EEA4 Refusal and Appeal dismissed urgent help needed please.

[momeebuilder]

Hi,
I need some expert advice on this case..

My wife is dual National by birth(British/Irish) she was born in northern Ireland she lived there with her parents till the age of 15 then the family decided to moved here in England and since then she is living here in England.

We are together since 2004. My student visa was expired in 2005. In 2006 I was granted five years residence document now which has already expired in 2011.

I have a establish business here in the Uk, My wife helped me as much as she can in the last five years to run the business but at the same time she looked after six Children as well.

Since I was issued my five year residence card we had three children and due to that her involvement in the business was minimal, she was only doing 1 to 2 Hours a week.

I have applied for PR before the expiry date. My application was refused on the grounds that my wife didn't exercise treaty right with the right of appeal.

Finally the appeal was dismissed in Feb2013 on the same ground that my wife didn't exercise her treaty rights and hours she worked is insufficient .
I am really confused now what to do.

I would be grateful if someone could give me their expert advice on this matter and a way forward from this point.

Regards

[nanny]

[quote="momeebuilder"]Hi,
I need some expert advice on this case..

My wife is dual National by birth(British/Irish) she was born in northern Ireland she lived there with her parents till the age of 15 then the family decided to moved here in England and since then she is living here in England.

We are together since 2004. My student visa was expired in 2005. In 2006 I was granted five years residence document now which has already expired in 2011.

I have a establish business here in the Uk, My wife helped me as much as she can in the last five years to run the business but at the same time she looked after six Children as well.

Since I was issued my five year residence card we had three children and due to that her involvement in the business was minimal, she was only doing 1 to 2 Hours a week.

I have applied for PR before the expiry date. My application was refused on the grounds that my wife didn't exercise treaty right with the right of appeal.

Finally the appeal was dismissed in Feb2013 on the same ground that my wife didn't exercise her treaty rights and hours she worked is sufficient .
I am really confused now what to do.

I would be grateful if someone could give me their expert advice on this matter and a way forward from this point.

Regards[/quote] I think you are in a bad situation not because you had your 5 years do not mean that your wife should of stop exercising her treaty right she should have look it up and make sure she was at least in one of the criteria which is exercising her treaty right.

So i suggest you look up exercising treaty rights and see which one would be suitable for her to do which fits around every thing she is currently busy with including bringing up your kids. see which treaty rights is dueable for her and she should start exercising her treaty rights from now until you get your permanent residence it also sounds like you need legal help now because they would know if you should still apply for permanent residence when she start exercising her treaty rights again or if you should start all over again and apply for EEA2 a question which i definately cant answer but Im ever so sorry to hear this is happening to you.. What ever you do good luck and may god bless and keep you both.

[Obie]

Both the decision of the Home office to refuse her application, and the court to dismiss your appeal are wrong in law in my view.

What was your wife been doing prior to you coming to england, and after you came to England. Has she ever worked in her life? if yes, for what period of time was she in employment.

You have the option of either appealing to the Upper Tribunal or reapplying.

But this time you will need to get your wife's whole employment history, in Northern Ireland and Main land UK.

[EUsmileWEallsmile]

There is a complication to the case in that your wife is a dual national, albeit a residence card was issued. In general, the following applies.

If an EU citizen lives in the UK for five years in accordance with the regulations, they will have a right of permanent residence. So, if an EU child national lived with their parents, who exercised treaty rights for five years, they would also have PR.

[momeebuilder]

Big Thank you to all of you guys.

Well yes my wife did worked in the past before I was married to her .
She did voluntarily work in 1999 for six month Pre School (3 Days a week )
She did voluntarily work in 2000 for one and half year ( 3 Days a week)
She did all that work to complete her portfolio and completed her NVQ 1 in Child Care Early years and NVQ level 2.
She was offered part time employment in the local school as a part time integration assistant for special need Children in 2001-02, it was paid employment where she worked five days a week morning only from 2001-02 to 2004.
Since 2005 she helped me to gain my qualification, she helped me to complete my college paper work I have trained myself and become a Qualified electrician and I am also gas safe register Engineer. We Have setup a small company in 2007 for Electrical, Plumbing and Heating work. She is a company secretary and I am the director of the company since then. As I have already mention in my first post that she did only little work due to the young family. Since Nov 2012 she increases her time and now she is doing 25hrs/week .
I had legal help, my very first application before the residence card was expired was submitted by the immigration law firm and I used them all the way to my appeal. I am really disappoint by their service they have provided. It cost me allot and the end result was nil, my solicitor was a time waster and hungry for money that's all he knew . we are in this dilemma because of him.

Also All our Childers are British Citizen.

Any help will be appreciated.

[Obie]

Well, i really dont know why they refused it, or said her work was not genuine or effect, with the consequence that she is not classified as a worker.

It would have been nice to appeal the decision, as leaving an adverse decision unappealed can sometimes come back to hunt you.

On what basis did your lawyer fight your case? did he apply on your behalf to the Upper Tribunal for permission to appeal.

I am of the believe that you do qualify for PR. Did your register her under Payee? was she paying taxes?

[momeebuilder]

I don't know what to say here.

He received my refusal paper from the tribunal on 27 Feb. 2013. He never contact me by any means.

I was worried my self and I called the tribunal last week and that's were I found out that the decision was made on 27th.

I was so disappointed with his negligence that he kept my paper work for what ever reason and never informed me and I have lost the time for appeal which is five days.

[momeebuilder]

She only worked little hours 2 to 3 hours a week since 2007.

she got her p60's but due to the less income, tax and ni was nil.

but since nov2012 she is paying tax and NI .

[Obie]

You can either make an out of time application and ask for permission, or make a fresh application for PR. But this make sure you create a picture of you wifes past activity.

Applying for a new residence card might not be an option in you case, as new rules are in place which prevents British Citizen who also hold other EU citizenship from benefiting under EU law. You best option is to pursue the PR option.

I believe you may have a case, in these circumstance to make a claim for PR.

[vandv]

You can either make an out of time application and ask for permission, or make a fresh application for PR. But this make sure you create a picture of you wifes past activity.

Applying for a new residence card might not be an option in you case, as new rules are in place which prevents British Citizen who also hold other EU citizenship from benefiting under EU law. You best option is to pursue the PR option.

I believe you may have a case, in these circumstance to make a claim for PR.

I am not expert but do agree with Obie, i guess you have to withdraw your appeal (if there case) and just make fresh application to PR but my to you advice will be .....if your wife did not working at present you have to identify her in application that she is self sufficient( she can be financial dependent on you and your income ) but in this case you bot have to have comprehensive health insurance..+show them your all income ...this was working for me as i myself NonEEA and working full time but my husband eea national at that time was unemployed for some time... Moreover, being self sufficient means she EXERCISING TREATY RIGHTS IN THE UNITED KINGDOM!
Good luck ....I am sure if you spend couple hours of researching you will be better off applying independently without solicitor.....

[momeebuilder]

As i have explaind previously that my wife did work before we got married. She started work in 1999 and 2004. My question is if she exercise treaty rights from the time I've already mentioned, in this case then she already got her PR and she's a permanent residence. Can anyone explain this please.

[Obie]

You need to seek legal advice on this. We will be undertaking a speculative exercise if we comment on you wifes treaty right or say she has secured PR, without full knowledge of the work she undertook, whether or not it was effect and genuine, and of economic value to the employer.

I must point out that the activity you mentioned she undertook about, between 1999 to 2007, seem neither effectivebor of economic value to the employer, such that she will be classified as such.

[vinny]

Hi every buddy,

I would really appreciate any help because it's going on for too long and things are not moving forwards.

My Wife is dual national by birth she was born in Northern Ireland. she holds both Irish and British Passport.

we are together since 2004 and we have three children and they are all British citizen.
AGE NO.1 8YRS NO2. 6YRS NO.3 3YRS

We are self employed with limited company
Running Electrical, Plumbing and Gas Installation business.

I had my RC for five years in 2006 till Nov 2011.

Submitted PR application in Sep/Oct 2011

PR was refused on the grounds that she didn't exercise her treaty rights due to her earnings were less, such earnings has no economical value to the employer and therefore they are refusing my application . I was told to leave the Uk and my passport was retained.

We appealed in the tribunal court but appeal went unsuccessful, case wasn't prepared by my lawyer very well .we explained our situation as much as it was possible but lot of things were over looked in my opinion and it was later refused on the same grounds.

During this time my mother was diagnosed with the cancer and gone through major surgery I was desperate and wanted to visit my mother and therefore I submit fresh application for eea2 in May 2013.

Received COA with permission to work.

Nov 2013 got refusal later again.

Provided all necessary document as per their requirement.

Pay slips as a proof of income and NI contribution
Business Bank Statements
Accountant Letter
HMRC letters
Purchase receipts

This time they refused on the basis that I didn't provide evidence of NI contribution and therefore they are refusing my application and I also have no further basis to stay in the Uk and retained my passport again and want me to leave the Uk.

Just need help please.

Thank you.

Well you got to appeal the decision, with much preparation this time. I express the view before, that your wife has indeed being in the UK for a significant period of time, and to all intense and purpose is likely to have PR and as a result, you will also.

You are better of appealing, but this time prepare better.

[Davmck70]

I do feel sorry about the PR situation. My advice to you is to be very strong as you have a case to answer and the more upbeat you are about it the more your chances of succeeding.
Firstly, HO have no right by law to say you have no further basis to stay in UK considering the fact that you are married to an EEA national and also your family ties (kids and legally married).
Secondly, I will advice you prepare a paper hearing and also attach copies of documentation sent with application as an appendix
Thirdly, be on top of your own case by making sure any correspondence between Respondent: IAC or HO and yourself are sent directly to you and a copy to your solicitor if you have one. Doing that will eliminate gross ignorance from your solicitor which was what led you into this situation in the first instance.
Finally, if you need any help or guidance, just scream it out on this forum.

Wish you the best

[chaoclive]

OP: Where are you living? Is it in Northern Ireland?

If you've been living in Northern Ireland for more than 3 years with your Irish spouse, you may already be eligible for IRISH citizenship.

See this link: http://www.inis.gov.ie/en/INIS/Pages/WP11000014

See these points:
"had, immediately before the date of the application, a period of one year’s continuous residence in the island of Ireland,
had, during the 4 years immediately preceding that period, a total residence in the island of Ireland amounting to 2 years,"

Please note that the ISLAND OF IRELAND includes Northern Ireland.

This option is only available to someone who is the spouse of an Irish citizen...doesn't matter whether that person is also British or not.

If you are eligible, you can contact INIS via this email: (Spouse of Irish National Unit): INISsinu@justice.ie.

This will work, as long as you have been legally living in Northern Ireland. It doesn't work for any other part of the UK.

Also, you will need a criminal record check from the Police Service of Northern Ireland. To do this, please see: https://www.whatdotheyknow.com/request/ ... ing-443873

[chaoclive]

Just realized my above post is irrelevant...only noticed that they are in England...but let's leave it there in case it can help other people.

[momeebuilder]

Could you please help me what shall I do next. Can I ask them to reconsider their decision. Payslips are clearly showing Ni contribution. Don't understand at all.

[Obie]

You are better of apoealing, as UKBA seems reluctant to issue a RC, dispite the case being perfectly clear.

[momeebuilder]

Can i do that with out a lawyer. I have gone through appeal before even i have provided all supporting documents but still they didn't allowed the appeal.

Is there any rule where i can switch from EEA to under immigration rule.

What i don't understand is my wife is already british and even if i look at through eea route she was in the past and still working so technically she is already a qualified person through her employments and secured her pr under eea rule.

Can i switch from eea to under immigration rule and fill form Set M for settlement of british citizen spouse if possible.

[Jambo]

You can't switch in country so you will need to leave the UK. You will need to meet the UK route rules (financial threshold etc) and anyway it would mean restarting the 5 years count for settlement. You can't apply now for SET(M) without being on the UK route.

Stick to the EEA route.

[momeebuilder]

Can i apply for pr again because she is already a qualified person for more than 5 years.

Only reason they are refusing me coz of my sponsor but don't understand that bit if she already secured her pr.

May be a silly question but if my wife apply for her PR will this change any thing for me.

[Jambo]

You can apply again but without addressing the reason for refusal the outcome is likely to be the same.

I fail to understand how your wife has been a qualified person for over 5 years. Which 5 years are you referring to? What did she do during that time to be considered qualified?

[momeebuilder]

She worked as a teacher from 1999 to 2004. Between 2005 and 6 she did some private tution . From 2007 till now as a self employed person. We runing a business together. Between 2005 and 2010 she also had three maternity leave as well which also count as excersing right if i am correct.

[chaoclive]

Any news on this case? Did you get your PR?

[momeebuilder]

Nothing at all back to square one.

Applied for RC after loosing appeal in feb 2013 for PR. Submit RC application in may 2013, submit all supporting documents including her payslips after six months got refusal letter stating that fail to submit NI Contribution proof and because of that they have refused my application and I have no further basis to stay in the uk.

Appeal the decision in Nov 2013. Hearing date in June 2014.

God knows what's next nearly three years now.