I HAVE WON THE APPEAL!

made_in_ussr wrote:Hello everybody- i need help! i applied for PR -EEA4 form, but my husband didnt support my application- I didnt provide his documents in originals and but in photocopies and some of his documents.
I am from Belarus, married from 2005, still married, but during the divorce process in poland, our child was born here in 2007, I am a key worker-a teacher of English at school in London. My child is Polish/Belarusian. My husband and myself are during the World War number 3. I cant ask for his help- I begged him to support my application but...the answer was **** you! The child is with me, now with him. He pays 150 pounds/monthly for the child.


Please see below what they wrote to me:


Refusal to issue a Permanent Residence card
( No requirement to leave the UK)
Immigration ( EEA) regulations 2006 regulation 15 (1) (b)
To: me
You have applied for Permanent Residence on the basis that you are the family member of an EEA national and that you have resided in the UK with that EEA national in accordance with ( state relevant EU law) for a continuous period of 5 years. However, you have not provided evidence that that EEA national residence in the UK in accordance with Immigration (EEA) Regulations 2006 during that 5 year period.
You are entitled to appeal against this decision under section 82 of the Immigration EEA) Regulations 2006. A notice of appeal is enclosed which explains what to do and includes advice from the Legal Services Commission on how to get help.
The appeal must be made on one or more of the following grounds:
• That the decision is unlawful because it racially discriminates against you
• That the decision breaches rights which you have as a member of an EEA national’s family under Community Treaties relating to entry to or residence in the United Kingdom
• That the decision is otherwise not in accordance with the law
If you are in the position to submit necessary information to support your application for permanent residence you may wish to submit a further application.

Signature…..

On behalf of the Secretary of State







Reasons for refusal letter
Dear mrs ...
On july 2011 you applied for Permanent Residence as a confirmation of right to reside in the United Kingdom.
An official has considered your application on behalf of the Secretary of State.
To qualify for the grant of Permanent residence in the United Kingdom, evidence confirming identity and family relationship must be provided for the EEA national and family members together with documentation confirming that they all have resided in the United Kingdom in accordance with the Immigration (EEA) Regulations 2006 for a continuous 5 year period.
In support of your application you have provided a Belarus passport, marriage certificate, birth certificate, copy Polish passport and identity card for B J Csurname, self assessment tax calculation, copy tax return, bank statements, tax credit form and supporting copy Documents.
Although it has been noted that you have stated in your application form and covering letter that you separated from your husband, as you are not divorced, your application has had to be considered as the spouse of an EEA national.
Your application has been made on the basis that your EEA national sponsor has exercised treaty rights through self-employment for a 5 year period. In order to reflect both business registration and business activity, evidence of self employment must be ilustarted from a variety sources. Documentation normally provided to UKBA to demonstrate economic activity takes the form of HMRC business registration documents, evidence of national insuarance contributions, purchase and sales invoice supported by business bank statements illustrating the appropriate entries, audited accounts, company accounts, etc.
As evidence of treaty rights for B J Csurname , you have provided a self assessment tax calculation for 2004-2005, 1 statement of accounts for April 2005- and March 2006, copy completed tax return for 2006, bank statements for various dates between April 2008-March 2009 and a tax credit annual review form for yearend April 2009.
However, this documentation is incomplete and does not show that your EEA national sponsor has exercised treaty rights for a continuous period of 5 years. Furthermore, documentation is required to confirm that you also have been resident in the United Kingdom for a continuous 5 years period.
You have failed to demonstrate that that your national EEA family member is a qualified person as detailed in the Regulations. Although consideration has been given to the child’s birth certificate ( issued in the United Kingdom) that you have provided , no evidence, such as a court letter etc, has been submitted to confirm that you hold custody.
Therefore , it has been decided to refuse to issue the confirmation that you seek with reference to Regulation 15(1) (b) of the Immigration ( European Economic Area) Regulations 2006.
In making the decision to refuse your application consideration has been given to the following:
Passport
Marriage certificate
Birth certificate
HMRC letters
Self assessment form
Tax return
Bank statement
Tax credit form
Supporting documents
As you appear to have to alternative basis to stay in the UK you should now make arrangements to leave. If you fail to do so voluntarily your departure may be enforced. In that event we would first contact you again and you would have a separate opportunity to make representations against the proposal removal. Help and advice on returning home can be obtained from the UK Border Agency on …tel…
…………………………
Your documents have been retained and responsibility for your case to has now been passed to your regional case ownership unit/local immigration team.
………………
If you appeal you do not have to leave the UK while the appeal is in the progress.
…………………………………………….

Posted: Sun Oct 23, 2011 12:08 pm Post subject:

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What's urgent about a free application that can be made again at any time? I don't understand your need for urgency.

If you have a current divorce case ongoing, then I take it that you have legal advice already. Talk to your lawyer about how to go about getting the required documents.

The child is being cared for by you. If the child is at school (and she will be an EU citizen), it strengthens your right to be in the UK.

As divorce proceeding have started, you should be able to apply as a person who has retained residence. Technically, you can't do this until you are actually divorced, which is a bit daft.

I don't think your employer will be able to do much to help with this.

Launching an appeal will buy you time. Speak to your legal advisers.

Technically you can apply again. You would just state that they have your passport. If you simply submit the same thing as before, it is not likely to change the result.

Are your husband and you both in the UK? You need to approach a UK lawyer to help you with your immigration problems. UKBA are being a little disingenuous; they will have seen your husband's original passport when you applied for a residence card (and you have a copy). A Uk court could force your husband to provide you with evidence that he has been exercising treaty rights.

made_in_ussr wrote:--------------------------------------------------------------------------------

Are your husband and you both in the UK? You need to approach a UK lawyer to help you with your immigration problems. UKBA are being a little disingenuous; they will have seen your husband's original passport when you applied for a residence card (and you have a copy). A Uk court could force your husband to provide you with evidence that he has been exercising treaty rights.

Can you suggest any lawer? who can do all this from Monday till Wednesday?
What kind of court can make my husband to show his passport? Tribunal? or another one? I have no time for another one.
Yes, we are both in the UK, he lives some streets away from me... So if I ask for his passport on my knees-he will not give me and it is not enough-I have to have his bank statements , Tax reference smth and etc

hello, i was going through your posts, why don't you get a letter from the court stating you have the custody of your child who is obviously an eea national (polish citizen) and then put in a fresh application to retain your residence here in uk.

The parent with custody of a child retains a right of residence if the child qualifies as detailed in section 6.2 See regulation 10(4)

but i'm not really sure about this thats why you need to speak to a lawyer about retaining right of residence after divorce but having custody of a child. has your child started nursery yet? hope some other members would be able to advise you accordingly but once again seek the help of immigration lawyer.

I wrote an email to the Polish appeal cort asking them to send me a confirmation letter ASAP that I am during the divorce process, mention when the decision will take place and who has custody .
But I think even having this letter HO will ask me agin to show me my husband's documents.
it's a pity-I have just 3 working days on all this!

Posted: Sun Oct 23, 2011 4:44 pm Post subject: Re: HELP! refusal EEA4! i have time to appeal till Wednesday

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first of all, please do not worry as much as you seem to. The threat of your removal is underlying but not imminent and not yet legal!

You have several basis to consider of staying in the UK.
1) The one you applied under- PR card application. Let's assume that your evidence is patchy and you do not manage to get all the evidence to prove that throughout the 5 years your husband CONTINUOUSLY resided (save for 6 months per year) and exercised treaty rights. Let's assume you fail to qualify under that provision (15(1)(f) 2006 Regs) and will not win the appeal (still debatable and I will come to that shortly).

Do not worry, depending on the current facts, you may be eligible to remain in another capacity.

2) When does your current Residence Card expire? Your aim is to remain in the UK? See if the following applies:
Until the actual divorce, you are still considered married for the purposes of Regulations 2006 (and of the Directive 2004/3, regardless of whether you are physically living apart! Therefore, if your husband is still in the UK and exercising treaty rights (working, self-employment etc). then until the actual divorce, you qualify under Regulation 14(2) 2006 Regs for the extended right of residence.

If so, you cannot be removed AT ALL!!!! So, you better hope that your husband is currently exercising treaty rights, if he is, then you would appeal your removal on the grounds above and this ground is easier to prove as what would matter is that he is exercising treaty rights at the time of decision to remove you.

3) suppose you divorce, then the same would apply as in 2, all you would have to show is that at the time of the initiation of divorce through to its finalisation, your husband exercised treaty rights. It wouldn't matter that he had breaks throughout 5 years before then! All that matters for that particular right is that underlined bit! So, again UKBA couldn't remove you cause you would qualify under 10(5)(a)-(d) Regs 2006.

4) Regulation 10(4) Regs 2006 Regarding your child custody query...this is undecided until the court makes a Residence Order in your favour. In addition, even if this is so, the child would have to attend an educational establishment and I doubt that nursery could fall under that.

5) There is also the possibility to use the "Chen" ruling once you get the Residence Order and your child being an EEA national, he/she would live in the UK as self-sufficient through you, the primary carer (I stand corrected on this one). You would need Comprehensive Sickness Insurance for you both as well under this route.

So, all in all, all is not that bad! Yes, you may not qualify for PR now, but you may still live in the UK for so long as your husband is also here and exercising treaty rights WHILE you are married or when you divorce he HAD been exercising treaty rights before and during the process of divorce.

If I think of anything else, I will let you know, but from the info as I understood it, it seems not as gloomy and you won't be removed as easily as the UKBA would like you to think! RELAX please!

As regards your appeal, if you genuinely know that you qualify and can detail to the First Tier Tribunal the info with some supporting evidence (and possibly asking them to request your husband to attend, I think they have the power to call people in to give evidence under their procedure rules) then you may also qualify for PR and get it. If not, as I said, you are not required to leave, it is not "all or nothing situation" so if you don't get the PR it doesn't mean you don't qualify otherwise. Lucapooka's comment was laconic and correct, he just didn't expand on it!

Good luck and let us know how your appeal goes.

made_in_ussr wrote:by the way, my residence card isnt expired yet. it is till 24/11/2011. thats why i was shocked that i am legally here and they have taken my passport with a RC and announced that i have to be departured!!

Directive/2004/38/EC wrote:Relax and breath deeply. There are a lot of good options.

You will need to appeal the decision and provide as much evidence as you can that supports your position.

This is yet another, but not a quick, option: Does your husband have permanent residence in the UK? If so you can "Register" the UK born child as a British Citizen using form MN1. You then also have an option to stay on the basis of the Zambrano decision, as the carer of a minor British citizen