eea4 refused apeal dismissed confused

[blessing200]

this is my story,i enter the uk as a student oct 2004
got married to eea national (irish citizen)who has been living in the uk most of her life in october 2006
get resident card in june 2007
divorce in october 2011
apply for ILR in may of 2012
acknowledgement letter received july 2012
application refused november 6 2012
the application was refused by Ho stating that my ex wife did not show she was exercising treaty right from january 2009 to the decree absolute date (oct 2011)
but prior to january 2009,she is a worker from 2006 to 2007
2007 to december 2008 self employ
jan 2009 to april 2011 she was on job seeker
then from may 2011 to october 2011 (decree abolute issue) she started collecting employment and support allowance (esa) due to illness(diagonise wt psychosis)
november 2012 appeal sent
dec 2012 appeal date received
january 2013 went for appeal
on getting to apeal that was when the judge bring it to our notice (me and my lawyer about the ESA,cos we thought it was still part of job seeker so she qualify,we discuss about it but the judge said the 5 months matter but he will see wat he can do
appeal decision received last week appeal dismiss
reason given was that she was no more qualify wen she started claiming for ESA even though we explain the reason why she went on ESA
so,so to buy time i hv apply to the lower house so as to appeal to the upper house
but my lawyer is now saying i can reapply on the same bases
but iam confused wat to do
cos i dont want to be an overstayer and i dont know if i can apply and appeal at the same time
pls i need urgent advice
thanks everyone

[Obie]

You should have succeeded in your appeal. You solicitor for some reasons dont seem to have a full grasp of the law. By your account, you wife has lived in the UK all her life. She is someone who has most likely secured PR. Therefore the fact that she is on benefit is not material. There seem to be an error of law there, in my view.

[blessing200]

You should have succeeded in your appeal. You solicitor for some reasons dont seem to have a full grasp of the law. By your account, you wife has lived in the UK all her life. She is someone who has most likely secured PR. Therefore the fact that she is on benefit is not material. There seem to be an error of law there, in my view.

thanks for ur reply so wat do u think is the next thing i can do ?can i still re apply?
pls advice

[Obie]

This all seems a bit messy. It makes no difference applying or appealing if the basis is not based on Law or the right argument.

Few fact.

How long had your wife lived and worked in the UK prior to 2006?

Had she left the UK for a period of more than 2 years prior to 2006?

Why did she leave work? Was she made redundant?

Did doctor say that the psychosis means she cannot work?

[blessing200]

This all seems a bit messy. It makes no difference applying or appealing if the basis is not based on Law or the right argument.

Few fact.

How long had your wife lived and worked in the UK prior to 2006?

Had she left the UK for a period of more than 2 years prior to 2006?

Why did she leave work? Was she made redundant?

Did doctor say that the psychosis means she cannot work?

Thanks again. These are the answers to your questions;

My ex-wife came to UK from Ireland at the age of 16 and she is 44 years old now.
According to her, she had been working until year 2000. She did not work between year 2000-2005.
She resumed work again in 2006 just before we got married.

The maximum period of time she have spent outside UK continuously is 3months for holiday.

She left her 2 different jobs because she was having problem with the clients and co-workers at work. She was not made redundant. In fact, I asked her to leave work before she got sacked.

Then she started self employment immediately. The trading was good at the beginning before she started having problems with the customers again. She picks up fight as she want. This situation made her to loss all her customers and the business was going down before she finally stopped in December 2008.

I cannot say precisely if the doctor said she cannot work due to her ill-health because we were separated by the time she was diagnosed with the problem.
She told me after she was diagnosed.

I hope these answer the questions.

[Obie]

If she worked for such length of time, and it can be proven, then the benefit claim is irrelevant.

[blessing200]

If she worked for such length of time, and it can be proven, then the benefit claim is irrelevant.

Thanks for your reply but you haven't answered my initial question.

She (my ex-wife) is not cooperating as I don't seem to know her where about. May be she had travelled as I have checked at her house and her mobile wasn't going through.

If by any chance the application to appeal to the upper tribunal is not granted, what do you advise should be MY NEXT MOVE.

Please I'm seriously waiting for your advise as my time is running out.

Thanks.

[Obie]

Apply again, but you will need to work harder and get more evidence.

Due to her mental health situation, you may be placed in a good position to request the home office to check her tax history prior to 2000.

You have the right. The question is, can you prove it. I can see the difficulty you are facing.

[blessing200]

Apply again, but you will need to work harder and get more evidence.

Due to her mental health situation, you may be placed in a good position to request the home office to check her tax history prior to 2000.

You have the right. The question is, can you prove it. I can see the difficulty you are facing.

Thank you so much for all your time and advise. I will do my best and I hope it will be enough.

[Tomasz]

Dear all,
My wife receive letter from HO today that her application for EEA4 was refused, the reason for that was not enough evidence from my site - I did not send my P60 or payslips from last 5 years. I'm living and working in UK for more than 5 years, to prove my employments I did send letter from my employer clearly states that I'm fully employ with them from 18.05.2007 till now (its more than 5 years).
I did not send my p60 and payslips because on the page 28 is state that any of the following documents are require: "For time spent in employment: this can include contracts of employment, letter(s) from your EEA national family member’s employer(s) confirming your employment, P60s, or wage slips should be provided. "
We have refusal letter from HO today and Form IAFT-1 Appeal to the first - tier tribunal. My question is, what to do next:
1. Appeal against that decision? or
2. Re apply this same form EEA4 again with my p60 and payslips - i do have them.

The problem is my wife visa (resident card of a family member of an EEA national) is expire now it was till 21.01.2014

Thank you very much for help