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Uncharted Waters shenanigan – HO/UKBA

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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Mwalimu
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Uncharted Waters shenanigan – HO/UKBA

Post by Mwalimu » Fri Jul 09, 2010 8:54 pm

While I feel being a citizen of UK/Europe like all UK/European citizens, having lived here for more than 16 years but still have to go through all of these UKBA shenanigan.

My partner is an EU citizen and we have a lovely baby, again EU citizen. Though not married yet, we have lived together for almost five years now. We applied for EE1/EE2 in mind March 2010, received by HO the day after and COA issued dated end of March with a case id reference number. Still awaiting to hear from HO. Nonetheless due to the complexity HO processes, we had to use a solicitor. A few days ago, we asked the solicitor to follow up of the status of RC process, the response from the solicitor aid was and I quote “With respect to your outstanding application; your application is still pending consideration and the UKBA does not produces status report earlier than 6 months from the submission date. On receipt of any additional information, I will contact you accordinglyâ€

troubled
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Post by troubled » Sat Jul 10, 2010 2:42 pm

Why do you need resident card if you are UK citizen and your wife is EEA member? Who is the resident card for, you or your wife? I do not understand your story or you can give more information for help.
With regards to HO processing RC ,under EEA regulations it should be issued within six months but HO is noted for flouting that regulation so have patient for them.

Mwalimu
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Post by Mwalimu » Sat Jul 10, 2010 3:18 pm

Troubled, you got me wrong there; I mentioned I feel as if I am a citizen by the virtual of having lived in the UK almost half of my live. To correct misinterpretation, I am not a citizen thus the reason for RC application.

Kitty
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Re: Uncharted Waters shenanigan – HO/UKBA

Post by Kitty » Sat Jul 10, 2010 3:50 pm

Mwalimu wrote:
1. Is the response from the solicitor in line with expectation?
As troubled said, the HO can legally take up to 6 months to process the application.
2. Does the solicitor have an obligation to follow up on the status of the application given the time it can take HO at times to process application?
The solicitor is obliged to act on your instructions and in your best interests. There's no real point in their chasing for a response before 6 months have passed unless you have some urgent need to be able to travel out of the country. If you instruct them to take time doing something pointless, it's a waste of your money.
3. Is the solicitor entirely correct in their response?
See (1) above.
4. Is it possible for me to contact HO direct though we have appointed a solicitor in respect to our application?
You can, although in my experience this can lead the HO to behave in future as though you have disinstructed the solicitor (i.e. they won't contact the solicitor, they will try to contact you direct etc.).
5. The fact that we’re not yet married but have a solid relationship for more than five years, which we have had almost 50 supporting letters from friends to back up our application, does this cause any delay. Further more not to mention, I had overstayed my generosity by more than 7 years, a couple of traffic offences and CCJ
I assume this is why you have instructed a solicitor. When you say you "overstayed your generosity", did you arrive legitimately in the UK and then just overstay, or is your immigraiton history more complicated? Issue of an RC to unmarried non-EEA partner is discretionary, and the HO will consider matters like criminality, adverse immigration history etc. That said, I would hope that your solicitor has advised you on the chances of success and addressed these issues in the application.

Mwalimu
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Post by Mwalimu » Sat Jul 10, 2010 3:59 pm

Kitty, thanks for your response, I will offcourse let the six months pass by.

Arrived here legally with a 5 year visa and as mentioned overstayed by some years. Two offices which I paid a hefty fine for and ccj which was resolved.

Given, your knowledge, do you foresee any arising issues with regards to our application? The solicitors advice was very clear and based on the case brought by the Irish couple, the HO will have no grounds for refusal unless they decided to delay the issuing of RC.

Kitty
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Post by Kitty » Sat Jul 10, 2010 5:29 pm

Are you referring to the Metock case? That was a spouse application, I think.

The difference with your application is that you are not married: you do not have an automatic right to reside with your partner but only the right to have your residence "facilitated". THat's why the HO can take additional factors into account.

If your solicitor has already advised you that you have a good case though, I don't see any reason to question that, unless you have a particular problem with the solicitor's advice.

Mwalimu
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Post by Mwalimu » Sat Jul 10, 2010 8:04 pm

Kitty wrote:The difference with your application is that you are not married: you do not have an automatic right to reside with your partner but only the right to have your residence "facilitated". THat's why the HO can take additional factors into account.
Are you able to shed more light on automatic right to reside and right to residence facilitated. Section 5.1 of case workers guide on family members;

"partners where there is no civil partnership but they can show that they are in a ‘durable relationship’ with the EEA national.

5.3 Partners
4
Regulation 8 of the 2006 Regulations covers partners of EEA nationals, i.e. common-law partners and same-sex partners when no Civil Partnership has been entered into but the third country national is in a ‘durable’ relationship with the EEA national.
Conditions for qualifying for a Residence Card as a non-EEA national who is in a durable relationship with an EEA national exercising Treaty rights in the U.K.
When deciding whether a partnership is durable for the purpose of an application under Regulation 8 (5) the following criteria should be applied:
•
The parties have been living together in a relationship akin to marriage which has subsisted for two years or more.
•
The parties intend to live together permanently.
•
The parties are not involved in a consanguineous relationship with one another, i.e. they are not blood relatives who would not be allowed to marry as it would constitute incest.
•
Any previous marriage (or similar relationship) by either partner has permanently broken down.
If these conditions are met then consideration can be given to issuing a Residence Card."

The sticking point that does concern me are the following notes "However, under no circumstances should a person be granted a Residence Card on the basis of a durable relationship if they are not lawfully resident in the United Kingdom at the time that the application is made.
Although a non-EEA national can be considered on the basis of Regulation 8 if they have provided proof that they are in a durable relationship we have discretion with regard to the issue of a Residence Card. We should not seek to exercise discretion in their favour in instances where the non-EEA national is not lawfully resident in the United Kingdom.
Any decision to refuse an application made by a common-law partner should be referred to a SCW." While I recognize of the unlawful resident at the time of application, what would be the probability of a refusal considering:
1. We have been in a relationship for five plus years
2. We have a lovely kid of 2 years, now EU citizen
3. We have indicated our intent to get married
4. We have never had any form of benefit from the state and we have no intention to
5. Back up support from family and friends

Wanderer
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Ireland

Post by Wanderer » Sat Jul 10, 2010 10:13 pm

In the absence of anything more than the requirement to prove a 'durable relationship' the UKBA has no choice really but to use it's own rules, ie the UK immigration ones.

So that means documents. Leases, utility bills etc, in joint or separate names but all at a common shared address. I think the requirement is for six, from provinent sources, spread equally over the preceding two year period.

If you have those u should be ok, wrt to not being legal, seems fair enough to return to ur home country if it's not a dangerous one, we've all done it the proper way, and the EEA rules provide a caveat that those EEA rules shouldn't put it's own citizens at a disadvantage. Just IMHO tho.
An chéad stad eile Stáisiún Uí Chonghaile....

troubled
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Re: Uncharted Waters shenanigan – HO/UKBA

Post by troubled » Sun Jul 11, 2010 4:06 pm

[quote="Mwalimu"]While I feel being a citizen of UK/Europe like all UK/European citizens, having lived here for more than 16 years but still have to go through all of these UKBA shenanigan.

My partner is an EU citizen and we have a lovely baby, again EU citizen. Though not married yet, we have lived together for almost five years now. We applied for EE1/EE2 in mind March 2010, received by HO the day after and COA issued dated end of March with a case id reference number. Still awaiting to hear from HO. Nonetheless due to the complexity HO processes, we had to use a solicitor. A few days ago, we asked the solicitor to follow up of the status of RC process, the response from the solicitor aid was and I quote “With respect to your outstanding application; your application is still pending consideration and the UKBA does not produces status report earlier than 6 months from the submission date. On receipt of any additional information, I will contact you accordinglyâ€

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