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PR refused, appeal in 4 weeks. Ex spouse not cooperating

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

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push

vegeta_2009
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Posts: 111
Joined: Sun Oct 11, 2009 4:26 pm

Post by vegeta_2009 » Sun Mar 21, 2010 9:36 pm

jimkam wrote:for 10 years and I cant afford to loose this case as this is my home and life.
just out of curiosity, if you lived here for 10 years (literally), can you go through long residency route instead? i am assume those were continous 10 years living in the UK legally?

mego_1980
Member
Posts: 146
Joined: Sun Apr 26, 2009 8:10 am

Post by mego_1980 » Sun Mar 21, 2010 10:39 pm

jimkam wrote:
Would you mind asking your solicitor to give you the link to the successful cases so i can have a look please? It might be different from my case but I'm sure I can pick up one or two things from there.
Hi jimkam,

what do you mean by link i didn't understand what do you mean?

thanks

mego

jimkam
Newbie
Posts: 42
Joined: Thu Feb 25, 2010 9:38 pm

Post by jimkam » Sun Mar 21, 2010 10:50 pm

mego_1980 wrote:
jimkam wrote:
Would you mind asking your solicitor to give you the link to the successful cases so i can have a look please? It might be different from my case but I'm sure I can pick up one or two things from there.
Hi jimkam,

what do you mean by link i didn't understand what do you mean?

thanks

mego
Hi mego_1980,

What I meant is if you could ask your solicitor to give you the successful appeal case numbers so that it can be accessible via the internet. Any appeal determination can be read on the internet as long as you have the appeal reference number. Thats what I meant. Thanks

waqas123
Newbie
Posts: 40
Joined: Sat Dec 01, 2012 10:35 pm

Hi jimkam... Mego-1980

Post by waqas123 » Tue Jul 30, 2013 7:33 pm

I am now in same situation as my ex is not helping me with her pay slips so i can prove that she was exercising treaty rights?

Obie
Moderator
Posts: 14711
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Post by Obie » Tue Jul 30, 2013 7:39 pm

I thought you were advised by your solicitor to apply on expiry of your residence card.

This thread is over 3 years old.

You may not get much from it. It
Black life matters.

waqas123
Newbie
Posts: 40
Joined: Sat Dec 01, 2012 10:35 pm

Post by waqas123 » Tue Jul 30, 2013 8:56 pm

thanks obie
i am surprised that you remember,and also much appreciated that you advised me that i will not get much of it,i was just trying my luck that may be any answer or solution on (Eea national not helping after divorce that she was working/exercising treaty rights).
yes you are right that solicitors did advise both options
1.apply after my residence card expired(nov2015)
2.apply after 5 year of marriage (completing on may2014)

if i apply pr in may 2014,i can only prove first 1.5 years of living together and exercising treaty rights,so obviously home office will refuse and my case will go in appeal.
there i can show judge(letter) that i tried from HMRC that whether she was working or not during previous years. so judge can order HO to contact them. all i am is trying my luck and checking all my options.
as you know my case history i will really thankful that till next year MAY if any other similar story got success you can share with your advice.
reading from almost one year on this form i found YOU who always comes with references and LOGIC.
thanks very much for taking time to reply my post again.

Obie
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Location: UK/Ireland
Ireland

Post by Obie » Tue Jul 30, 2013 9:28 pm

Has your divorce been finalised?

I remembered advising you, on what I think is the best way forward.

I am afraid that view remains unchanged.
Black life matters.

waqas123
Newbie
Posts: 40
Joined: Sat Dec 01, 2012 10:35 pm

Post by waqas123 » Tue Jul 30, 2013 9:48 pm

divorced finalized in march 2013.didn't apply to confirm retain right of residence because all the solicitors i met, they all agree that i have already retained my right of residence after my decree absolute.
decided to apply PR in may 2014.
wife is not helping,got letter from HMRC stated they can't help me(refuse to give me any information) because its against data protection so i will use letter once my case goes in court for appea, explaining that i tried all my options to prove that wife was exercising treaty rights.
so till my decree absolute i have to prove her treaty rights(3.5years)and after divorce myself working and paying tax.
is that all making any sense?

Obie
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Location: UK/Ireland
Ireland

Post by Obie » Tue Jul 30, 2013 10:12 pm

Well the difficulty i have with the advice given by your solicitors, is that none of them took into consideration the fact that you cannot retain your right of residence, unless and until you can show that you meet the requirements of Regulation 10(5) and (6) .

There attention should have been focused on you establishing whether your wife is still a qualified person at the time the decree nici came through, and if not, advice you on the possibility of getting a CSI, prior to the decree absolute been finalised.

If your ex was working or self-employed during this period, you will be fine, otherwise you will not be.

I accept they may want to save you application fee by advising you not to apply for a new residence card, but for them to say you retained your right without establishing certain facts, is not proper.

You will be unable to obtain a CSI now, if it was established that she was not exercising treaty rights at the time of your divorce.

This is what i was seeking to draw your attention to previously.

Anyway i wish you all the best.

At present, UKBA can only exercise their power to access her tax records, if there are evidence of Domestic Violence, which makes it difficult for you to get assistance from her.
Black life matters.

wiggsy
Senior Member
Posts: 849
Joined: Sun Jan 06, 2013 6:59 pm
Location: Warwickshire, UK

Re: PR refused, appeal in 4 weeks. Ex spouse not cooperating

Post by wiggsy » Tue Jul 30, 2013 11:19 pm

Edit - sorry ref to very old post :P

vinny
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Post by vinny » Wed Jul 31, 2013 12:11 am

This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

waqas123
Newbie
Posts: 40
Joined: Sat Dec 01, 2012 10:35 pm

Post by waqas123 » Wed Jul 31, 2013 7:45 pm

hi Obie, i completely understand your view now, but now i have no other chance to find other solutions(i am trying to convince my EX aswell for help)so before i will apply PR in may 2014 i want to get ready and use all the options..
now Obie and Vinny

can you guys please explain this in AMOS and THEOPHILUS judgment..

The italics are mine. Ms Theophilus does not suggest that the procedural law of the Tribunal hindered her ability to prove her case. Rule 51 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 authorises the Tribunal to "allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal" … even if that evidence would be inadmissible in a court of law. Furthermore, as Mr Eicke pointed out, Ms Theophilus could have applied under regulation 50 for a witness summons requiring her ex-husband to attend and give evidence as to whether or not he was and had been working. She did not do so. Nor did she seek a direction under rule 45 requiring the Secretary of State to provide any information necessary for the determination of her appeal. Indeed, she made no relevant application to the Tribunal. As Maurice Kay LJ pointed out in the course of argument, in these circumstances it is impossible to identify any error of law on the part of the Tribunal in this respect.
Ms Theophilus also submitted that the decision of the House of Lords in Kerr v Department for Social Development [2004] UKHL 23 [2004] 1 WLR 1372 was authority for the proposition that it was for the Home Secretary to produce the documentation available to Her Majesty's Revenue and Customs and the Department for Work and Pensions that would establish that her former husband had worked. Again, I am unable to accept this submission. In her speech, with which the other members of the Appellate Committee agreed, Baroness Hale said:
61. Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. Diplock J as he then was said this of an industrial injury benefit claim at p 240:
"A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes. A claim to benefit is a claim to receive money out of the insurance funds . . . Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund. In such an investigation, the minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action."
62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.
63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself.
64. That is the position on the facts of this case. It is not suggested that the claimant was in any way to blame for the way in which the undertakers had filled in the form for him. …
65. But the department freely acknowledges that such information is available to it. All it needs is a name and a date of birth, from which it can trace the National Insurance number, which in turn should enable it to discover whether benefits are being paid. In many cases, if there is a claim, the department can also discover whether or not the claimant has capital. Section 3(1) and (2) of the Social Security Act 1998 makes it clear that the relevant departments are able to use the information relating to social security which they hold for any purposes connected with their functions in relation to social security. Yet the department never asked the claimant for this information. Indeed, the section of the claim form asking for details of other relatives does not ask for dates of birth (perhaps it will do so as a result of this case). Nor did the department seek this information from the claimant despite making further inquiries of him which revealed that it should have been asked. In those circumstances, the department cannot use its own failure to ask questions which would have led it to the right answer.

all i understand from above(its my responsibilty) that when i will apply pr next year using EEA4 i should write a cover letter to HO requesting to check them with HMRC,that my ex spouse was working, before refusing my application and giving me right of appeal?

am i making any sense?
[/i][/b]

waqas123
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Posts: 40
Joined: Sat Dec 01, 2012 10:35 pm

Post by waqas123 » Thu Aug 01, 2013 2:04 pm

Hi OBie and vinny can you please reply if you have time?
Thanks

vinny
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Joined: Tue Sep 25, 2007 7:58 pm

Post by vinny » Thu Aug 01, 2013 11:32 pm

This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

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