers to our dilemmas and problems.

Thank you very much, in advance.

Yours sincerely,
xxx xxx

Reply
Dear Mrs. xxx,

Thank you for your enquiry.

In response to your queries:

a) Article 5 of Directive 2004/38 - http://eur-lex.europa.eu/LexUriServ/Lex ... 123:EN:PDF provides that a non-EU family member may travel to another Member State in the company of or to join an EU family member simply on production of a valid residence card in lieu of a visa. The problem with this is that many Member States have ignored this provision and continue to insist on production of a valid visa. For those which will accept the residence card, I am not convinced that your husband’s ILR will be accepted as a valid residence card pursuant to Article 20 of Directive. It would not be unreasonable for other Member States not to recognise your husband’s ILR as a permanent residence card and he would have no redress under EU law. If you planned to travel to other Member States on production of the ILR rather than the PR card, you would have to check with the Embassies of the countries to which you were travelling to ensure that the ILR would be acceptable and would constantly run the risk and worry that your husband’s ILR would not be accepted by an immigration official at the entry point.
b) To try to have the UKBA informally rectify the mistake with the PR sticker, I recommend that you refer the matter to SOLVIT which is an EU network established to quickly and informally resolve problems caused by misapplication of EU law by public administrations. The website address for SOLVIT upon which you will find further details of the service together with contact details for the Swedish and British SOLVIT representatives is www.ec.europa.eu/solvit/
c) It would be open to you to take legal proceedings against the UKBA in relation to the mistake but it would be less stressful and cheaper if SOLVIT could simply resolve the problem for you at this stage.
d) The main requirement in relation to permanent residence is that the non-EU family members should have legally resided with the EU citizen in the host State for the past five years. It should not be necessary to produce proofs other than those which confirm your husband’s residence with you for the requisite five years. Again, this is a matter which you may wish to raise with SOLVIT.
e) Unfortunately, there is something of a gap between the issue of passports and residence cards. Member States are responsible in relation to their own passport policy i.e who is granted a passport, procedures when lost or stolen etc whereas EU law regulates in relation to the grant of residence cards. Therefore, there is no EU law in relation to replacement of passports. However, you may also be able to raise the issue that the residence cards granted by the UK are not in conformity with those provided for under Article 10 or 20 of Directive 2004/38.

It is also open to you to lodge a formal complaint on the matter to the European Commission. A standard complaint form together with guidelines for completion are available on the following website: http://ec.europa.eu/community_law/your_ ... rms_en.htm

For further information on the application of Directive 2004/38, you may wish to browse the following guide: http://ec.europa.eu/commission_barroso/ ... _ec_en.pdf

I trust that this information is of assistance to you.

Yours sincerely,

Citizens Signpost Service



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