EEA4 APPEAL DUE ON 14TH APRIL,2010

[troubled]

Hi dear colleagues I need your advice once again. My appeal hearing is scheduled on the above date.My solicitor has advised me to withdraw and make fresh application.I am confused where to go, appeal or fresh application? I do not want to bore you on this issue,but in case you have no idea about my case ,my PR was refused because my spouse passport has expired.She is refusing to cooperate by renewing the passport due to some misunderstanding.I have been advised to file for divorce that is ongoing, then afterwards make fresh application.Please I need all of your input advice as to how to approach the whole issue. Gurus and everyone I am waiting for your response.May God bless all of us.

[darb1]

I am in a very similar situation however, I am already divorced. I was married for 4 years and decided to stay on, as the UK is now my home (I studied here before getting married and have lived here for 10 years)
My EEA 4 application was denied last week (after a 6 month wait) apparently due to there not being enough documentation to support the fact that my ex-wife has lived in the UK over the past 5 years. This is crazy as I supplied them with letters from her former employers as well as the sporadic bank records and bills she actually kept over that period. All my documentation was in order. She has now refused to supply me with a full 5 year statement report from the bank as she is now remarried.
I have decided to go for the appeal hearing as I cannot wait another 6 months! (my sister has a 1 year old baby I still haven't met, my father is ill and I feel like I am under house arrest!) It is apparently not law that I have to provide additional documentation from her if I cannot get it from her!

In your case, I agree with your solicitor, if you are getting divorced, re-apply after you have done this. As long as you have been married for 3 years. The hearing will find it strange that you are still married and your wife won't help you..

[troubled]

Darbi1 thank you for your response.I did supply them with all the documents required including P60`s for the past 5 years and beyond,wage slips, joint named utility bills etc, except the spouse passport that has expired. Yet HO found excuse to refuse. I waited for one year and 3months and going through that painful experience is unbearable.My father died during that time and I could not go to the funeral , I lost my job during that time because my employer could not take it anymore. The only thing one can say is leave it to GOD to decide for us. I will file for divorce and then re-apply.My question is does one have the right to re-apply if an appeal is lost?.Gurus please help me with this question.

[Obie]

Troubled i don't think your solicitor is write for the reasons stated below.

1. You can't make a new application, when the reason for the previous refusal still stand.

2. You cannot apply for retention of right of residence when you have yet to get a divorce or are someone with the right of Permanent residence.

3. You will be asked to produce evidence of your wifes residence when you apply for Retention of Residence, which you will not qualify for, and this will bring you to square one again.

4. If you go for divorce, the HO will demand evidence that up to the time the decree absolute was passed your spouse was a qualified person, or exercising treaty rights in the UK, which i don't you will be able to provide.

I think, in my humble opinion, you should fight this case head on, on grounds that it is unlawful for the following reasons.

1. You had provided passport as evidence of your wife's ID and nationality when you applied for Residence Card

2. It is not HO policy, as evidence in their guidiance for you to provide evidence of your Spouse ID when you apply for PR.

3. It is not a requirement in Directive 2004/38EC or the EEA regulations 2006, that you need to provide evidence of Nationality to qualify for PR.


I think you should have a proper discussion with you solicitor to ascertain exactly why he thinks it is in your best interes to file another application, and not proceed with an appeal of the HO decision.

Frankly speaking i don't understand why he want to take that path.

The following documents must be supplied by a non-EEA national family member of an EEA national who is applying for a permanent residence card under regulation 15(1)(b) of the 2006 Regulations having completed 5 years residency:
•
A valid passport
•
Proof that s/he was a family member of an EEA national during the 5 year period
•
Documentation confirming that s/he has resided in the UK with the EEA national in accordance with the 2006 Regulations for a continuous period of 5 years; this requires confirmation that during this period the EEA national was residing in the UK in accordance with the Regulations .

A valid passport of the non-EEA national is only whats required. If ID of EEA national was required, they would have stated Valid Passport/ ID of EEA national.

Therfore i think it is against HO policy, against the directive aswell.

Have you got joint household bills with her.

Have you proof that you lived together for 5 years.

Have you proof that she was exercising treaty rights in the UK.

I think that is all that is needed.

An indated passport is strictly speaking not a requirement.

[troubled]

Obie if there is any title above Guru that should be given to you. I mentioned those point to my solicitor and he told me that since I am still married to her HO could demand her ID though it is not stated explicitly. HO have acknowledged the 5 years of exercising treaty rights by both of us through the documents I supplied to them. We have joint tenancy agreements,joint named utility bills as well as individual letters bearing the same address.I am going to include some of your points in my witness statement. You are right my spouse`s identity had been establised that is why HO issued residence card to me and registration certificate to her. All the documents they required I provided.I hope you will come back to me with such an invaluable ideas.Thank you very much and may God bless you.My last question is do I have any right to re-apply if(God forbid) I lose the appeal?

[kellyman]

hi troubled,
i would not advice you to proceed with the appeal as Obie is suggesting for this reason: the home office can successfully argue that your wife might have denounce her nationality the 5 year period when they first saw her passport and taken on a different nationality which doesn't make her an EEA national any more.( mind you, 5 years is such a long time for a lot to happen)

i will advice you to stick to the solicitors advice start with the divorce proceedings. As you start the divorce proceedings,you can change her status to self sufficient by buying a comprehensive medical insurance to cover her from the start of divorce proceedings to the time you get your decree absolute.

wish u all the best

[Obie]

I think the only person who are in the wrong here is the UK border agency.

It is entirely up to Trouble, but i am not convinced that proceding with divorce and then applying for a retention of right of residence is the right way to go about things.

The regulations states that a person with a right of Permanent residence, cannot Retain a right of residence. Secondly applying for a divorce is not going to change the HO requirement, in fact it will lead them to increase their requirement.

A divorce can be a lengthly process, which could potentially drag on for a substantial period of time, i don't think it will be in the OP's interest to keep his life on hold, unnecessarily for that duration.

Article 15
2. Expiry of the identity card or passport on the basis of
which the person concerned entered the host Member State
and was issued with a registration certificate or residence card
shall not constitute a ground for expulsion from the host
Member State.

You can reapply again after an appeal, provided new evidence has come to light, which was not available in the appeal, like a divorce certificate.

I don't think the lawyer is write, he has to explain her reasoning a bit more to you.

[kellyman]

obie, from the little research i have made, there is no way HO will issue a PR unless the original passport is seen by them. they can only condone that if a decree absolute is obtained.

as i said earlier, they would argue y cant the OP provide an valid passport from the wife if they are still married. this is where the issue of lost /denouncement of nationality comes in. to be on the safeside, y dont you wait extra 4- 6months to get that one done

note: the home office can frustrate you even if you win the appeal by seeking for review and counter-appealing in a higher court. and boy, that can take almost a year to conclude[not forgetting the amount of money u will waste in legal fees]

Bruv keep it simple and follow the advise of your solicitor. remember had i known is always at last

[troubled]

The identity and nationality of my wife is not in doubt.We have our names on the electoral register something she signed to confirm her nationality.I have letters and official polling card from the council confirming that. If they are in doubt HO is a bigger organisation and they can get that information from my spouse embassy in UK. They just want to frustrate me and others but only God will be the judge.I appreciate all your contributions.The fight is like David and Goliathe. I do not have the money to fight the state as they put it "Secretary of state being the respondent". They can drag me to higher court where I cannot afford lawyer`s fees even Tier-1 tribunal is costing me £2500, then you can imagine ....I am following all your contributions and I will make a decision with God guidance.Thank you all

[Obie]

Stay strong and positive and remember the law is on your side.

The behaviour the blood sucking vampires who call themselves solicitors can be quite disheartening at the best of times.

That is a ridiculous amount he has charged you, especilly when he is seeking to talk you out of proceeding with the appeal.

Perhaps you should request a Renumeration Certificate if the matter don't get to court.

I wish you the best

[troubled]

Thanks Obie I met my solicitor today and we have decided to go to court.If all of us are going to be afraid of HO then they will continue to make such awful decisions and get away with it. UK is not a banana state the rule of law exist so let the independent judge decides this case.I met all the requirements under permanent residence rule ,they just want to frustrate me. I am not going to give up and I know with God everything will be ok. We discussed our strategy in length. My solicitor told me that the production of EEA national`s passport by a non-eea national for PR is HO guidelines but not law incorporated in EU regulations.Though they have the right to ask for spouse passport it is not stringent requirements so any decision of refusal based on this is subject to interpretation. Please if you have any more articles on EU regulations that will help my course let me know and I wiil put them into my witness statement.

[brownbonno]

Thanks Obie I met my solicitor today and we have decided to go to court.If all of us are going to be afraid of HO then they will continue to make such awful decisions and get away with it. UK is not a banana state the rule of law exist so let the independent judge decides this case.I met all the requirements under permanent residence rule ,they just want to frustrate me. I am not going to give up and I know with God everything will be ok. We discussed our strategy in length. My solicitor told me that the production of EEA national`s passport by a non-eea national for PR is HO guidelines but not law incorporated in EU regulations.Though they have the right to ask for spouse passport it is not stringent requirements so any decision of refusal based on this is subject to interpretation. Please if you have any more articles on EU regulations that will help my course let me know and I wiil put them into my witness statement.

General rule for Union citizens and their family members
1. Union citizens who have resided legally for a continuous
period of five years in the host Member State shall have the
right of permanent residence there. This right shall not be
subject to the conditions provided for in Chapter III.
2. Paragraph 1 shall apply also to family members who are
not nationals of a Member State and have legally resided with
the Union citizen in the host Member State for a continuous
period of five years.

Summary,Chapter III above deals with Articles 6-15

http://eur-lex.europa.eu/LexUriServ/Lex ... 048:EN:pdf