EEA 4 Refused - Please Help

[TedB]

Hi

I would like to request your support in our appeal against rejection of my wife's EEA 4 permanent residency application.

I am an Irish Citizen, my wife is Malaysian and we live in the UK.
We met in Malaysia in 2002, moved to the UK and lived together since 2003.

I have been working (i.e. exercising treaty rights) since then. My wife has been with me via 2x 2 year visas (working holiday and "to be with partner") plus visitor entry 2 x 6 months. Over the time period she has not been out of the UK for more than 5 months. Therefore I believe she qualifies as having resided in this country for 5 years.

We were married in 2009 and applied for EEA4 permanent residency for my wife soon after. We did not apply for an EEA 2 visa at the time.

The application was refused for two reasons: According to the reasons for refusal letter “YOU HAVE FAILED TO PROVIDE EVIDENCE THAT YOUR EEA FAMILY MEMBER IS A QUALIFIED PERSONâ€

[SunBlue]

TedB,

When did you apply and when you got the refusal letter?
Did you get a Certificate of Application a few weeks after you applied?

These questions are just to help other people like me awaiting for the visa. Thanks!

I am not sure about your answers, so I will wait until someone more experience replies.

[TedB]

Hi Glauco,

We applied July '09, and got the refusal letter in Feb of '10. We received a certificate of application a few weeks after applying for the visa.

Hope this helps,

Ted

[Plum70]

[quote="TedB"]
We were married in 2009 and applied for EEA4 permanent residency for my wife soon after. We did not apply for an EEA 2 visa at the time.

The application was refused for two reasons: According to the reasons for refusal letter “YOU HAVE FAILED TO PROVIDE EVIDENCE THAT YOUR EEA FAMILY MEMBER IS A QUALIFIED PERSONâ€

[TedB]

Thanks, so what should we do? The appeal tribubal takes place in June. Should we send in an application for an EEA 2 and cancel the tribunal?

[jimkam]

Thanks, so what should we do? The appeal tribubal takes place in June. Should we send in an application for an EEA 2 and cancel the tribunal?

Hi there,

Your wife does not qualify for PR yet as you two have not resided in the UK for 5 years under the immigration rules. Make a fresh application using EEA2 and go to the tribunal anyway. When you get there explain to the judge that you basically applied for the wrong visa using the wrong application form therefore you have made a fresh application when you realized the mistake. Show them proof of your new application and tell them that you would like to withdraw your appeal. if you don't withdraw your appeal it will be dismissed as it is clear that you don't qualify for PR at the moment.

Reassure the judge and the Home Office presenting officer that it was a genuine mistake and you rectified this as soon as you sought proper legal advice. Tell them that you have now applied for the correct visa using the correct application form. This is usually acceptable as common sense will be applied instead of immigration rules. It will interesting to hear what other people think. People have been in this position before and they succeeded - thanks to common sense. I hope this helps.

[troubled]

Jimkam how can you make fresh application when you have an appeal pending? I think you have to withdraw the appeal before fresh application is made.Can you do both at the same time,i mean fresh application and appeal ?

[jimkam]

Jimkam how can you make fresh application when you have an appeal pending? I think you have to withdraw the appeal before fresh application is made.Can you do both at the same time,i mean fresh application and appeal ?

Hi troubled,

It's simple. The appeal is bound to be dismissed. For expediency sake it might be prudent to make a fresh application before the court date. The judge can ask the Home Office to reconsider the fresh application but if no application is made before the tribunal date, there will be nothing to refer to and if you make a fresh application after the judge has dismissed your appeal the chances of success on a fresh appeal will be significantly reduced. The Home will think that you're only doing that because your appeal has been dismissed.

If you read the refusal letter it says that "if your appeal is unsuccessful you will be removed from the country". Do you think the Home Office will consider the application of a person they are about to be deported? I don't think so. It will not harm your appeal if you make a fresh application now. If anything it will only strengthen it.

[troubled]

Jimkam what I am asking is that is it possible to do both at the same time? My appeal is due in June so if making fresh application has no effect on the appeal then why shouldn`t I put in fresh application myself? I am not clear about that, so I am looking for an answer to this question.If anyone out there has put in fresh application while the appeal is pending ,then please share your experience with us. I want to know the effect on the appeal,the outcome the case etc.

[Plum70]

Thanks, so what should we do? The appeal tribubal takes place in June. Should we send in an application for an EEA 2 and cancel the tribunal?

No disrespect, but pay no heed to the other comments! Simply withdraw the appeal and lodge a fresh EEA2 application. As I explained earlier, you and your spouse have every right to reside in the UK and the EEA2 application only confirms this. Even without a EEA2 application your non-EEA spouse's rights of residence are 100% intact because of automatic acquisition from your marriage.

Once the UKBA receives the EEA2 application and supporting docs, your wife will receive a certificate of application confirming receipt of the application and hr rights of residence in the UK while the application is being decided.

You, as an Irish citizen automatically acquired PR from the start of your residency in the UK (yet to locate the appropriate citation in law. Anyone?). As this goes back to 2003, you can now naturalise as a British citizen if you wish; provided you satisfy the residential qualifying requirements. See the UKBA site for detailed info.

[jimkam]

No disrespect, but pay no heed to the other comments! Simply withdraw the appeal and lodge a fresh EEA2 application.

Hi Plum70,

That's exactly my point. I advised him to withdraw the appeal and make a fresh EEA2 application but i notice you're asking him to disregard the other comments. I know someone who has been in similar situation and that's the advise I gave her and it worked. If you know an appeal is bound to fail, why wait to be told that your appeal has been dismissed when you can just make a fresh application? This is not a complex case - it's simple.

[Plum70]

I should have been more specific!

I was more referring to comments about a failed appeal attracting deportation and non-acknowledgment of a fresh EEA2 application. This is not relevant info to the OP because he and his spouse have secure rights of residence which are untouched except in instances of public safety, security and health. Also it is immaterial when a fresh EEA2 application is made; the judge need not reconsider an 'in time' fresh application simply because such an application merely confirms a status the OP and spouse already have. The UKBA knows this only too well and has no muscle to flex in this respect.

So a simple "withdraw appeal and lodge a fresh EEA2 application" would have done nicely!

[TedB]

Thanks very much for the advice everyone.

Looks like we had stupidly applied for the wrong permit.

I had submitted an EEA 2 to the tribunal, as a backup. I will contact them tomorrow and ask them to return the EEA 2. I will then forward it to the Home Office and cancel the appeal.

Thanks again,

Ted B

[TedB]

Phoned the home office today to inform of cancellation of the tribunal and to check they had received the EEA 2 application.

The lady on the switchboard told me to go ahead with the tribunal because we don't need to have resided under an EEA 2 visa for 5 years.

I didn't mention that we only got married last year. Maybe that has an effect. Still confused!

[mrlookforward]

Thanks, so what should we do? The appeal tribubal takes place in June. Should we send in an application for an EEA 2 and cancel the tribunal?

Hi there,

Your wife does not qualify for PR yet as you two have not resided in the UK for 5 years under the immigration rules. Make a fresh application using EEA2 and go to the tribunal anyway. When you get there explain to the judge that you basically applied for the wrong visa using the wrong application form therefore you have made a fresh application when you realized the mistake. Show them proof of your new application and tell them that you would like to withdraw your appeal. if you don't withdraw your appeal it will be dismissed as it is clear that you don't qualify for PR at the moment.

Reassure the judge and the Home Office presenting officer that it was a genuine mistake and you rectified this as soon as you sought proper legal advice. Tell them that you have now applied for the correct visa using the correct application form. This is usually acceptable as common sense will be applied instead of immigration rules. It will interesting to hear what other people think. People have been in this position before and they succeeded - thanks to common sense. I hope this helps.

There is no need to do all this chiwong to withdraw the appeal. The applicant simply write a letter to the tribunal and asks to withdraw the appeal. It could simply be " I submitted wrong application to UKBA. I am now going to make a fresh application to UKBA and wish to withdraw my appeal"

[mrlookforward]

Tedb,

Dont worry about this too much. Apply for EEA 2 and forget about your previous incorrect application. Withdraw your appeal by writing or fax to the tribunal. You can withdraw before or after or in the middle of your EEA2 application, it just doesnt make any difference.

[roshan_asher]

[quote="TedB"]Hi

I would like to request your support in our appeal against rejection of my wife's EEA 4 permanent residency application.

I am an Irish Citizen, my wife is Malaysian and we live in the UK.
We met in Malaysia in 2002, moved to the UK and lived together since 2003.

I have been working (i.e. exercising treaty rights) since then. My wife has been with me via 2x 2 year visas (working holiday and "to be with partner") plus visitor entry 2 x 6 months. Over the time period she has not been out of the UK for more than 5 months. Therefore I believe she qualifies as having resided in this country for 5 years.

We were married in 2009 and applied for EEA4 permanent residency for my wife soon after. We did not apply for an EEA 2 visa at the time.

The application was refused for two reasons: According to the reasons for refusal letter “YOU HAVE FAILED TO PROVIDE EVIDENCE THAT YOUR EEA FAMILY MEMBER IS A QUALIFIED PERSONâ€

[alejandrouk]

Hi TedB,

In your first message you mentioned that you started to live together in the UK since 2003. That makes 7 years living as an unmarried couple with you as an EEA national and if you have been working, studying, self sufficient, etc. Then under EU law she could have applied for EEA2 after the first two years living together as a confirmation of her rights, (is not compulsory and in your case she did not apply for it which is fine) then after living in the UK for 5 years (don't know if the 5 years period start in 2003 or in 2005 as is not clearly mentioned in the Law) she could apply for confirmation of permanent residency using EEA4.

The this will be only feasible if you can prove that you have been living together during all this time, (a variety of documents are needed with your name and/or your partners name to the same address, ie. council tax bills, utilities, bank statements, GP letters etc) and also prove that your P60's, payslips and letters of employment covering all that period in the UK.

Will be good if anyone else with more experience could confirm or correct my comments here.

Please keep us posted.

[ys704]

Hi TedB

could you please share your experience in relation to how you made your appeal? and how the appeal process went, i.e did you receive any letter after submitting all the appeal documents etc? did you hire a lawyer?

my situation is almost like yours, we have lived together more than 5 years, but married 3.5 years. I got refused eea4 last week.

thanks very much!

[Plum70]

I think you will find that unless the UKBA confirmed your status as the non-EEA family member of a union citizen while you both were cohabiting as partners, you will need to wait until you both have been married for 5 years before you can obtain confirmation of PR.

My husband and i were in a durable r/ship from July '05 but only got married in Nov. '07 and I do not expect PR to be confirmed till Nov. '12 - 5 years after we are married.

You may wish to appeal but it could be tedious and, as you will attain PR in mid 2012, is it really worth the hassle/'rush' now?

[Directive/2004/38/EC]

In your first message you mentioned that you started to live together in the UK since 2003. That makes 7 years living as an unmarried couple with you as an EEA national and if you have been working, studying, self sufficient, etc. Then under EU law she could have applied for EEA2 after the first two years living together as a confirmation of her rights, (is not compulsory and in your case she did not apply for it which is fine) then after living in the UK for 5 years (don't know if the 5 years period start in 2003 or in 2005 as is not clearly mentioned in the Law) she could apply for confirmation of permanent residency using EEA4.

The this will be only feasible if you can prove that you have been living together during all this time, (a variety of documents are needed with your name and/or your partners name to the same address, ie. council tax bills, utilities, bank statements, GP letters etc) and also prove that your P60's, payslips and letters of employment covering all that period in the UK.

I have a tendency to think this is right. After all there is an ongoing family relationship with the EU citizen, and if there is proof that it goes back a long time, then the person has rights under EU law.

Note that a common-law relationship is classed as a "beneficiary" :
http://eumovement.wordpress.com/2008/04 ... ficiaries/

All this hinges on whether a beneficiary is only covered by EU law once the application is approved, or once the applicant meets the requirements of being considered a beneficiary.

[ys704]

the rush is my work visa is going to expire on 20th Dec 2010, if I don't appeal, the case will be closed and I will be enforced to leave the country as the UKBA resufal letter says.

Even if i submit a EEA2 application now, I doubt I will recevie the COA letter before 20th Dec.

So seems like appeal is the most sensible thing to do at the moment. It will keep me stay and work here legally.

The thing is I don't know about the appeal process.

[86ti]

I believe we have discussed this already. Can you please keep related questions in a single thread and stop posting all over the place. Nevertheless, you better apply for the residence card as you don't know what the outcome of the appeal will be. The appeal will also take time.