Unlawful detention claim

[anupam11]

Hi, i applied for EEA 2 year relationship application on 9/04/2018 and during this time applied for marriage and thus ho called me on marriage interview on 09/07/2018 and put me in detention centre on behalf that my EEA application is refused and i am illegal but me nor my solicitor received any refusal letter before.. my solicitor was too slow during my time inside and just keep applying secretary bail which ho keep refusing , in the meantime my solicitor received the letter of EEA refusal dated 24/07/2018. again my solicitor just write ho stating that it was unlawful detention rather than taking any legal action.finally i applied for judicial review and ho release me on 9/10/2018 and later they reconsider my eea application and give me the 5 year visa.

Now someone suggest me to claim unlawful detention but i am not sure if its worth or not as i have to pay court, lawyer, barrister fees. and after how much money court can grant me?. also i m thinking to apply for ILR on 10 years basis on September 2020 if i will take HO in court will it effect my ILR or not?

[CR001]

What is your immigration history?? If you had a period of no legal residence, you don't qualify for long residence ILR.

[anupam11]

i have been legal since i arrive on 10/10/10 on student visa then psw visa then i applied for Tier 1 entrepreneur was granted then extension application on 22/04/2017 which was pending and got interview and then got refusal letter on 24/04/2018. before that i applied for EEA on 09/04/2018

[CR001]

and then got refusal letter on 24/04/2018

If you applied for an EEA RC as an Unmarried Partner (which appears to be the case), then you had no legal status from the date your tier 1 was refused until the date the RC was granted.

Section 3C protection under the UK Immigration Rules does not apply to EEA/EU route RC applications as an unmarried partner. Highly likely that ILR under the 10 year long residence route will fail as you had no status from 24/04/2018 to until the RC was issued.

eea-route-applications/official-section ... 14238.html

[anupam11]

ok thanks, is there any chance to claim for unlawful detention?

[Richard W]

and then got refusal letter on 24/04/2018

If you applied for an EEA RC as an Unmarried Partner (which appears to be the case), then you had no legal status from the date your tier 1 was refused until the date the RC was granted.

Section 3C protection under the UK Immigration Rules does not apply to EEA/EU route RC applications as an unmarried partner. Highly likely that ILR under the 10 year long residence route will fail as you had no status from 24/04/2018 to until the RC was issued.

eea-route-applications/official-section ... 14238.html

I recommend that CR001 read the first four paragraphs of the post she quotes, rather than just the misleading title. Whether Section 3C protection applies in such cases was undecided at the time of the post, and I believe is no clearer now.

Uncertain law implies high legal cost. I would expect the Home Office to fight all the way.

[askmeplz82]

Your 10 years continuous residence is broken

The Upper Tribunal has held that the UNMARRIED non-EU partner of an EU citizen cannot start accruing time towards permanent residence status until they have a residence card

So you were technically an illegal from

24/04/2018 - RC Issued date
or
24/04/2018 - Marriage Date

[Richard W]

Your 10 years continuous residence is broken

The Upper Tribunal has held that the UNMARRIED non-EU partner of an EU citizen cannot start accruing time towards permanent residence status until they have a residence card

So you were technically an illegal from

24/04/2018 - RC Issued date
or
24/04/2018 - Marriage Date

Non sequitur. As time under a Zambrano derived right does not count towards permanent residence status, one could equally well claim that those whose residence depends on the Zambrano right under the EEA Regulations are also illegal.

[Amber]

and then got refusal letter on 24/04/2018

If you applied for an EEA RC as an Unmarried Partner (which appears to be the case), then you had no legal status from the date your tier 1 was refused until the date the RC was granted.

Section 3C protection under the UK Immigration Rules does not apply to EEA/EU route RC applications as an unmarried partner. Highly likely that ILR under the 10 year long residence route will fail as you had no status from 24/04/2018 to until the RC was issued.

eea-route-applications/official-section ... 14238.html

I recommend that CR001 read the first four paragraphs of the post she quotes, rather than just the misleading title. Whether Section 3C protection applies in such cases was undecided at the time of the post, and I believe is no clearer now.

Uncertain law implies high legal cost. I would expect the Home Office to fight all the way.

I recommend you watch the way you talk to Moderators, you’ve been warned repeatedly!

[Obie]

and then got refusal letter on 24/04/2018

If you applied for an EEA RC as an Unmarried Partner (which appears to be the case), then you had no legal status from the date your tier 1 was refused until the date the RC was granted.

Section 3C protection under the UK Immigration Rules does not apply to EEA/EU route RC applications as an unmarried partner. Highly likely that ILR under the 10 year long residence route will fail as you had no status from 24/04/2018 to until the RC was issued.

eea-route-applications/official-section ... 14238.html

I recommend that CR001 read the first four paragraphs of the post she quotes, rather than just the misleading title. Whether Section 3C protection applies in such cases was undecided at the time of the post, and I believe is no clearer now.

Uncertain law implies high legal cost. I would expect the Home Office to fight all the way.

I really do not see anything erroneous about CR001's post. I will go as far as saying, that no other views could reasonably, possibly be correct.

It demonstrate a complete lack of basic decorum on your part, when you start insulting people and telling them they are wrong, without providing anything to back up your point.

The irony in my opinion is that in most cases it appears that the people you accuse of giving wrong advise are actually spot on, it is you that is mostly wrong unfortunately.

[Richard W]

I really do not see anything erroneous about CR001's post. I will go as far as saying, that no other views could reasonably, possibly be correct.

So do you think it is because of incompetence or fairness (I'm not asking which) that holders of extant leave who apply for residence cards as durable partners under the EEA regulations have been receiving a CoA with right to work? A recent example is the case of Ariyon146. I had thought that CoA with right to work were being issued because it was believed that successful applicants would have retained a right to work during consideration.

[Obie]

Richard the question is not what I want, or what I will like the law to be. It is really what the law is, as interpreted by the courts.

I concede that the views you expressed are quite legitimate, robust, and a reasonable court may rule in favor of such purportive reading, bearing the discrimination principles in EU law, and the fact that the durable partner of a EU citizen should not be in disadvantage purely because she is married to a union citizen in circumstances were he would have benefited had she been married to a British national. I am well aware of the force in that argument, but so far the court has not ruled in that way.

Of course I want resident Card applicant to get Section 3C as well.

I am a very Liberal person in terms of immigration.

I believe in globalisation and it principles.

However what I believe the law should be, is not always what it is. I have learnt to accept that..

If I do not show deference to the law, I will be as bad as the Home Office, I do not want to be seen in that way.

Char is right in what she said, and I believe she should not be criticise for expressing what the law as interpreted by the court, says.

[Richard W]

Char is right in what she said, and I believe she should not be criticise for expressing what the law as interpreted by the court, says.

So is there a judgement that an application for status under the EEA regulations, as opposed to an application for the recognition of status, does not extend leave? The judgement you cited is a ruling that a request for the recognition of status does not extend leave; indeed, you bemoaned the failure to rule on the effect or non-effect of the first type of application.

[Obie]

The 2 regimes are different. A person applying for residence card is not seeking leave to remain, and therefore cannot get a statutory extension of his or her leave pending consideration of his extension application.

Section 3C has the effect of extending leave, pending consideration of a variation of leave application.

If the application made does not engage the Immigration act 1971, which a residence card application does not engage, then leave cannot be extended under 1971.

The government could make a concession within the regulations for scenarios like that faced by the durable partner who had leave prior to their application. However, this cannot come from the 1971 act.

There are many things the government can do.

1. State in the Immigration Rules, that for the purposes of paragraph 276, lawful residence cannot be considered as broken during consideration of a Residence card application made by an extended family member, at a time when they held a leave to remain, until such application has been considered and finally determined within the meaning of section 104 of the NIA 2002 as amended.

2. They can say, that a longer COA should be issued to those extended family member who were entitled to work before their application for leave was lodged. That way they can continue to maintain their livelihood.

However these has to be done within the framework of the EEA regulations and policy guidance.

Section 3C cannot be read as applying to an EEA Regulations application.

Section 3C does apply to settled status applications though, but this does not assist extended family members, as they can only apply under the scheme once they have been issued with a residence card.