10 year long residence ILR refuse

[awaislife55]

Hi guys looking for your kind help, really frustrated now i actual don't know what to do anymore!!
I have applied my ILR after after 10 years on super priority service in January 2020 it got refused as I was a spouse of an EEA national member and they don't count it lawful time even I send them many evidence showing we both been excersing treaty rights.
Visited local MP many time about my case my MP went back to HO twice with Home office guidance along with exercising treaty rights proof they still keep saying we don't count EEA time as a lawful thats why leave can not be count toward long residence application.
I am really getting frustated as they going against their own guidelines.
10 years time line
Student visa held since i arrived in 2010
Then married to EEA national in 2014 after 2 and half years we got divorced
Then married to my current partner british national got 2 and half years extension on 5 year route.
My 10 years was up in January 2020 for 10 years ILR
Please guys any help will be much appricated.

[CR001]

Student visa held since i arrived in 2010

When did your student visa expire?

Then married to EEA national in 2014 after 2 and half years we got divorced

What date you marry and what date did you divorce? What was your spouse doing to exercise treaty rights? What evidence of the EU spouse exercising treaty rights did you submit? Did you apply to retain rights of residence, usually 3 years if marriage is required.

Then married to my current partner british national got 2 and half years extension on 5 year route.

What date did you get married? What date did you get a spouse visa?

What is the exact wording of the refusal letter, removing any names etc?

[awaislife55]

Hi thank you so much for getting back to me
I have student visa from 2010 to 2011 then i have got extension twice till 2014 it was granted with out any gaps.
Then in 2014 i married to EEA national our married lasted till 2017 once i got divorced i have applied for retain rights which was refused because of the fact our marriage was held for 2 years and 6 months, they give me right to appeal or put any other application but they didn't give me any time frame to put a new application so after 6 weeks i managed to put uk spouse application which was granted on 5 years route. Case worker was satisified that even i had divorced EEA wife i still had the valid leave till 2019 its written on my Immigration report from Home office.
My EEA wife was working through our time together and after divorce too i have many pay slips . I sent all of these documents payslips etc our togthers.
Basically they refused me saying after divorcing EEA partner i have not valid leave then i send them proof of there own working from my case worker in my immigration report that my leave was not revoked straight away after divorcing EEA partner so they must of been accepted it.
Second reason of refusal time spend with EEA national does not count as lawful residence. I have send them bundles of pay slips togethers showing we both been excersing our treaty rights and requdted them to apply discretion as there own guidelines says discretion can be applied to count time as lawful if both partners been exercising treaty rights.
This was done through my local MP but they kept saying EEA time can't be consider lawful in my application.
I don't know why they are not acknowledging the facr we both been exercing our treaty rights,
My first extension with UK partner was coming to end in 21 march so i have applied 2nd extension kept my self legal as always.
I don't know what to do anymore.
I am actually so frustrated i have spend so much money effort and time going back and forward to visit lawyer and local MP.
Is any way i can do something with my ILR application?
Much appreciated for kind help

[CR001]

You as a non eu citizen cannot "erlxercise trwty rights". Only an EU citizen can do that.

Note also that from the date of your divorce, you had no legal status in the UK under the EU rules. Your rights under the EU rules cease on termination of the marriage. As you didn't meet the requirements for retained rights if residence, you had no legal stay till you were granted a spouse visa. You therefore do not have 10 years legal residence.

[awaislife55]

Hi thanks for the kind support.
I agreed what you said but how come HO grant me UK spouse visa if I had not valid leave after divorcing and applying for retain rights. According to case worker words on my immigration report from HO saying As the EEA was not revoked I have to deal the spouse application as applicant has had valid leave thats why they grant me on 5 years route.
Thats where I am so confused.
And thats the wording I have got from HO through my MP on my ILR application
previously explained, the decision to refuse application is correct because he did not meet the criteria for ILR under the category applied. He was issued a EEA Residence card on 3 October 2014 following a successful application, however this category of application was made under the EEA Regulations for the reasons already given. In order to be eligible for ILR in the UK under the Long Residency route, this must be accompanied by the type of qualifying leave (Leave To Remain) under the Immigration Rules.

Therefore, as maintained, the refusal of ILR application was not based on the length of leave but rather the type of leave not qualifying. Time spent in the UK as the spouse of a European national under the EEA Regulations cannot be counted as lawful residence and the leave cannot be counted towards his ILR application.
My application does look so so complex
Apologies in advance

[Zerubbabel]

Hello,

Just to simplify: your wife was exercising Treaty Right, not you.

Once you married to an EEA national, you applied for an EEA FM card and they gave you a 5-year card.

Under EEA routes, they always give 5 years but it doesn't mean the card is valid 5 years no mater what. If you divorce before 3 years or your EEA partner ceases to exercise Treaty Right (like left the country), you are no longer eligible to use that EEA card.

It's not the card that makes the right to reside but the fact that you meet and keep meeting the condition under EEA regulations.

I have seen already people going to the Home Office at the expiration of their initial 5-year card to apply for PR just to get rejected and discover that they had no right under EEA regulations a while ago (typically due to divorce or EEA national leaving the UK).

You want to leverage the fact that the Home Office wasn't made aware about your divorce and didn't reevaluate your right to reside and revoked your card. I don't believe that your point is strong enough to return the situation in your favour. Because that would mean that anyone can break immigration rules and as long as the Home Office wasn't aware about it until later, the period of residence in breach of immigration rules has to be considered lawful.

[awaislife55]

Hi thanks for replying my post.
So are you suggesting i should let it go and focus on my two and half year ahead and then apply ILR on 5 year route?

[awaislife55]

Its just the fact I haven't break any immigration rule under the circumstances i had to divorce my EEA wife before 3 years and then apply for retain rights just to cover any gap after divorce and HO was made aware,after retain right refusal they gave me right to appeal or make a fresh application in other category. Thats exactly what I did by putting in UK spouse visa application.
I belive when you divorce EEA partner you don't lose your right straight away you have options and there is not any fix time limit to put any new application after divorcing or refusal.
The UK spouse visa application was granted CW treated my EEA leave as having had valid leave when granting application there where it gets complicated.
HO was agreed on this one when i send them proof of wording of their own case worker In ILR application
Its the EEA category they not counting in long residency application which I believe is wrong because they could of apply discretion the fact my EEA partner was exercising her treaty right all through.

[zimba]

The UK immigration rules and EEA residency regulations (based on EU treaties) are totally and completely separate and they are NOT related at all.

In fcat any time spent as a family member of the EEA is NOT counted as lawful stay in the UK as per UK immigration rules for grant of ILR under long residence at all (EEA based residency is NOT mentioned under paragraph 267A at all). The long residence guide however allows the case worker to exercise discretion and count any time spent as family member of EEA person as lawful residence ONLY AND ONLY if your EEA partner was exercising treaty rights. Grant of ILR under long residence will then be discretionary and is made OUTSIDE the UK immigration rules.

Long residence guide: https://assets.publishing.service.gov.u ... 6.0ext.pdf

You should also know that EEA citizens and their family members are NOT subject to immigration control in the UK. That means when you married the EEA national, you were NO LONGER subject to immigration control. Application for EEA residence card is simply a confirmation of your status and it is not some form of leave or visa (in fact it is optional to get a card). The whole idea or concept of 'EEA leave' you are entertaining is therefore meaningless.

The trouble here is that the moment you got divorced from your EEA spouse, you were no longer family member of an EEA and given that you had no right of retained residence in the UK under EEA regulations, you were again subject to UK immigration control from that point. I remind you that the application for confirmation of retained right of residence was simply an attempt to get a confirmation of such status and it was NOT some sort of application for leave/visa in the UK.

As you did not have retained right of residence in the UK, you were in the UK unlawfully from the date of your divorce until you managed to secure your spouse visa. This means you had a gap in your lawful residence in the UK, so you did not have 10 years of continuous lawful residence required for grant of ILR under long residence.