EEA4 refusal with right to appeal.

Hi guy, today my solicitor has sent my appeal.
Refusal reason:
I have not been a family member of EEA who continuously exercised treaty right for 5 years(which she has). You are married on 11/2008 and you are eligible for PR on 11/2013.
Regardless we have lived together over 5year(all documents were provided), he has looked atmarriage certificate (which is less than 5 years) and refused my application.
My layer says I shouldn't be worried and hopefully(she is quite certain:-o) we will win the case.
In the letter says you have to be a family member of EEA for 5 years, it doesn't say you have to be married for 5 years!!! So have I been a family member for 5 years( since we lived together) or what AM I:?:?

For this to be successful you would need to prove that you had already been living together in an unmarried partnership for the two years prior to the beginning of the five year period being claimed. If you wish to claim time before you were married as part of the five year residence period, you need to look at the beginning of the five year period, and then go back a further two years from that date, as that would then determine you were in a genuine unmarried partnership that qualifies as genuine residence.

From the time-line cited in your signature, your cohabitation with your partner in an interpersonal relationship akin to married would need to have started no later than Feb 24, 2005 (thus permitting you to include time from Feb 24, 2007 into your claimed residence period) and you would need the paper-trail of shared instruments, covering the entire period from that time until your marriage in Nov 2008, as evidence.

I don't agree with the above. For you to succeed, you should have made an application as a Durable partner, and if such application had been successful, it would then be reasonable for you to claim that you should be considered as family member from the day you made the application.

As you never made any application as an Extended family member, it is difficult to say you were a family member within Regulation 7(3) for a 5 years period.

I am a bit sceptical of the merit in your case, you should seek a proper explanition from your lawyer as to how you meet the condition.

I wish you all the best though.

So sorry to hear this spike after the long wait..
I believe you" ll win the appeal with you sending all the necessary documents of cohabitation ..All the best

spike_UK wrote:Hi guy, today my solicitor has sent my appeal.
Refusal reason:
I have not been a family member of EEA who continuously exercised treaty right for 5 years(which she has). You are married on 11/2008 and you are eligible for PR on 11/2013.
Regardless we have lived together over 5year(all documents were provided), he has looked atmarriage certificate (which is less than 5 years) and refused my application.
My layer says I shouldn't be worried and hopefully(she is quite certain:-o) we will win the case.
In the letter says you have to be a family member of EEA for 5 years, it doesn't say you have to be married for 5 years!!! So have I been a family member for 5 years( since we lived together) or what AM I:?:?

Did you perhaps enter the UK with a family permit in the first instance? When exactly was your first application as the family member of an EU national? Was it pre or post marriage?

EUsmileWEallsmile wrote:

spike_UK wrote:Hi guy, today my solicitor has sent my appeal.
Refusal reason:
I have not been a family member of EEA who continuously exercised treaty right for 5 years(which she has). You are married on 11/2008 and you are eligible for PR on 11/2013.
Regardless we have lived together over 5year(all documents were provided), he has looked atmarriage certificate (which is less than 5 years) and refused my application.
My layer says I shouldn't be worried and hopefully(she is quite certain:-o) we will win the case.
In the letter says you have to be a family member of EEA for 5 years, it doesn't say you have to be married for 5 years!!! So have I been a family member for 5 years( since we lived together) or what AM I:?:?

Did you perhaps enter the UK with a family permit in the first instance? When exactly was your first application as the family member of an EU national? Was it pre or post marriage?

Thanks for all your comment guys, I really don't know much or believe about cohabitation but there are people in this forum had similer case and had we the appeal!! my store is as below,
I started living with my EEA national on January 2007 and followed by marriage on November 2008.
In cohabitation word,,, even if we lived together 2 years before married but less than 5 years married , I'm still not qualified for PR so what is the point of 2 years of cohabitations?!!!! The judge should consider we lived together 1 year and 10 months then our durable relation led us to marriage and we have been together over 5 years, so i have been a family member from the day we lived together not just a friend of EEA
EUsmileWEallsmile before I met my spouse I was an asylum with no visa but receiving support from NASS.

Obie wrote:I don't agree with the above. For you to succeed, you should have made an application as a Durable partner, and if such application had been successful, it would then be reasonable for you to claim that you should be considered as family member from the day you made the application.

As you never made any application as an Extended family member, it is difficult to say you were a family member within Regulation 7(3) for a 5 years period.

I am a bit sceptical of the merit in your case, you should seek a proper explanition from your lawyer as to how you meet the condition.

I wish you all the best though.

Thanks Obie, some times couple live together and never married and they are called family member in a durable relationship and after 5 years NON EEA is qualified for PR, with out been asked 2 yrs cohabitation before 5 years.
I think my lawyer is good enough to fight for it but is all depend on the judge, so we will see

abBY20 wrote:So sorry to hear this spike after the long wait..
I believe you" ll win the appeal with you sending all the necessary documents of cohabitation ..All the best

Thanks abBY20 I will try my best anyway

the problem.i.see here is that as obie said, u only count an extended.fam member if u got a residence card in that particular category which would.then count towards 5 years.
on the other hand, your lawyer could argue that time living together before marriage must be taken into account as the relationship ultimately led to.marriage and it is wrong to differentiate between those married or never married and living together

either way, a judge may look at it and agree with u or ukba but your case is clearly not as straightforward so i would make.sure lawyer knows what he is doing.

mcovet wrote:the problem.i.see here is that as obie said, u only count an extended.fam member if u got a residence card in that particular category which would.then count towards 5 years.
on the other hand, your lawyer could argue that time living together before marriage must be taken into account as the relationship ultimately led to.marriage and it is wrong to differentiate between those married or never married and living together

either way, a judge may look at it and agree with u or ukba but your case is clearly not as straightforward so i would make.sure lawyer knows what he is doing.

I'm agree with you, it is not a straight forward case, but as u see we lived together and that led to marriage so it is adurable relationship just because I didnt apply for RC I shouldn't be dismissed from PR.
My lawyer is good and she will argue to the best, so I hope....

You are not that far from having PR based on your marriage. Are you in a rush for PR? Perhaps you could save yourself some expense and wait a little longer - just a thought.

I did read of a successful PR application approved and issued before the 5th anniversary of marriage. The applicant had applied about 6 weeks early and included proof of co-habitation few months before marriage.

Granted, the OP here co-habited for 22 months before marriage, but similar scenario yes?

Plum70 wrote:I did read of a successful PR application approved and issued before the 5th anniversary of marriage. The applicant had applied about 6 weeks early and included proof of co-habitation few months before marriage.

Granted, the OP here co-habited for 22 months before marriage, but similar scenario yes?

OK, he had 22 months cohabitation but how long was he married when he applied for PR? on what bases was he granted PR, can you please send me that tread so I can go through it.
I have 22 months cohabitation then we got married.
We lived together from January 2007 and got married November 2008, and it's almost 4 years we are married.
I just don't know why my cohabitation time 22 months not counted towards 5 years!!!!!
Many thanks mate

spike_UK wrote:

Plum70 wrote:I did read of a successful PR application approved and issued before the 5th anniversary of marriage. The applicant had applied about 6 weeks early and included proof of co-habitation few months before marriage.

Granted, the OP here co-habited for 22 months before marriage, but similar scenario yes?

OK, he had 22 months cohabitation but how long was he married when he applied for PR? on what bases was he granted PR, can you please send me that tread so I can go through it.
I have 22 months cohabitation then we got married.
We lived together from January 2007 and got married November 2008, and it's almost 4 years we are married.
I just don't know why my cohabitation time 22 months not counted towards 5 years!!!!!
Many thanks mate

Spike, I think you are clutching at straws. If someone else applied just a short time before they qualified for PR and the UKBA take up to six months to decide a case, then by the time his case was decided he may have reached the five years.

Why are so desperate for PR when you only have 14/15 months before you will qualify on the basis of five years? Be advised that an appeal may take some time and cost you a lot of money (not to mention stress). You may find by the time it is all decided you will have reached the five years marriage anyway.

spike_UK wrote:
Granted, the OP here co-habited for 22 months before marriage

Plum meant you had 22 months not the other poster.

Spike, I am sorry to read about the refusal. I will advice you to wait till next year when you complete five years in your marriage and apply for your PR, then it will be a straight forward application. please, save yourself the stress, time and money. I know this is very disappointing, most especially if you had to wait as long as you waited and still get a rufusal, but such is life. please check your options and take the easy way out. God will help you.

EUsmileWEallsmile wrote:

spike_UK wrote:

Plum70 wrote:I did read of a successful PR application approved and issued before the 5th anniversary of marriage. The applicant had applied about 6 weeks early and included proof of co-habitation few months before marriage.

Granted, the OP here co-habited for 22 months before marriage, but similar scenario yes?

OK, he had 22 months cohabitation but how long was he married when he applied for PR? on what bases was he granted PR, can you please send me that tread so I can go through it.
I have 22 months cohabitation then we got married.
We lived together from January 2007 and got married November 2008, and it's almost 4 years we are married.
I just don't know why my cohabitation time 22 months not counted towards 5 years!!!!!
Many thanks mate

Spike, I think you are clutching at straws. If someone else applied just a short time before they qualified for PR and the UKBA take up to six months to decide a case, then by the time his case was decided he may have reached the five years.

Why are so desperate for PR when you only have 14/15 months before you will qualify on the basis of five years? Be advised that an appeal may take some time and cost you a lot of money (not to mention stress). You may find by the time it is all decided you will have reached the five years marriage anyway.

presido007 and EUsmileWEallsmile and all other friends on this forum who are trying their best to help eachother,
I appreciate ur advices, I have no rush the only reason I wanted to go for it, because i was told by HO staffs that I'm eligible and I wanted to get pr as soon as possible, as might the rules change in uk by end of next year and I don't get it!! besides it was free to apply for it, and my lawyer is free too.
She has already submitted the appeal but I really don't want to wait or think about it as i don't even know how long it take, i will apply for PR next year November straight forward case.

spike_UK wrote:

Obie wrote:I don't agree with the above. For you to succeed, you should have made an application as a Durable partner, and if such application had been successful, it would then be reasonable for you to claim that you should be considered as family member from the day you made the application.

As you never made any application as an Extended family member, it is difficult to say you were a family member within Regulation 7(3) for a 5 years period.

I am a bit sceptical of the merit in your case, you should seek a proper explanition from your lawyer as to how you meet the condition.

I wish you all the best though.

Thanks Obie, some times couple live together and never married and they are called family member in a durable relationship and after 5 years NON EEA is qualified for PR, with out been asked 2 yrs cohabitation before 5 years.
I think my lawyer is good enough to fight for it but is all depend on the judge, so we will see

Pease can someone please explain to me abit better as I am in the same situation only that I am a non EEA family member I have been applin for this few years befo it wa granted th eonly diffence is that I am dependant on my uncle but during the past few years my uncle was out of of job for some time almost 2 years because he is a contractor so there was a break in between the time is year excersing the treaty. I am soliciting for advise with regards to my case. Thanks looking forward to your response

Hi spike,

My friends' appeal was on different grounds. As for the process I will post again tomorrow. He is away and I can't reach him. I will keep you updated as soon as he comes back. I think though that your solicitor should not waste more time and launch the appeal asap.

anp wrote:Hi spike,

My friends' appeal was on different grounds. As for the process I will post again tomorrow. He is away and I can't reach him. I will keep you updated as soon as he comes back. I think though that your solicitor should not waste more time and launch the appeal asap.

Hi anp, thanks mate and yeh please update me regular.
My solicitor applied it straight away last Wednesday, so now we wait for a date from court I guess.

Spike_uk,

I believe this was clear to you from the start that if the HO would go by the book, your application would be refused. On what legal basis are you basing the appeal on?

In some cases, appeal judges seemed to take a more liberal interpretation of the EEA regulations and granted PR confirmation in an appeal. I hope you get such judge. Worst case, apply after 5 years of marriage.

All the best spike
I got my passport back this morning and residence card was given instead of PR...
Do you guys think it's the HO mistake to issue RC the 2nd time when I applied for PR on the basis of ROR ..and I have all d necessary document...
The marriage lasted for over 3 years
Though my lawyer said PR should be given and not RC
Pls need urgent advice..

Jambo wrote:Spike_uk,

I believe this was clear to you from the start that if the HO would go by the book, your application would be refused. On what legal basis are you basing the appeal on?

In some cases, appeal judges seemed to take a more liberal interpretation of the EEA regulations and granted PR confirmation in an appeal. I hope you get such judge. Worst case, apply after 5 years of marriage.

Hi Jambo, at the start I spoke to HO staffs and few of them said that as long as we lived together for 5 yrs is fine regardless marriage and besides on the book(as you say) it says as long as you are a family member for 5 yrs but never says you should be married, by the time I go to court would be 4 yrs marriage and hopefully judge will count 22 months of durable relationship in to count of 5 yrs, end of the day I haven't paid anything and all is free.
My marriage would be 5 yrs on 11/2013 I'm planing to apply for PR on September(2 months early as it takes 6 months), what do you guys think?

spike_UK wrote:Hi Jambo, at the start I spoke to HO staffs and few of them said that as long as we lived together for 5 yrs is fine regardless marriage and besides on the book(as you say) it says as long as you are a family member for 5 yrs but never says you should be married

It won't be the first time the customer service gave wrong information. "I was told so over the phone" is not a strong legal argument.

The regulations clearly define a family member as a spouse / civil partner or extended family member with EEA FP/RC/PR. Read Regulation 7 (1), 7(3)

Jambo wrote:

spike_UK wrote:Hi Jambo, at the start I spoke to HO staffs and few of them said that as long as we lived together for 5 yrs is fine regardless marriage and besides on the book(as you say) it says as long as you are a family member for 5 yrs but never says you should be married

It won't be the first time the customer service gave wrong information. "I was told so over the phone" is not a strong legal argument.

The regulations clearly define a family member as a spouse / civil partner or extended family member with EEA FP/RC/PR. Read Regulation 7 (1), 7(3)

I know, but what is a family member? if I live with EEA, and EEA loves me and accommodate me and feed me and look after me and pay for all bills and then after that marry me,,,,so what the hell is a family member???????!!!!!! you now what as I said,,it's free so for me nothing to loss and by the time appeal is over it will be 5 yrs of my marriage anyway so I will just kill the time with HO and they are the one paying for everybody not me ) let the game play