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Official , Section 3C don't Apply to Residence Card Apps

Use this section for queries concerning applications on any of the EEA series of forms, and also for applications for EEA Family Permits.

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Official , Section 3C don't Apply to Residence Card Apps

Post by Obie » Fri Aug 05, 2016 11:45 am

This Authority appear to have slipped my attention, but it confirmed what many of us knew already, which is that Section 3C of the Immigration Act 1971 does not apply to Residence Card Application.

I believe it was a missed opportunity for the Court of Appeal not to have dealt with the question of whether this is acceptable under EU law principle, that similar protection that Section 3C confers is not extended to EEA nationals and their family, especially in the case of Durable partner of EEA nationals, who apply for Residence Card before their leave expires.

If these people where in a Durable relationship with a British or Settled person, they will be able to apply under the rules and obtain Section 3C rights, but because they are in a relationship with an EU citizen, they are precluded from working for 6 months, and their career opportunities or interest may be disrupted. There lawful residence may come to an end, and they may be refused citizenship for unlawful residence.

In my opinion,such situation is beyond any degree of absurdity.

AS (Ghana) v Secretary of State for the HomeDepartment [2016] EWCA Civ 133 (20 January 2016) was bound to fail on its fact, as he did not have any rights under the regulation, and the subsequent FLR(O) application could not cure that, after his appeal had failed.


Interesting Article from Freemovement.
4. The question before us is whether a person who at one stage was the spouse of an EEA citizen with a right of abode in the United Kingdom but no longer has that status and right is to be treated as having leave either under the Immigration Act 1971 or otherwise after his application for permanent residence as the former spouse of an EEA citizen has been rejected.
The answer is a firm “no”.

Under the Immigration Act 1971 sections 3C and 4, someone applying for variation of leave under that Act — that is under UK immigration law, rather than the 2006 Immigration (EEA) Regulations — has their leave extended pending a decision on whether to vary the leave or not. However, states Lord Justice Beatson, that is the 1971 Act. The Immigration (European Economic Area) Regulations 2006 are a different matter, and a different procedural system applies to them.

Mr Kannangara’s submission that a person “should” have a status in effect similar to that given by section 3C of the 1971 Act is in effect a submission as to a reform designed to put such a person in a similar position to a person with leave under the 1971 Act. That process, however, is one for the legislature and not for the court.
The final nail in the coffin is the point that the 2006 Regulations themselves recognise the distinction between the processes under the different immigration systems.

As well as the provisions to which I have referred, paragraph 4(2) of schedule 2 to the 2006 Regulations expressly provides that a person who has been issued with a residence card shall have no right of appeal under section 82(1) of the 2002 Act, and regulation 19(5) recognises the distinction between the right to reside under EU law and the right to remain under the 1971 Act. It provides that a person must not be removed as a person who does not have or ceases to have a right under the 2006 Regulations it he has a right to remain by virtue of leave granted under the 1971 Act.
After thinking long and hard, I have come to the conclusion that brexit is a cancer. The only good brexit is a dead brexit.

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by Richard W » Sun Aug 07, 2016 2:28 pm

Obie wrote:I believe it was a missed opportunity for the Court of Appeal not to have dealt with the question of whether this is acceptable under EU law principle, that similar protection that Section 3C confers is not extended to EEA nationals and their family, especially in the case of Durable partner of EEA nationals, who apply for Residence Card before their leave expires.
The judgement seems to have restricted its consideration to cases where cards serve only a declarative purpose, but do not grant a right. I therefore think it has not decided the issue for extended family members, where a card grants the right to be treated as a direct family member.

There are also the cases of direct family members with residence cards becoming extended family members of the same sponsor. I suspect it has also not decided the issue for these cases.

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by Obie » Sun Aug 07, 2016 2:31 pm

But that is not what this thread is about.

It is about the application of Section 3C of the British Immigration Act 1971 to People who benefitted from the regulation.

Please let us not deviate from the topic on the thread.
After thinking long and hard, I have come to the conclusion that brexit is a cancer. The only good brexit is a dead brexit.

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by faisal48 » Thu Jul 27, 2017 2:25 pm

Hello,

I hope you will be able to guide me with my current situation. I am going to post 2 emails here which I hope gives you understanding about my situation. There is a something to remember before you read all that I was issued 5 years Residence card as non-EEA national of an EEA national who is exercising treaty right in the UK. Please let me know if the response from ESC is right?

1)
I, ........, write this email in relation to the Employer Checking Service through e-form conducted by my employer....... for me.

In your above referred notice, you have provided a negative result for the check stating "I have no right to work in the UK as my application for leave to remain in the UK was submitted after the expiry of my previous leave". It appears the information relating to the date when my application was submitted has been recorded incorrectly in error in your records which has resulted in you providing incorrect reply to my employer.

My previous leave to remain in the UK was valid until 08/05/2017 and I submitted an application for Indefinite Leave to Remain based on my 10 year continuous lawful residence in the UK, under same day service, at Croydon Premium Centre on 15/11/2016 for which I paid the additional Home Office fee for same day service. The Croydon Premium Centre did not take a decision on my application on 15/11/2016 and held it stating further inquiries were needed.

Thereafter they requested further information which I provided. Unfortunately, my application was refused. The refusal letter was dated 16/05/2017. I lodged an in-time appeal against the refusal decision through my lawyers..... which is pending with the Immigration Tribunal to be listed for a hearing. The appeal number is...........

Therefore, my leave under 3C of the Immigration Act 1971 continues and I have all the same entitlement as at the time of submitting my application on 15/11/2016.

I am attaching herewith the Home Office letter issued to me on 15/11/2016 at the Croydon Premium Centre when they kept my application pending further investigation, the Tribunal's letter confirming the appeal has been lodged and the copy of my passport confirming my valid and expiry dates of previous leave.

Due to your error, my employer has terminated my employment, hence, I request you to send another Notice to my employer immediately confirming my right to work so that my employment can accordingly be reinstated within next day or two. Please note I have never lived in the UK without leave, hence, had submitted the application for indefinite leave to remain on 15/11/2016 based on my 10 year continuous lawful residence.

I look forward to hearing from you soon. However, if you require any further information, please do not hesitate to contact me.

2) Reply from ECS (Employment Checking Service)

Thank you for your email.

I have reviewed our records and can confirm that the Employer Checking Service response in question was correct.

Home Office records show that your current, outstanding application for Indefinite Leave to Remain was submitted on 15/11/2016, however the expiry of your last grant of leave to remain under UK Immigration Rules was 30/04/2012. Between 08/05/2012 and 08/05/2017 you remained in the UK with an EEA Family Member Permit.

Permission to reside under EEA immigration regulations 2006 is not considered under the UK Immigration Rules. The two sets of laws are completely separate and require different rules for eligibility and are not interchangeable.

The Home Office guidance on Leave Extended by 3C, which I have attached for your reference, states:

A person will have section 3C leave if:
• they have limited leave to enter or remain in the UK
• they apply to the Secretary of State for variation of that leave
• the application for variation is made before the leave expires
• the leave expires without the application for variation having been decided
• the application for variation is neither decided nor withdrawn

At the time of your latest application you did not have limited leave to enter or remain in the UK, therefore 3C would not be triggered.

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by Obie » Thu Jul 27, 2017 2:29 pm

Well it appears that those dealing with your case, do not know what they are doing. The Home office appear to be correct unless you are still a family member of an EEA national. No section 3C exist in your case.
After thinking long and hard, I have come to the conclusion that brexit is a cancer. The only good brexit is a dead brexit.

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by faisal48 » Thu Jul 27, 2017 2:40 pm

I have applied for ILR on the basis of 10 years LR while having a valid EEA residence card. After ILR refusal I launched the appeal in time so does it means section 3C leave don't trigger in my case? As I have applied for ILR according to UK immigration rules not the EEA rules. If this is the case then why I have given the right of appeal? Am I be consider myself as an over stayer? My EEA residence expired after the refusal.

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by Obie » Thu Jul 27, 2017 2:51 pm

faisal48 wrote:I have applied for ILR on the basis of 10 years LR while having a valid EEA residence card. After ILR refusal I launched the appeal in time so does it means section 3C leave don't trigger in my case? As I have applied for ILR according to UK immigration rules not the EEA rules. If this is the case then why I have given the right of appeal? Am I be consider myself as an over stayer? My EEA residence expired after the refusal.
You did not apply for a residence card, or your right to work would have continued. Your lawyer should be aware of this.

There is no Section 3C if you did not have leave to remain before. You had a residence card. Now the question is, where is your family member.
After thinking long and hard, I have come to the conclusion that brexit is a cancer. The only good brexit is a dead brexit.

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by faisal48 » Thu Jul 27, 2017 3:01 pm

No, I have applied for LR application while having a valid EEA residence card. We are divorced but at the time of application I didn't knew it, she is still exercising the treaty right here.

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by Obie » Thu Jul 27, 2017 3:04 pm

Unfortunately the step taken by those representing you was totally flawed. I am sure you would have failed on your ILR because you did not demonstrate she was exercissing treaty rights for the time your claimed under the regulation.

Your lawyer probably proceed on the basis that a residence Card is a leave to remain, when it is not.
After thinking long and hard, I have come to the conclusion that brexit is a cancer. The only good brexit is a dead brexit.

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by Yopcity1568 » Sun Aug 06, 2017 10:09 pm

Dear Obie,
After reading your thread I now understand why my right to work has been revoked!!! Thank you! For my history, I came as a student on 13/07/01 always renewed on time until 28/12/09. On 20/11/09 married a EU citizen and got my residence card on 10/11/10 which expired on 10/11/15. Separated from hubby who relocated in Spain in 9/2015. Applied for ILR (LR) on 04/11/15 which was refused on 22/04/16 with my right to work being revoked saying that I did not have leave a leave when I applied for ilr. I was shocked, now I understand. Thanks God that I managed to find my hubby work paper to prove that he was working and fulfilling his treaty right from 29/12/09 till 13/07/20/11 covering my ten years lawful residency. This is why my appeal was allowed. I wish I had known this board before I applied for ILR I wouldn't have spent a lot of money on lawyer and done the research on my own!!! Never mind!! Anyway, thanks to this board I was fully prepared for my appeal and won it. Thank you guys!

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by HONDAKKJ » Mon Aug 21, 2017 12:15 am

hello
i had applied for eea efm visa and still waiting for the decision and now my 10 years are completed aswel so i wonder if i can apply for my ilr directly and withdraw my efm application or what other save options i have?

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by HONDAKKJ » Mon Aug 21, 2017 12:17 am

Obie wrote:Unfortunately the step taken by those representing you was totally flawed. I am sure you would have failed on your ILR because you did not demonstrate she was exercissing treaty rights for the time your claimed under the regulation.

Your lawyer probably proceed on the basis that a residence Card is a leave to remain, when it is not.


hello
i had applied for eea efm visa and still waiting for the decision and now my 10 years are completed aswel so i wonder if i can apply for my ilr directly and withdraw my efm application or what other save options i have?

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by vinny » Mon Aug 21, 2017 12:24 am

Your Long Residence application cannot succeed if the EEA EFM application fails. Therefore, there is no point in applying under Long residence directly.
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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by HONDAKKJ » Sun Aug 27, 2017 12:40 am

Obie wrote:
Thu Jul 27, 2017 3:04 pm
Unfortunately the step taken by those representing you was totally flawed. I am sure you would have failed on your ILR because you did not demonstrate she was exercissing treaty rights for the time your claimed under the regulation.

Your lawyer probably proceed on the basis that a residence Card is a leave to remain, when it is not.
hello
i had applied for eea efm visa and still waiting for the decision and now my 10 years are completed aswel so i wonder if i can apply for my ilr directly and withdraw my efm application or what other save options i have?

HONDAKKJ
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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by HONDAKKJ » Sun Aug 27, 2017 12:45 am

hello
i had applied for eea efm visa and still waiting for the decision and now my 10 years are completed aswel so i wonder if i can apply for my ilr directly and withdraw my efm application or what other save options i have?

I heard if i have any real and direct relationship with any british person along with the eea citizen then even if my ilr is refused still i ll have some grounds to win the case .is there any truth in this.As my real sister is british citizen

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by HONDAKKJ » Sun Aug 27, 2017 12:48 am

vinny wrote:
Mon Aug 21, 2017 12:24 am
Your Long Residence application cannot succeed if the EEA EFM application fails. Therefore, there is no point in applying under Long residence directly.
firstly, If it gets fail then what options i ll have
secondly if i withdraw efm application and submit an application to vary and submit an ilr application?

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by HONDAKKJ » Sun Aug 27, 2017 12:54 am

if some one was on tier 4 visa then he appllied for an eea efm and while the application is still pending his/her 10 years long residency period is completed then in that case does that section 3c,3d covers it?

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by vinny » Sun Aug 27, 2017 1:04 am

Do read the title and first post of this topic.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by HONDAKKJ » Sun Aug 27, 2017 1:20 am

vinny wrote:
Sun Aug 27, 2017 1:04 am
Do read the title and first post of this topic.
is there any chance if ilr application is submitted and HO might consider discretion?if we attach the proofs along with the ilr app of the eea citizen exercising traty rights in uk like his salary slips,employer letter?

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Re: Official , Section 3C don't Apply to Residence Card Apps

Post by CR001 » Sun Aug 27, 2017 4:29 pm

HONDAKKJ wrote:
Sun Aug 27, 2017 1:20 am
vinny wrote:
Sun Aug 27, 2017 1:04 am
Do read the title and first post of this topic.
is there any chance if ilr application is submitted and HO might consider discretion?if we attach the proofs along with the ilr app of the eea citizen exercising traty rights in uk like his salary slips,employer letter?
Who is your EU citizen sponsor?

For long residence ILR, you MUST have 10 years of legal residence, there is no discretion.
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