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PR Non-EEA family member of EEA

Use this section for any queries concerning the EU Settlement Scheme, for applicants holding pre-settled and settled status.

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omaral
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PR Non-EEA family member of EEA

Post by omaral » Thu Oct 22, 2015 9:51 pm

Hi All

I am Dutch and my wife is Iraqi, joined me in the UK in 2008 on a UK Entry Clearance Visa EEA FP: Family Member

Then we applied for Residence Card which we received and was valid from 12-Aug-2009 to 12-Aug-2014

We made a mistake and applied directly (Feb-2015) for Naturalisation and the application was refused and asked for Reconsideration and again it was refused for the reason:-

“As you have been unable to provide evidence of your spouse exercising treaty right in the United Kingdom for a continuous period of 5 years, you do not meet the requirement which set out on our website at http://www.gov.uk/becoming-a-british-citizen and your application has been refused”


So now we are thinking of applying for PR, but not sure if our case been refused because of us claiming any benefits? Tax Credits, Child Benefit and or Housing Benefit?

I have been Employed with Pay-Slips, Self-Employed or for some time Job-Seeker.

So what can my wife now apply for? Her Residence Card expired Aug-2014

We are worried

Obie
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Re: PR Non-EEA family member of EEA

Post by Obie » Thu Oct 22, 2015 9:55 pm

Challenge them by means of a Pre action protocol.

There is no basis for the refusal if you exercised treaty rights for 5 years.

You need to explain your case properly.

What did you do from 2008. Naturalisation fee is a lot to loose . If you have working all through and explain that your fee absence was due to job seeking, then no basis exist for the refusal.
Smooth seas do not make skilful sailors

omaral
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Re: PR Non-EEA family member of EEA

Post by omaral » Thu Oct 22, 2015 11:57 pm

Thanks for your quick reply, what is pre action protocol?

I have been Employed, Self Employed and there was a period when I was on jobseekers.

Both our kids were born here, one in 2010 and the other in 2013

HomeOffice wanted the extra evidence they requested to be with them on Easter Monday when we asked for extension.

So not sure if they refused the case because the documents arrived late?

But they sent everything back, when we asked them to review the case again and sent them every thing again and paid £80 for the case to be reviewed they still kept their decision and said the same thing again!

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Re: PR Non-EEA family member of EEA

Post by Obie » Fri Oct 23, 2015 12:05 am

Pre action is a step towards legal action.

I dont know the quality of evidence you provided, but given what you said, it seems they were wrong to refuse.n
Smooth seas do not make skilful sailors

omaral
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Re: PR Non-EEA family member of EEA

Post by omaral » Sun Oct 25, 2015 4:05 pm

Obie wrote: I dont know the quality of evidence you provided, but given what you said, it seems they were wrong to refuse.n
Sent all original documents including:-
- Business Bank accounts
- Reference from agency's that I have worked for
- Full Employment History
- Tax Credit Award Letters
- Child Benefit Letters
- National Insurance Contribution Letters from HMRC
- Self Assessment Letters / Statement
- Job Centre Plus Letters
- PaySlips
- P45

Obie
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Re: PR Non-EEA family member of EEA

Post by Obie » Sun Oct 25, 2015 4:07 pm

Then i am of the view that action ought to have been taken as you appear to have qualified.
Smooth seas do not make skilful sailors

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Re: PR Non-EEA family member of EEA

Post by kabuki » Sun Oct 25, 2015 8:45 pm

There are additional requirements when self-employed and looking for work. It seems like you have the jobcentre registration covered for when you were looking for work, but when you are self-employed, you have to have comprehensive sickness insurance for you and all of your dependents, otherwise you aren't considered as exercising your treaty rights.

Also, from what I understand, it's usually recommended to apply for PR first. It's cheaper and has the same eligibility requirements as naturalisation. (I think. Someone correct me if I'm wrong.)

omaral
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Re: PR Non-EEA family member of EEA

Post by omaral » Sun Oct 25, 2015 11:19 pm

kabuki wrote:There are additional requirements when self-employed and looking for work. It seems like you have the jobcentre registration covered for when you were looking for work, but when you are self-employed, you have to have comprehensive sickness insurance for you and all of your dependents, otherwise you aren't considered as exercising your treaty rights.

Also, from what I understand, it's usually recommended to apply for PR first. It's cheaper and has the same eligibility requirements as naturalisation. (I think. Someone correct me if I'm wrong.)
So as a European you are not exercising treating rights when working or self-employed unless you have comprehensive sickness insurance? Where can I read about that?

My question is: If we did need the comprehensive sickness insurance why was this not made clear when we applied for wife's entry clearance or Residence Card? If receiving any benefit would that be counted against me exercising treaty rights?

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Re: PR Non-EEA family member of EEA

Post by noajthan » Sun Oct 25, 2015 11:30 pm

You can read about the various categories of qualified person in this HO guidance:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf

You will note it is in fact self-sufficient persons & students (& any dependent family members) who are required to hold CSI;
ie in order to be considered as exercising treaty rights.
Ref page 42+
Last edited by noajthan on Sun Oct 25, 2015 11:34 pm, edited 1 time in total.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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Re: PR Non-EEA family member of EEA

Post by Obie » Sun Oct 25, 2015 11:33 pm

kabuki wrote: It seems like you have the jobcentre registration covered for when you were looking for work, but when you are self-employed, you have to have comprehensive sickness insurance for you and all of your dependents, otherwise you aren't considered as exercising your treaty rights.

Also, from what I understand, it's usually recommended to apply for PR first. It's cheaper and has the same eligibility requirements as naturalisation. (I think. Someone correct me if I'm wrong.)

The above comment is not consistent with the law.
Smooth seas do not make skilful sailors

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Re: PR Non-EEA family member of EEA

Post by omaral » Sun Oct 25, 2015 11:43 pm

So CSI(Comprehensive Sickness Insurance) is only for Self Sufficient or Students?

We are really worried about our situation, Home Office said there is nothing against my wife status on their system if she would leave the UK and enter again.

Her Iraqi passport going to expire April-2016, to get a new passport it would take six months. :(

The solicitor said Judicial Review would cost a lot of money. :(

Worried if I should now apply for PR then get her a new passport and then transfer the PR into the new passport. :(

Yes, I am very sad.

Obie
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Re: PR Non-EEA family member of EEA

Post by Obie » Sun Oct 25, 2015 11:46 pm

Well the lawyer could wrote a letter to the citizenship people and challenge the refusal of naturalisation, but he seems a bit lazy.

As I said before, based on the evidence you claimed to have presented, the refusal seems unlawful.
Smooth seas do not make skilful sailors

omaral
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Re: PR Non-EEA family member of EEA

Post by omaral » Mon Oct 26, 2015 12:35 am

Obie wrote:Well the lawyer could wrote a letter to the citizenship people and challenge the refusal of naturalisation, but he seems a bit lazy.

As I said before, based on the evidence you claimed to have presented, the refusal seems unlawful.
Well I will see what I can get from him tomorrow, but many thanks for your help.

The below was on the last letter from the Home Office letter to the lawyer.

The Immigration( European Economic Area) Regulations provide that those having only a conditional right of residence in the UK under European law - such as a worker or a student - and their dependants - are not to be considered for the purpose of naturalisation as free from any restriction on their stay here under the immigration laws.

Your client was issued with a residence permit on 12 August 2009 valid until 12 August 2014 as the dependant of a European Economic Area (EEA) national in the UK in exercise of his Treaty Rights as a worker. As such, she is regarded as being subject to a restriction on her stay until she has either become permanently resident under European law or been granted indefinite leave to remain here in some other capacity.

As you your client has been unable to provide evidence of your spouse exercising treaty right in the United Kingdom for a continuous period of 5 years, you do not meet the requirement which set out on our website at m http://www.gov.uk/becoming-a-british-citizen and her application has been refused

While there is no legal requirement for your client to do so, she may wish to submit a formal application for permanent residence by contacting:
Home Office - EEA Applications
PO Box 590
Durham
DH99 1AD

A decision to refuse an application for citizenship can only be reversed where it is clear that the original decision was not taking in line with the law and prevailing policy. I am satisfied that your client's application was decide correctly in line with the law and our policy and it cannot be re-opened.

If your client still wishes to become a British citizen, she must make a fresh application for naturalisation. I cannot say what the outcome will be as this will depend upon our enquiries taken at the time to ensure that all the requirements are met. She is advised to ensure that she is free from any restriction on her stay here under the immigration laws before making a fresh application.

Your sincerely,
C. G***roy
Permanent Migration
UK Visas and Immigration


So what do you get out of that? what restriction are on my wife?

omaral
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Re: PR Non-EEA family member of EEA

Post by omaral » Mon Oct 26, 2015 12:57 pm

She is advised to ensure that she is free from any restriction on her stay here under the immigration laws before making a fresh application.
Could it be that the Home Office did not count the residence of my wife from 2008? She landed here on Aug-2008 but did not receive her Residence Card till Aug-2009

From 2008-2013 is five years then 2013-2014 is another year to be from Immigration restrictions, so that would have been Aug-2014 if counting 2008 as first year of her residence.

But since she only received the Residence Card on Aug-2009 that would be like:
Aug 2009 to Aug 2014: Five years then Aug 2014 to Aug 2015 to be free from restrictions.

In that way we should have applied in September 2015 and not Feb.2015

omaral
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Re: PR Non-EEA family member of EEA

Post by omaral » Sat Oct 22, 2016 11:12 am

Hello all,

Application for my wife was refused, we received the letter today. So we made the application about seven months ago and today we received everything, all the evidence.

They refused the application on the ground that I did not pay National Insurance Contribution or Income Tax and the time that I was Jobseeker, they say there is no evidence of me been active seeking work.

Though I have always paid the National Insurance Contribution class2, would their refusal based on me not paying income tax correct decision?

Also, they are holding into her passport as they want to arrange deportation.

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Re: PR Non-EEA family member of EEA

Post by noajthan » Sat Oct 22, 2016 12:08 pm

omaral wrote:Hello all,

Application for my wife was refused, we received the letter today. So we made the application about seven months ago and today we received everything, all the evidence.

They refused the application on the ground that I did not pay National Insurance Contribution or Income Tax and the time that I was Jobseeker, they say there is no evidence of me been active seeking work.

Though I have always paid the National Insurance Contribution class2, would their refusal based on me not paying income tax correct decision?

Also, they are holding into her passport as they want to arrange deportation.
Have you been paying tax?
How about NI when selfemployed?
What evidence did you present as a jobseeker?

Absence of paying tax (/NI) may be a trigger for further investigation as to whether the work was genuine and effective but should not lead directly to automatic refusal.
There is no requirement to pay UK tax/NI under EU law, only that the work is genuine and effective rather than marginal and supplementary.

You can see how caseworker would weigh up and assess your case in HO guidance, here:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- ref page 12+ regarding tax

For time as a jobseeker, yes evidence of actively seeking work is required.

Date of issue of any RC is irrelevant; qualifying period runs from latest of:
  • arrival in UK;
    date of marriage;
    sponsor starting to exercise treaty right (if not settled);
All that is gold does not glitter; Not all those who wander are lost. E&OE.

omaral
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Re: PR Non-EEA family member of EEA

Post by omaral » Sat Oct 22, 2016 1:13 pm

noajthan wrote:
Have you been paying tax?
How about NI when selfemployed?
What evidence did you present as a jobseeker?
No, did not pay Income Tax as did not reach that threshold.

Yes, Paid National Insurance contribution, evidence as direct debit was collected from bank, so enclosed bank statement, Employment History from HMRC and National Insurance Contribution History from HMRC.

Sent letter from JobCentre Plus with dates that I was receiving Jobseeker Allowance.
Absence of paying tax (/NI) may be a trigger for further investigation as to whether the work was genuine and effective but should not lead directly to automatic refusal.
There is no requirement to pay UK tax/NI under EU law, only that the work is genuine and effective rather than marginal and supplementary.

You can see how caseworker would weigh up and assess your case in HO guidance, here:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- ref page 12+ regarding tax

For time as a jobseeker, yes evidence of actively seeking work is required.

Date of issue of any RC is irrelevant; qualifying period runs from latest of:
  • arrival in UK;
    date of marriage;
    sponsor starting to exercise treaty right (if not settled);
2005 - Arrival from Holland
2005 - 2007 Employed, which I included letter from agency in our application.
2008-2010 Self-Employed and part on Jobseeker
2010-2014 Self-Employed
I was employed for seven months of 2014
Then Self-Employed party of 2014-2015
Then Employed since Mar-2016

What option(s) do we have now?

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Re: PR Non-EEA family member of EEA

Post by noajthan » Sat Oct 22, 2016 3:04 pm

You need to show your work was genuine and effective;
you need to prove you were a jobseeker; being registered is a start but evidently not enough.
Being a jobseeker and self-employed together may be problematic.

Failing that you need to be a qualified person now to restart PR clock and give both you and wife a basis to remain in UK.

If you cannot obtain proof of PR (DCPR & PRC) suggest you apply for RCs to confirm your statuses; especially with all this wild talk of Brexit.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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Re: PR Non-EEA family member of EEA

Post by omaral » Sat Oct 22, 2016 3:45 pm

noajthan wrote:You need to show your work was genuine and effective;
you need to prove you were a jobseeker; being registered is a start but evidently not enough.
Being a jobseeker and self-employed together may be problematic.
Thanks for your help.

Failing that you need to be a qualified person now to restart PR clock and give both you and wife a basis to remain in UK.
I do not understand what you mean?
If you cannot obtain proof of PR (DCPR & PRC)
Proof PR for whom? Me or my wife? and how? What is DCPR&PRC?
suggest you apply for RCs to confirm your statuses; especially with all this wild talk of Brexit.
So should I as Dutch apply first for Residence Card(RC)?

What is the most easy way to get any status for my wife and get her passport back, our son of five months is without a passport since the Dutch embassy require both parents passports.

If I get another part-time job, or change to full time job, would it make any difference? Is there a minimum I need to earn?

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Re: PR Non-EEA family member of EEA

Post by omaral » Mon Oct 24, 2016 5:13 pm

Should I apply for RC? How can I get my wife any legal status in the UK?

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Re: PR Non-EEA family member of EEA

Post by noajthan » Mon Oct 24, 2016 5:31 pm

omaral wrote:
noajthan wrote:You need to show your work was genuine and effective;
you need to prove you were a jobseeker; being registered is a start but evidently not enough.
Being a jobseeker and self-employed together may be problematic.
Thanks for your help.

Failing that you need to be a qualified person now to restart PR clock and give both you and wife a basis to remain in UK.
I do not understand what you mean?
If you cannot obtain proof of PR (DCPR & PRC)
Proof PR for whom? Me or my wife? and how? What is DCPR&PRC?
suggest you apply for RCs to confirm your statuses; especially with all this wild talk of Brexit.
So should I as Dutch apply first for Residence Card(RC)?

What is the most easy way to get any status for my wife and get her passport back, our son of five months is without a passport since the Dutch embassy require both parents passports.

If I get another part-time job, or change to full time job, would it make any difference? Is there a minimum I need to earn?
Qualified person, one of:
  • worker;
    self-employed;
    student;
    self-sufficient;
    jobseeker;
DCPR - document certifying permanent residence (for EEA)

PRC - permanent residence card (for non-EEA)

Yes, if you and wife do not qualify for confirmation of PR yet then, assuming you can exercise treaty rights, suggest applying for RCs (1 each);
  • EEA (QP) for you;
    EEA (FM) for wife
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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Re: PR Non-EEA family member of EEA

Post by omaral » Thu Oct 27, 2016 5:40 pm

noajthan wrote: Yes, if you and wife do not qualify for confirmation of PR yet then, assuming you can exercise treaty rights, suggest applying for RCs (1 each);
  • EEA (QP) for you;
    EEA (FM) for wife
So can I use just one form EEA FM for both me(eea) and my wife(non-eea)? or we need to fill a separate form for each of us?

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Re: PR Non-EEA family member of EEA

Post by noajthan » Thu Oct 27, 2016 5:42 pm

omaral wrote:
noajthan wrote: Yes, if you and wife do not qualify for confirmation of PR yet then, assuming you can exercise treaty rights, suggest applying for RCs (1 each);
  • EEA (QP) for you;
    EEA (FM) for wife
So can I use just one form EEA FM for both me(eea) and my wife(non-eea)? or we need to fill a separate form for each of us?
If applying for RC (instead of DCPR/PRC) then use:
  • EEA (QP) for you - qualified person;
    EEA (FM) for wife - dependent
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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Re: PR Non-EEA family member of EEA

Post by omaral » Thu Oct 27, 2016 7:44 pm

noajthan wrote:
  • EEA (QP) for you - qualified person;
    EEA (FM) for wife - dependent
Thanks, found them.

Public funds (state benefits)
They are asking for amount and date we started receiving them on both application, does claiming any of the following benefits have any impact on our application(s)?
- Child Benefit
- Child Tax Credit
- Working Tax Credit
- Housing Benefit
- Council Tax Benefit

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Re: PR Non-EEA family member of EEA

Post by ohara » Thu Oct 27, 2016 11:23 pm

omaral wrote:
noajthan wrote:
  • EEA (QP) for you - qualified person;
    EEA (FM) for wife - dependent
Thanks, found them.

Public funds (state benefits)
They are asking for amount and date we started receiving them on both application, does claiming any of the following benefits have any impact on our application(s)?
- Child Benefit
- Child Tax Credit
- Working Tax Credit
- Housing Benefit
- Council Tax Benefit
As long as you are not claiming anything you are not entitled to, it won't have an effect. Legally you are not required to complete that section.

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