eea2 refusal - appeal or resubmit application

[paouk]

Dear forum members,

I would be grateful if you could shed some light:

My husband and I got married last June. I am a student, EU and he is non-EU. We live together in the UK.

We applied for eea1 and eea2 through our solicitor.

The application was rejected on the ground that I do not have a private comprehensive health insurance.

The solicitor wants to appeal on the ground that I received a scholarship in exchange for teaching while studying and therefore that I qualify as a worker, not as a student.

I doubt this will work (I have a student card and I am registered full-time).

They want 1.5 grands to go to court.

Would we not stand a better chance resubmitting an application (with health insurance)?
Can we resubmit?
Is there a period during which we cannot resubmit?
Is there any specific procedure?
Can my husband get his passport back to resubmit?

Thanking you in advance for your answers

Paouk

[dasjoker]

Dear forum members,

I would be grateful if you could shed some light:

My husband and I got married last June. I am a student, EU and he is non-EU. We live together in the UK.

We applied for eea1 and eea2 through our solicitor.

The application was rejected on the ground that I do not have a private comprehensive health insurance.

The solicitor wants to appeal on the ground that I received a scholarship in exchange for teaching while studying and therefore that I qualify as a worker, not as a student.

I doubt this will work (I have a student card and I am registered full-time).

They want 1.5 grands to go to court.

Would we not stand a better chance resubmitting an application (with health insurance)?
Can we resubmit?
Is there a period during which we cannot resubmit?
Is there any specific procedure?
Can my husband get his passport back to resubmit?

Thanking you in advance for your answers

Paouk

As long as you are paying your TAX on your work, i think should be fine. Otherwise just buy a insurance and reapply. Your husband hasn't receive passport back yet from Home Office? Also Have you seen your refusal letter?
You can apply straight away and instead of using solicitor i would apply without solicitor and seems like your case is straightforward which you don't need solicitor.

[nonspecifics]

Applications for residence cards are usually straightforward enough.

That is an interesting argument from your solicitor, but clearly you do not want to follow that way of appealing.

Though, usually if you have proof you are being paid for work you do and that that "work is genuine and effective" then you are a worker, but UKBA might argue that it's not, depending on the terms and conditions of your scholarship, how many hours you teach etc etc.

Though, if someone could clearly prove they are a worker they could just re-apply without appealing.

I agree, that if the only reason residence card applications are refused is lack of CSI then it would be much easier - and cheaper - just to get the CSI for the student and all family members and then re-apply.

I would re-apply as soon as possible and point out they already have the non-EEA's passport in their possession.

You cannot backdate it, so any future Permanent Residence applications would probably best be dated from the date when you got CSI cover. Also, I do not recommend you get the CSI once, so you get the Residence Cards then cancel it. Again, if at any time in the future you do not have CSI then you would not be exercising Treaty Rights and would lose the right to reside and your family member too. They will find out if you apply for PR five years from now and they ask you for five years of evidence.

Solicitors are businessmen. They have a living to earn, so of course they would rather do it for you and be paid for their time and effort.

[Obie]

The Solicitor is certainly right that under community law, remuneration, which is one condition for someone to be considered as a worker does not have to be in actual cash. It can be indirect "quid pro quo".

If you can show that the scholarship was given in return for the service you provided, or agreed to provided, then you will be considered as a worker under community law.

The caselaws below confirms this.


http://eur-lex.europa.eu/LexUriServ/Lex ... 196:EN:NOT

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean


However, if the solicitors charges you 1500, and a CSI will cost far less than that. It might be advisable to take it and reapply.

Or pursue the case yourself, if you are confident, as i believe your solicitors is right, to say you have a case, and a strong one in fact, judging by what you said.

However the choice is entirely yours.

[paouk]

Thank you for all your reply, it makes things much clearer.

After weighing the time/costs/benefits we decided to go for a CSI and resubmit. 1.5 grants of solicitor fees would cover my CSI for a year and a half...

Cheers everyone

[nonspecifics]

Maybe another option is get the CSI and do the student application so you're getting the application in as soon as possible. So, then it's sorted for now.

Then you can take your time to establish whether you also qualify as a worker, so if you definitely do, in the future you won't have to keep buying CSI year after year.