PR refused

Richard W wrote: ↑

Mon Sep 25, 2017 10:54 pm

Carling40 wrote: ↑

Mon Sep 25, 2017 5:42 pm

On the second refusal reason however, I'm not aware of any changes in the regulations that make it mandatory to provide evidence of identity for an ex-spouse when there is decree absolute present (if anyone has it please share).

Regulation 21(5), offset by Regulation 42. (Has someone a warped sense of humour?)

@Richard W, if you don't have anything useful or constructive to assist the OP i suggest you shouldn't confuse matters for the OP. I've clearly pointed out there has been no change in the EEA regulations that ''mandates a divorced spouse to produce evidence of identity where they are already divorced'' regulation 42 is about alternative evidences of identity which the SSHD can accept. The OP's EEA spouse identity has already been established in a previous application hence Regulation 42 does not apply here.
It is widely accepted as unreasonable to request a divorced spouse to provide their ex's evidence of identity as this might put someone at risk for example in domestic violence situation.

You've offered no direction or guidance to the OP regarding what steps can be taken but have the cheek to say someone else has a warped sense of humour which is simply disrespectful to say the least.
If you have nothing positive and helpful to the OP or relevant knowledge to share, you're advised to say nothing and find something to do with your free time and show some respect to other people.

Carling40 wrote: ↑

Wed Sep 27, 2017 6:19 pm

@Richard W, if you don't have anything useful or constructive to assist the OP i suggest you shouldn't confuse matters for the OP. I've clearly pointed out there has been no change in the EEA regulations that ''mandates a divorced spouse to produce evidence of identity where they are already divorced'' regulation 42 is about alternative evidences of identity which the SSHD can accept. The OP's EEA spouse identity has already been established in a previous application hence Regulation 42 does not apply here.

Carling40, I think Richard W is trying to be helpful, although his pedantic and terse manner of presentation may not suggest that.

As I understand it, unlike applications under the UK Immigration Rules, which are seen as progressions in a series of applications made in the past, EEA route applications are standalone applications that are a snapshot of the time when the application was made. Therefore, each application by the same person is treated as a separate, independent application with no reference to any prior application. Each application must be evidenced and proven independently of the evidence of any earlier application.

It is a common mistake on these forums that all Home Office applications work in similar manner. The UK Immigration Rules and EEA regulations work in completely different ways because the underlying systems of law (UK law based on common law and EU law based on civil law) are entirely different.

Carling40 wrote: ↑

Wed Sep 27, 2017 6:19 pm

Richard W wrote: ↑

Mon Sep 25, 2017 10:54 pm

Carling40 wrote: ↑

Mon Sep 25, 2017 5:42 pm

On the second refusal reason however, I'm not aware of any changes in the regulations that make it mandatory to provide evidence of identity for an ex-spouse when there is decree absolute present (if anyone has it please share).

Regulation 21(5), offset by Regulation 42. (Has someone a warped sense of humour?)

@Richard W, if you don't have anything useful or constructive to assist the OP i suggest you shouldn't confuse matters for the OP. I've clearly pointed out there has been no change in the EEA regulations that ''mandates a divorced spouse to produce evidence of identity where they are already divorced''

Regulation 21(5) is new.

Carling40 wrote: ↑

Wed Sep 27, 2017 6:19 pm

...regulation 42 is about alternative evidences of identity which the SSHD can accept.
The OP's EEA spouse identity has already been established in a previous application hence Regulation 42 does not apply here.

I'll accept that that is new. I hadn't realised it was the old Regulation 29A. Are you saying that it doesn't apply to evidence of identity of sponsors? The wording strongly suggest that it should apply to the requirement to produce of an ex-spouse's passport or ID card. Or would it's use rely on the ex-spouse not being able to have a national ID card?

Carling40 wrote: ↑

Wed Sep 27, 2017 6:19 pm

You've offered no direction or guidance to the OP regarding what steps can be taken but have the cheek to say someone else has a warped sense of humour which is simply disrespectful to say the least.

I am giving the Home Office the respect that is due to them.

It might be helpful to say at this point it'll be helpful to look at my posts on the forum to understand that my comments aren't formed on theory but based on practice and personal experience as i've been through a similar journey.
When an application is submitted under the EEA regulations for a residence card, the SSHD has to establish the identity of the EEA sponsor and exercising of treaty rights and identity of any family members included. That has always been the case and that is accepted.
The OP in this case was issued a residence card confirming their rights as a family member for a period of over 5 years and is now divorced from sponsor.
As the OP has been a family member for over 5 years and on the assumption the EEA sponsor was exercising treaty rights for the 5 year period, the OP has acquired permanent residence status.
As the OP would like evidence of PR status, they can submit an application for PR with
1.OP evidence of identity
2.Decree absolute
3.5 years treaty rights of ex spouse till decree absolute
4. As a fail safe include OP evidence of working after issue date of decree absolute
5.clearly tick the box in the form why OP isn't providing a passport photo for their ex because they are divorced. There is a reason why this box is there
6. a cover letter explaining why there is no ID of ex submitted. we are divorced and not amicable, hence it cant be provided due to circumstances beyond his control i.e divorce.
if you've been through a divorce you'll know its not a joke.

I accept although an application for PR is a new application, it nonetheless stems from the previous application for a residence card as a family member with the same family member. I would understand an insistence by SSHD on evidencing the identity of the ex EEA sponsor only if the sponsors identity had previously not been established, however that is not the case.

Hence, the OP has every right to proceed and if the SSHD should refuse for the sole reason of not providing proof of ex's ID (when previously established in EEA 2) then it should be challenged in court, as it's unreasonable to put such burden on the OP and the regulations make no such requirements when theres been a divorce.

I strongly believe, the main reason for this refusal was due to the submission being to early as the OP hadnt completed the 5 years before the application was submitted and the evidence of ex identity a smoke screen.

I'm not here to give respect to the HO, but to give back to a forum that gave to me when i needed help.

Retained rights guidence
Decision making: permanent residence
where the applicant has a retained

right of residence

This page tells you how to consider applications from family members of European Economic Area (EEA) nationals applying for documents to confirm they have a permanent right of residence in the UK. Including where part of their residence in the UK has been on the basis of a retained right of residence.

Requirements of regulation 15 of the 2016 regulations

Regulation 15(1)(f) of the regulations states that someone will have a permanent right of residence in the UK if they:

have lived in the UK in line with the 2016 regulations for a continuous period of 5 years

have a retained right of residence at the end of the 5 year period You must make sure that they:

met the conditions of being the family member of an EEA national who is exercising free movement rights in the UK prior to retaining a right of residence

met the conditions of regulation 10 at the time of their change in circumstances

continued to meet the conditions of regulation 10(6) until the end of the 5 year period of residence

Where the applicant has already been issued a document confirming they have a retained right of residence, they would only need to show that they continue to meet the conditions in regulation 10(6). This means showing they are a worker, self- employed person or self-sufficient person and that they have resided in the UK for a continuous period of 5 years.

It is not necessary for the applicant to show that, following divorce, the EEA national has continued to be a qualified person.

For information on the conditions that must be met to be considered a family member of an EEA national who is exercising free movement rights, see related links:

Free Movement Rights: Direct family members of EEA nationals

Extended family members of EEA nationals

Valid proof provided to show they meet the conditions of regulation 15(1)(f)

If the applicant has provided sufficient evidence, then you must issue either a:

• document certifying permanent residence to EEA nationals

• permanent residence card to non-EEA nationals


Regulation 10(9)

(9) A family member who has retained the right of residence ceases to enjoy that status on acquiring a right of permanent residence under regulation 15.
Regulation 15,
—(1) The following persons acquire the right to reside in the United Kingdom permanently—
a person who—
(i)has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii)was, at the end of the period, a family member who has retained the right of residence.



Regulation 19

(2) The Secretary of State must issue a person who is not an EEA national who has a right of permanent residence under regulation 15 with a permanent residence card no later than six months after an application is received and the production of—
(a)a valid passport; and
(b)proof that the person has a right of permanent residence.


Regulation 21(5)
(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national.
(6) Where—
(a)there are circumstances beyond the control of an applicant for documentation under this Part; and
(b)as a result, the applicant is unable to comply with the requirements to submit an application online or using the application form specified by the Secretary of State,
the Secretary of State may accept an application submitted by post or in person which does not use the relevant application form specified by the Secretary of State.



Thats all i found in EEA regulation about pr applications after retained rights.
Strange thing is that ho don't want treaty rights from ex after divorce.
And i am still unable to understand the word (was a family member of an EEA national) in regulation 21(5)

It is totally contradiction of home office

Carling make a logical and valid point, but the problem is the failure of the government in their obsession and war with EEA nationals and their family member.

There is no doubt in my mind that regulation 21(5) has no basis in law. It is unlawful, plain and simple.

However the offending regulation has been designed in such a way, that the people who they refuse on this basis will have no right to challenge their decision in court.

However when challenge of JR is made, they have withdrawn two decision i was associated with in regards to this matter. In the case of the 3rd, I directly filed a notice of appeal to the Tribunal, arguing that a right of appeal exist in law, especially EU law, and that the court must hear it, and the Tribunal has accepted Jurisdiction.

My headache is, if UKVI knows what they are doing is wrong, why are they doing it, makes no sense.

Obie wrote: ↑

Thu Sep 28, 2017 12:18 am

There is no doubt in my mind that regulation 21(5) has no basis in law. It is unlawful, plain and simple.

Obie, can I ask you to expand on why you think the regulation is unlawful?

I reread Directive 2004/38/EC and I do not find anything in Article 10, which deals with the issuance of Residence Cards, to exempt people holding RoR from any documentary requirement for their Residence Card.

In other words, in the Directive, there is no distinction between the documentary proof required from a family member of an EEA citizen and an ex-family member of an EEA citizen.

Can you point to the relevant case law that is contraindicative of that interpretation?

As an aside, good to see you back on these forums. We have seen a hemorrhage of moderators on these forums in the past year and somebody of your stature would be greatly missed.

I’d argue justifiably that a divorce from an ex spouse where there’s no amicability constitutes as “grounds beyond control” to provide evidence of identity. The key is to be make it clear the relationship has broken down and there’s no contact.
It’s like asking someone who’s been in a domestic violence situation to provide such information which may put them at risk.
It’s obvious this is part of the continued “hostile environment “ being carried out by the SSHD. The recourse has to be decision by the court. If the OP states the facts clearly they should be fine as it’s clear the rights exists.
I have also seen applications granted recently in similar cases, so I don’t think it’s a blanket no no, but hopeful you don’t have a cretin as a caseworker. I’d also expect such refusals to have a right of appeal

secret.simon wrote: ↑

Thu Sep 28, 2017 7:40 am

As an aside, good to see you back on these forums. We have seen a hemorrhage of moderators on these forums in the past year and somebody of your stature would be greatly missed.

Thanks Simon, good to know i was missed. However with people like you still around, i am sure our members are in more than capable hands. My extended absence now or in the future will never be missed. Thanks anyway for the very kind words.

Under Article 10 of the Directive, there are specific documents requested, however the EEA passport is not required, instead a registration certificate is required.

In regards to your question, the tribunal said as follows in Barnett:

19. Whose passport is referred to in regulation 17(1)(a) and (2)? Given that, throughout the Regulations, proof of the identity of an EEA national can be given, either by means of a valid ID card or a passport, it is, I consider, clear that the passport in question is only that of the family member who is making application under regulation 17. There is nothing in Article 10 of the Citizens Directive (issue of residence cards) that requires or even suggests a contrary interpretation.

20. As we have already seen, the Secretary of State, in her grounds of application, and the First-tier Tribunal, in its grant of permission, expressly identified the requirement in regulation 17(1)(a) to produce a valid passport as applying in the present appeals to the passport of the first respondent’s husband. But the above analysis makes plain that, even if regulation 17 did apply to the present appeals (which, as I shall explain, it does not), the Secretary of State cannot point to regulation 17(1)(a) as constituting a requirement for the respondents to produce Mr Bialochowski’s passport.

Hello Everybody
Just and update on my case.
Today my solicitor informed me that the HO had yet again refused my visa application on the basis that my ex wife id was not provided. However what i did provide was, a photocopy of her driver license and also copies of emails i sent her asking for her passport, and my ex wife response to the email where she rudely refused to help.
My solicitor advised I send a few more emails to my ex wife, and we add those to the application and reapply hoping that a more "experienced" person deals with this new application.
he insisted this method have worked for some of his clients in similar circumstances, and he would like to try that before going the Judicial Review route. Do you agree this is the best option?

You do have an appeal right and you did from the last refusal. Had you exercised it , it is likely you may have got a favourable refusal.

I am of the view that the steps your lawyer is seeking to take is a complete waste of time.

psuch2 wrote: ↑

Mon Feb 26, 2018 3:30 pm

Hello Everybody
Just and update on my case.
Today my solicitor informed me that the HO had yet again refused my visa application on the basis that my ex wife id was not provided. However what i did provide was, a photocopy of her driver license and also copies of emails i sent her asking for her passport, and my ex wife response to the email where she rudely refused to help.
My solicitor advised I send a few more emails to my ex wife, and we add those to the application and reapply hoping that a more "experienced" person deals with this new application.
he insisted this method have worked for some of his clients in similar circumstances, and he would like to try that before going the Judicial Review route. Do you agree this is the best option?

You should exercise your right of appeal and have your day in court. Did you not appeal your previous refusal?

No I haven't, my solicitor decided to apply again with a cover letter explaining the issue. Just before the Coa arrived he told to write an email to my ex wife asking for her passport, he then sent a copy of the email and my ex response, where she refused to help.
This time around he asked me to send three more emails to her, and he is going to apply again with the additional emails.
The main reason I agreed to it is because he is not gonna charge me to reapply. I honestly cannot afford any more solicitors fees right now.
I am not confident enough to appeal on my own.

psuch2 wrote: ↑

Sun Mar 04, 2018 4:04 am

No I haven't, my solicitor decided to apply again with a cover letter explaining the issue. Just before the Coa arrived he told to write an email to my ex wife asking for her passport, he then sent a copy of the email and my ex response, where she refused to help.
This time around he asked me to send three more emails to her, and he is going to apply again with the additional emails.
The main reason I agreed to it is because he is not gonna charge me to reapply. I honestly cannot afford any more solicitors fees right now.
I am not confident enough to appeal on my own.

You’re best advised to appeal the decision if you still have a right of appeal. You can appeal on papers which I think is faster than oral and all the correspondence goes to the judge to decide. I think it costs £80 or so for a paper appeal and you don’t need a lawyer.

UPDATE

I received a call from my solicitor this morning. PR was granted by the Home Office, he received all the documents and PR card this morning.
The decision came just a week after I requested my passport to be returned.
I would like to thank everyone is this forum that has given me advice and helped me along the way. I will be eternally grateful to you all.

Hi Psuch2

Congratulation.
Can you please help others what letter you have to the home office and replied from your ex. Also if you can introduce your solicitor to us.

We will be grateful.

psuch2 wrote: ↑

Wed Jun 06, 2018 12:31 pm

UPDATE

I received a call from my solicitor this morning. PR was granted by the Home Office, he received all the documents and PR card this morning.
The decision came just a week after I requested my passport to be returned.
I would like to thank everyone is this forum that has given me advice and helped me along the way. I will be eternally grateful to you all.

bisiobe wrote: ↑

Wed Jun 06, 2018 7:41 pm

Hi Psuch2

Congratulation.
Can you please help others what letter you have to the home office and replied from your ex. Also if you can introduce your solicitor to us.

We will be grateful.

Members are not permitted to name or state information regarding solicitors.

Oh
So sorry. I didn't know that.

Thank

bisiobe wrote: ↑

Wed Jun 06, 2018 7:41 pm

Hi Psuch2

Congratulation.
Can you please help others what letter you have to the home office and replied from your ex. Also if you can introduce your solicitor to us.

We will be grateful.

psuch2 wrote: ↑

Wed Jun 06, 2018 12:31 pm

UPDATE

I received a call from my solicitor this morning. PR was granted by the Home Office, he received all the documents and PR card this morning.
The decision came just a week after I requested my passport to be returned.
I would like to thank everyone is this forum that has given me advice and helped me along the way. I will be eternally grateful to you all.

Hello

Take a minute to read my previous posts, you will have a good idea of the drama my application was.
On my last application my solicitor asked me to email my ex parter on three different occasions, and for every email I sent her she replied in a very rude manner, I was then asked to print them out and send them to my solicitor to be included in the application. Another option the solicitor gave me was to write her a letter by special delivery so he had confirmation she received it.
Of course all other evidence was included in the application. For example, I didn't have any of her payslips, but I contacted her employers and the majority of them were happy to give me a letter confirming she worked for them. For prof we have lived together, I managed to get a letter from the local council confirming we both paid council tax for the period of time we lived together.
I hope it helps, but have another read through the whole post, there is some sound advice there.
Good luck to you, never loose faith!

Congrats and as your footnote message said.

No Matter How Long Winter Is, There's Always Spring Time Ahead.


It works for you though.

Wise wrote: ↑

Mon Sep 25, 2017 1:16 am

Try all posible means to get the ID, if you make another PR application it will still be the same outcome. HO did it to disrupt people's live and nothing you can do now unless you provide it.

Is your ex not in UK anymore or?

@ Wise...i don't think that's true because have seen cases from friends and read it here too where ex id is not provided and PR was granted. Because if you re saying you re divorced and not in good terms with your ex..how did they expect you to get the id.

each cases with different outcomes. Divorce with domestic violent will win in one attempt with good documentation even without EU ex ID in my opinion but again HO is above person applying but only the court will make it right most times.



Did you read the op thread at all? even see how many times the op tried. So not a blank yes am afraid.They want the legal team out there to cash their share.

Thank you so much.

psuch2 wrote: ↑

Thu Jun 07, 2018 9:16 am

bisiobe wrote: ↑

Wed Jun 06, 2018 7:41 pm

Hi Psuch2

Congratulation.
Can you please help others what letter you have to the home office and replied from your ex. Also if you can introduce your solicitor to us.

We will be grateful.

psuch2 wrote: ↑

Wed Jun 06, 2018 12:31 pm

UPDATE

I received a call from my solicitor this morning. PR was granted by the Home Office, he received all the documents and PR card this morning.
The decision came just a week after I requested my passport to be returned.
I would like to thank everyone is this forum that has given me advice and helped me along the way. I will be eternally grateful to you all.

Hello

Take a minute to read my previous posts, you will have a good idea of the drama my application was.
On my last application my solicitor asked me to email my ex parter on three different occasions, and for every email I sent her she replied in a very rude manner, I was then asked to print them out and send them to my solicitor to be included in the application. Another option the solicitor gave me was to write her a letter by special delivery so he had confirmation she received it.
Of course all other evidence was included in the application. For example, I didn't have any of her payslips, but I contacted her employers and the majority of them were happy to give me a letter confirming she worked for them. For prof we have lived together, I managed to get a letter from the local council confirming we both paid council tax for the period of time we lived together.
I hope it helps, but have another read through the whole post, there is some sound advice there.
Good luck to you, never loose faith!

Wise wrote: ↑

Thu Jun 07, 2018 5:51 pm

Congrats and as your footnote message said.

No Matter How Long Winter Is, There's Always Spring Time Ahead.


It works for you though.

My spring certainly came. I was about to give up, absolutely everything is my life has gone wrong so far this year. Broke my foot early this year, lost my job because of it, almost became homeless because no one wanted to even interview me for a job with just a COA. When I thought that that was it, I am done. A light at the end of tunel sparks. Everything will be alright now, I will soon be back on my feet, and everything will fall into place eventually.
I really apreciate the time you took to comment in my posts. Thank you!