Overstayer: EEA2 Application

[andykay]

Hi all

Am Ugandan 33years old, been living in UK for 7years. my Unmarried partner is Italian 31 years old. We met in September 2011, started dating 24th September 2011, moved in together 23rd November 2011. We've been together for 2 1/2 years, been living together 2 years and 4 months.
We applied for EEA2 as unmarried partners on 2nd February 2014, sending through documents including:
all bank statements going back 2 years
tenancy agreements
nhs cards
counterpart driving licences
correspondence from home office and NHS
HM revenue correspondence
pictures of us since 2011 some dated.
letters from former flatmates and friends with copy passport testifying that we lived together since then and more letters to both of us addressed to same flats
proof of exercising treaty rights eg payslips and letter from employer and passport.
unfortunately, all the flats we lived in were bills inclusive, so no shared bills.

the situation is i applied in April 2012 for leave to remain on FLRO form to join the British Armed forces but Homeoffice made a decision a year and a half later and in due course my visa had expired and kept my passport But i had valid leave to remain when my partner and I met and moved in together. My visa expired April 2012
i have read some tribunal decisions on here, ie:

(EEA reg 17(4) - proper approach) Ivory Coast [2008] UKAIT 00062

MO (reg 17(4) EEA Regs) Iraq [2008] UKAIT 00061

from what i know is that Overstaying is an issue regarding issuing of residence cards to non EEa nationals under the discretion of HO however it cannot be the sole reason for refusal.looking at the cases i mentioned earlier, the immigration judge dismissed appeals basing on the issue of overstaying.
guys what are my chances, please advice???

[dalebutt]

I only had to read the first case, only because I was shocked to read what you post, the case is concerning an application for RC by someone who is in a durable relationship, and they made an application for a RC one year into the relationship, they have not accumulated 2 years durable partnership which met the requirement.

In a nutshell, it is not at the home office discretion to issue residence card if the applicant is overstayer, in fact they are OBLIGED by law issue residence card, you see that the UTT judge noted the FTT judge has not applied a case called MRAX? That case is what obliges the UKBA to issue RC regardless if one has been an overstayer.

5. The second ground for reconsideration alleged a failure on the part of the Immigration Judge to consider the appellant's particular circumstances before assessing whether it would be disproportionate to remove the appellant to Ivory Coast. The third ground alleged a failure to follow the European Court of Justice (ECJ) case of MRAX (Case C-459/99 Mouvement contre le racisme, l’antisemitisme et la xenophobie ASBL (MRAX) v Belgian State [2002] ECR 1-6591).

If you met the requirement for a residence card, being an overstayer will have absolutely no impact on decision.

[andykay]

Thanks Dalebutt for your great contribution however going back to the last paragraph of the upper tribunal ruling, the immigration judge in the case mentioned that he acknowledged that the relationship was durable but other factors weighed more heavily towards issuing a residence card by HO.

please see below the paragraph

39. In our judgement the discretion conferred by reg 17(4) should not be exercised differently. Whilst we accept that the appellant began her relationship with her EEA partner at a time when she was still in the UK lawfully and that their relationship became a durable one (certainly by the time it had lasted two years), we consider that other factors, considered cumulatively, carry more weight: that at the time the appellant first met Mr D she was a person who only had limited leave to remain (until her 18th birthday); that by the time she began living with him (in December 2004) her limited leave (until 8 May 2004) had already expired; that at the date of application she had only been living together with him for a year; that by that time she had been an overstayer for over six months; and that there was no evidence to indicate that there were any difficulties (relating for example to age, health or children) in the way of the appellant going abroad to make an application to an Entry Clearance Officer for an EEA family permit as the unmarried partner of an EEA national (see Regulation 12(2) of the 2006 Regulations) or to arrive at a UK border and seek admission as the unmarried partner of an EEA national (see reg 11(2)). In our judgment, examining whether the discretion afforded by reg 17(4) should have been exercised differently, we find that it should not: the particular facts of the appellant’s case made it (and continue to make it) inappropriate in all the circumstances to grant the appellant a residence card

[dalebutt]

I am not actually interested in that paragraph, you should rightly ignore that case as well , Mrax overrules any case law by national tribunal and courts regarding this matter, you are also ignoring this part of the paragraph

that at the date of application she had only been living together with him for a year; that by that time she had been an overstayer for over six months;

The judge is focusing more on the date of application and rightly so, in my view the requirements were not met as at the time of application. Have you checked the EEA2 form? there was no where on the form that asked for proof or legal residence in the United Kingdom as part of the application.

[dalebutt]

I had a quick read of the second case, it is true that ukba might hold some leverage in deciding some application under the regulation, such as Other family member (extended family member) they do not have automatic right under the regulation, they have the right only when it has been confirmed by the UKBA, durable partners enjoy more rights than OFM's, but their rights only commence when it has been confirmed by the home office/UKBA, this does not apply to married couples as their right is automatic upon marriage to an EEA national.

Going forward, your application cannot be refused on the sole ground of being an overstayer if you met all other requirement.

[hannah85]

Hi there, what have happened with your application?? My partner is an overstayer for the same reason, after a visa refusal, his passport was kept by ukba. Now have recently applied for residence card... We are worried about the fact he is an overstayed, otherwise we qualify perfectly I would say....