EEA4 PR (divorced) refusal

hi everybody
I am going to scream
my PR as a non EEA Ex family member who retains right of residence following divorce has been refused with no right of appeal after 13 months of wait


2000 married EEA member
2001 issued 5 years residence card
2005 petitioned divorce
2006 decree nisi and decree absolute granted
2007 applied EEA4 (retention of residence following divorce )with all required docs
8 months later HO request spouses EU passport and proof of employment at time of divorce What is going on?
Ex would never hand her passport or anything.
I worked and paid taxes for the last 8 years my ex-spouse as well until we divorced .

I managed to get a letter of employement from my ex but not her passport impossible.
I notified the HO about it and told them that my ex would not hand her passport after all we are divorced.
6 month later today (13 month in total) I received the refusal with no right of appeal on the ground that I have not suplied ID of the EEA national as required.
They considered my application as an Non EEA family member of an EEA and not of a non EEA who is retaining right following divorce.
I cannot believe how incompetent my caseworker is.
I sent the EEA4 form without filling section 3 relating to the EEA family member(as I am not anymore one),I joined a cover letter explaining that I was divorced and fulfill all the conditions for the retention of residence following divorce (included decree absolute 2006) I suplied proof that she was working at the time of divorce.I included a print of the 2006 EEA regulation(article 10 retention of residence following divorce)
After all those detailled explanations my caseworker managed to consider my application as a family member of an EEA under article 15 of the EEA 2006.
I really don't get it.I have been married for 6 years but I divorced why are they doing this to me?
What should I do?contact solvit?try a JR?reapply and wait 13 more month?

PS they had all the required docs (my 6 p60,my last pay slips,divorce certificate decree absolute proof of my ex's employment at the time of divorce.)
The funny thing is that they asked me about that last point for the period of decree nisi to decree absolute with the exact dates wich tells me they read the divorce certificate.

sad news but don`t be so hopeless ,
get advice from a good solicitor and go to court of law , thats why the courts are for ..
i am sure u will succeed.
i think any one applying for EEA4 must get professional help from solicitors for their application process .
wish u good luck .

isceon wrote:2000 married EEA member
2001 issued 5 years residence card
2005 petitioned divorce
2006 decree nisi and decree absolute granted
2007 applied EEA4 (retention of residence following divorce )

When did your ex begin exercising a Treaty right in the UK?
When did you join her as / become a person described in Article 2(2) or 3(2) of the Directive? (Month as well as year please).
Which month in 2006 did your divorce complete?

My ex started exercising treaty right in july 1999 we married in 2000
Applied for residence card january 2001 issued february 2001(Ho was really efficient that time)
January 2005 my ex applied for ILR me as a dependent.May 2005 my marriage had difficulties(I won t go into details) my ex asked for her passport back from HO (ILR application withdrawn) my RC has not been revoked.After that my marriage was over.
december 2005 petiotioned divorce.
September 2006 decree nisi for divorce granted
december 2006 decree absolute granted.divorce is final.My Ex is still in the uk exercising treaty right.Logically my ex had PR on 30 04 2006 when directive 2004 38 came into effect for this reason even proof of my EX exercising treaty right at the time of divorce is irrelevant has my ex was already permanently resident before.
It is absurd to ask me to present my EX spouse's ID or passport.

isceon wrote:My ex started exercising treaty right in july 1999 we married in 2000

Then you gained PR in 2005 (on your 5th wedding anniversary). The fact that you subsequently divorced is irrelevant and, frankly, nobody's business but your own.

Ask for confirmation of your PR status, backdated to the date of your 5th wedding anniversary.

Volunteering details of a divorce which occurred after you acquired PR status is only confusing the issue.

Hi!!

Did your ex apply for registration certificate when you applied for your 5 year card, I mean using this EEA1 form?

from this forum and other people experiences I know that they don't ask for passport of ex, if they applied for registration certificate (so they kind of know that they are EU nationals). And it says on their website. It's chapter 2 or 5. Just go on ho website and go to advanced search. Then type "divorce EEA". You will find all documents related to this topic. Unfortunately it's not clear at all. I am in the same situation too. I want to retain my rights of residence at least for now.

You are the first, I think, on this forum who applied for PR following divorce.

Don't know what to say, really.
Go to court, there's nothing else you can do.
Make sure, though, they issued you ex with this 5 year registration certificate, otherwise it could be difficult.

irakra wrote:You are the first, I think, on this forum who applied for PR following divorce.

Family members of EEA nationals do not apply for PR, they acquire it automatically.

isceon acquired PR on his 5th wedding anniversary. The fact that he subsequently divorced is irrelevant.

hello all
Benifa try to explain this to the robots in the Home office.I have been issued with a residence card in 2001 when they ve seen all the docs passport of EEA etc...diirective 2004 came into force in the uk the 30 04 2006 so logically I have the status of PR on that date I have sent them proof of treaty right for the period 2001 2006.but they still asked to see my ex spouse passport proof of her nationality very depressing.
I was so confident to get my Pr that I booked holyday for March I guess I should have been more realistic and waited.
The worst is they given me 28 days to live the country with no right of appeal.
My sollicitor did not get back to me about the JR.I am really down those days.Solvit did not reply to my query so far same for the EU commission.
Nobody cares when it s about non EEA citizens I think.

Irakra
Don't know what to say, really.
Go to court, there's nothing else you can do.
Make sure, though, they issued you ex with this 5 year registration certificate, otherwise it could be difficult.

My ex had a residence card issued in the same time as me in 2001 (this is how it was called back then a blue card)I ve sent them a copy of it.
I also had a residence card of a non EEA family member of a EEA citizen .....(stamp in my passport valid 5 years.)wich prove that I was married to an EEA citizen so I really do not know what they are talking about proof of the EEA nationality.

benifa wrote: Then you gained PR in 2005 (on your 5th wedding anniversary).

I think isceon automatically gained PR on 30/04/2006, before that date you had to apply for PR, you didn't gain it automatically.

Isceon, why did you apply for PR? You could have applied straight for naturalisation on 30/04/2007 - 1 year after you had acquired PR. Your divorce is irrelevant, because as benifa said you divorced after acquiring PR. I don't know if you could still do it, as the HO have probably marked your file. Personally I would have still applied for naturalisation with all the facts - married on this date, gained PR on this date, which have now held for over 1 year with proofs of exercising treaty rights for all these years.
We recently applied to register our children as BC on the basis that their dad (EU citizen) had acquired PR. He never applied for PR sticker in his passport, we only sent them proofs of him exercising treaty rights for 5 years (5 P60s). Naturalisation office had no problems with him having no PR sticker, and registration certificates arrived 3 weeks later.

I am surprised they didn't give you right of appeal. They make mistake and don't let you rectify it.

Hi tasha75
when you read the regulations EEA 2006 or the directive 2004 you are right I had PR status on 30 /04/2006.unfortunately the HO has a different reading of it.
The reason I applied for pr is that:
in 2005 when I was still with my wife ,she applied for ILR and me as dependant however before we get the ILR we had problems and our marriage was over within a year .She withdraw the application,and they just returned my passport without revoking my card or anything.
This is why I thought I had to apply for PR .
The Ho in their refusal letter are not disputing the fact that I was married for over 6 years to my ex who was working in the uk as they had all the evidence of that,but strangely they just said that they needed the proof that my ex was an EEA national??/They had her passport in their hands in 2 occasions (2001 residence card issued and 2005 when we applied for ILR) they know very well that she is an EEA so why asking for her passport now that we are divorced?
I thought about applying for BC directly but because I was divorced I believed that I had to apply for PR first.Now I find myself in the situation wher I can't even appeal.
Solvit has not replied to my complaint so far or will they?
I wrote to the caseworker asking her to reconsider but nothing yet.

isceon wrote:Hi tasha75
when you read the regulations EEA 2006 or the directive 2004 you are right I had PR status on 30 /04/2006.unfortunately the HO has a different reading of it.
The reason I applied for pr is that:
in 2005 when I was still with my wife ,she applied for ILR and me as dependant however before we get the ILR we had problems and our marriage was over within a year .She withdraw the application,and they just returned my passport without revoking my card or anything.
This is why I thought I had to apply for PR .
The Ho in their refusal letter are not disputing the fact that I was married for over 6 years to my ex who was working in the uk as they had all the evidence of that,but strangely they just said that they needed the proof that my ex was an EEA national??/They had her passport in their hands in 2 occasions (2001 residence card issued and 2005 when we applied for ILR) they know very well that she is an EEA so why asking for her passport now that we are divorced?
I thought about applying for BC directly but because I was divorced I believed that I had to apply for PR first.Now I find myself in the situation wher I can't even appeal.
Solvit has not replied to my complaint so far or will they?
I wrote to the caseworker asking her to reconsider but nothing yet.

isceon,

this might sound stupid but have you tried obtaining a photocopy of her passport? try to convince your ex to give u a copy (she is not losing or risking anything) and try to send it again to your caseworker, you never know..i would try anything ..

this is all so unfair on you..good luck

I had a photocopy .they asked original and valid passport

Is there any way to get the passport of your ex through the intervention of a solicitor , any one who is a person of good standing in the area , any mutual friends you both have....I may be wrong but have you thought about this.

isceon wrote:I really don't get it.I have been married for 6 years but I divorced why are they doing this to me?
What should I do?contact solvit?try a JR?reapply and wait 13 more month?

First of all the EEA applications have all been moved the Liverpool, while the staff stayed in Croydon. That means all applications are currently handled by caseworkers that have only a few months experience at best. The quality of decisions has certainly suffered significantly because of this move.

I think your options are listed on http://www.publiclawproject.org.uk/AdviceGeneral.html (although the server seems to be having difficulties right now). The first step would be to ask for reconsideration - certainly your previous residence card should be evidence enough.

Another sneaky option would be a subject access request (SAR) for your file - it should contain a copy of the passport in question. Once you have that, you can argue that the UKBA already has the information they need.

Then you have five further options: a complaint with the UKBA, your MP, the parliamentary ombudsman, SOLVIT and a complaint to the European Commission. It is hard to judge which is the most likely to succeed.

And the last resort is judicial review (since no appeal is allowed). This is going to cost, but the chance of success is pretty good. You may get your legal fees covered, if the judge finds that you are right, and you have tried less expensive options without success. The fact that you do no have a right of appeal would be an excellent argument to get your legal expenses reimbursed, for example.

The only problem is that you have to apply for JR within 3 months of the decision, and that is not a lot of time for some of the other options. For example I would not expect the complaint with the European Commission to be resolved by then.

So you really need to single out the options that are reasonable fast and not conflicting. For example: do the SAR, complain to SOLVIT, and at the same time complaint with the UKBA and ask for reconsideration. Then talk to your MP, and if you still have time to the parliamentary ombudsman. Don't forget to set deadlines were appropriate, for example 2 weeks for an initial answer.

If that does not help, your two options are to reapply (but what is the point), and JR.

The funny thing is that they asked me about that last point for the period of decree nisi to decree absolute with the exact dates wich tells me they read the divorce certificate.

Maybe, but they misread the law. According to the Directive 2004/38, this period is not relevant for the retention of the right of residence.

This is a shocking turn of events. How can the HO blatantly deny a right that is yours and not acknowledge that? Things seems to have gotten from bad to worse for EEA family member application.

I concur with thsths, that these steps are by far the practical way to handle the situation, but somebody need to give the HO a rude awakening about the mess they are dishing out.

Hey there
Thanks all for your support and advises it is very important to me these days .
My sollicitor sent another letter to the UKBA asking to refer my case to a senior caseworker with all the details in order to review their decision.In the same time We appied for a ground of appeal to the AIT misapplication of the EEA directive and I filed a complaint to solvit (I am waiting for their Reply).
I will keep you updated

JA13I wrote:I concur with thsths, that these steps are by far the practical way to handle the situation, but somebody need to give the HO a rude awakening about the mess they are dishing out.

Well... that is happening all the time. The UKBA is losing cases left, right and centre, and that is not limited to EEA applications. I just read the UKBA only approves 10% of asylum cases, but a further 20% are granted appeal - so the tribunals approve more asylum seekers than the UKBA!

Anyway, nobody seems to care. So there are only two things to hope for: once a high court confirms a right, the UKBA usually follows the judgement quite well (in other words: they follow case law much better than the primary legislation). And I am sure that the EU is going to keep a watchful eye on the UK. While there are many countries that have not correctly implemented the law, I think the UK is the only country where things are getting noticeable worse. That is a trend the EU is not going to be happy about.

Dear thsths as you advised in one of your posts this website http://www.publiclawproject.org.uk/AdviceGeneral.html . In the leaflet of `what is judicial review `they say that if someone is not eligible for recieving public funds then he has to pay 15000 pounds for the cost of review. what is this How can some one pay that amount . Will they ask isceon for that much money.

£15000 No way.Oh I am entitled to public fund as I am still family member of an EEA citizen and 1 kid so I ll be all right anyway...
Quick update : no news from solvit so I sent an Email to solvit uk and they said that the solvit centre where my ex came from did not ask them to take my case.What I am concluding is that the italy solvit centre does not give a toss about non EEA citizen divorced from an italian citizen.I am really disappointed about their lack of compassion.They did not even bother to send me an E-mail informing me about it .I am just waiting for the court to redress this unjustice.I hope that the AIT will accept at least to hear me cause right now I feel so powerless.
It's not fair....

I found this details from ho website. I think it will be helpful for you.


European Economic Area nationals and Swiss nationals
If you are a European Economic Area (EEA) national or a Swiss national or the family member of such a person, you will automatically have permanent residence status if you have exercised EEA free-movement rights in the United Kingdom for a continuous five-year period ending on or after 30 April 2006. You do not have to apply for leave to remain. You should have held permanent residence status for 12 months before you apply for naturalisation.

If you have been outside the United Kingdom for six months or more in any one of the five years of the residence period you will have broken your residence. This does not apply if:

the absence was due to military service; or
all absences were for under 12 months and were for important reasons such as pregnancy, childcare, serious illness, study, vocational training or an overseas posting.
If you leave the United Kingdom for a continuous period of two years or more you will lose your permanent residence status.

If you have indefinite leave to remain (ILR) in the United Kingdom you will be considered settled providing you have not been away for two years or more since you received ILR.

http://www.ukba.homeoffice.gov.uk/briti ... uirements/

update
The Ait accepted my statements and ordered a hearing without prelimeneries for end of this month.(I had no right of appeal so thought the HO)
We will see what they have to say to justify their incompetence.

hi isceon , am sure i replied your pms, you last pm said good luck.
any my bro is appealing again still waiting for a date.

mean while his wife has move to germany with her new boyfriend as he is on military appt.

i am not confidence he will win . i have told him that but he doesnt listen to me.

as for your case, have you got any records of similar case that was later given pr ?.

I think ur brother is doing the right thing and he will get pr.Court cases will get the HO to review their misapplications of the 2004 directive.
For my case its just my caseworker was incompetent and useless I am sure to humiliate them if we end up in court.
I will let u know.