RC Refusal and appeal process #2....help please

[soniac]

Hello everyone, some of you may remember me from about this time last year when my partner was refused a Family Permit as they questioned the durability of our relationship (unmarried partners since june 2009...I am Italian and he from Mexico) We appealed and 4 months later the home office withdrew the refusal and he was granted the FP and joined me in London in September.

RC application made in November and once again we have received a refusal yesterday as the home office claim I am not exercising my treaty rights. I work for an agency as a primary school teacher and at the time of the application I had been at the same school for over a year. They rang the school just last week and were told the maternity cover I was doing had ended. I know I should have included a letter from the agency explaining all this, however rather than requesting more information they just refused. And whats worse is that they have reason to believe that the letter I had provided by the school is not genuine and that we have tried to decieve the home office....but they had been told on the phone by the school that I had been there until the end if the maternity cover so they have no right to make that accusation.

So here we go, entering appeal process number 2....any suggestions in how i should do it? Paper or oral? I did paper appeal for the FP but am wondering if the oral process is quicker now that we are in country.

Also, my partner is able to remain here with me until this is all sorted correct? I refuse to spend any time apart as they already caused ys to lose 6 months together when we went through the FP appeal and I will not have it again.

Any advice/suggestions friends would be so appreciated as I enter into yet another round with them!!!

[EUsmileWEallsmile]

Firstly, there is no need for your partner to consider leaving, he has been recognised as being an other family member (though it would be better if he does not travel until this is sorted out).

What is at issue is evidence that you are exercising treaty rights. As long as you are a worker (or student / self-sufficient person with CSI) you and your partner are covered by the regulations.

I would be inclined to appeal and complain. In your complaint include evidence of your current employment status. Make it clear that you are not reapplying and expect residence card to be issued promptly. It would appear that you have or are approaching six months already.

[soniac]

They said in the letter that,

[b]"Regulation 26 of the Immigration (EEA) Regulations 2006 confers a right of appeal against this decision. However this does not mean that, if you choose to appeal, you will be entitled to remain in the United Kingdom whilst the appeal is being considered.

If you wish to appeal you should state your reasons for staying in the United Kingdom on the form Notice of Appeal. You do not have to repeat any reasons you have already given us but if you do have any more reasons, you should disclose them now.

If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the decision is refused.

This requirement to state your reasons is made under section 120 of the Nationality, Immigration and Asylum Act 2002."[/b]

What does this mean?

[soniac]

Also, on which grounds do I make the appeal. These are my options:

* that the decision is not in accordance with immigration rules
* that the decision is unlawful because it racially discriminates against you
* that the decision breaches rights which you have as a member of an EEA National's family under Community Treaties relating to entry or residence in the UK
* that a discretion under the immigration rules should have been exercised differently
* that the decision is otherwise not in accordance with the law

??????

[Obie]

You only continue to qualify as a worker, if after the fixed contract, you registered as jobseeker. You don't automatically qualify for that status.

You need to appeal on the basis that the refusal breaches a right of your under the community treaties, and your ECHR rights.

[EUsmileWEallsmile]

You only continue to qualify as a worker, if after the fixed contract, you registered as jobseeker. You don't automatically qualify for that status.

@Soniac, It might be worth you clarifying the nature of your employment contracts. From what I can gather you are a supply teacher. Do you tend to have periods of employment followed by unemployment or is it more a series of contracts?

Despite the home office's words; there is no need to panic and consider leaving the UK. Being a person residing in accordance with the regulations is very easily met. Hypothetically, even if you were not considered to be employed, but had sufficient funds and health insurance, you would be covered.

[soniac]

I am employed by a teaching agency where I have been given long term roles and when not in long term role I work as a day to day supply(which is what I am currently doing). When we made the application I was in a long term at the same school for over a year and I had provided a letter from them....when they rang the school I had already completed my contract there, and this is why we have been refused. Shouldnt they have requested more information from us rather than to be quick to refuse? Will it make any difference now that this school has now employed me full time for September so I will be leaving the agency to do this? For the appeal I will have to get a letter from my agency to rectify this I suppose and provide my statement of earnings, bank statements and wage slips so they can see I have been earning this entire time.

[soniac]

Please help...in section 3, number 8 of the appeal form,

"Statement of additional grounds:

If your notice of decision requires you to make a Statement of additional grounds, you should make the statement in the box below.

You should include any reasons why you think you should be allowed to stay in the United Kingdom. This includes why you wish to stay here and any grounds why you should not be removed or required to leave."

Our notice of decision says to state these reasons....the fact that my partner is my family and I am exercising treaty rights, is that enough to include?

[EUsmileWEallsmile]

To me, it appears that you are a worker. You would do well to read article 7 of directive 2004/38/EC to ensure that you retain the status of worker when you are between jobs. (I don't think it is an issue for you).

A permanent position will simplify providing evidence, but in today's employment market, your situation is far from unusual. You are a worker.

[wiggsy]

You only continue to qualify as a worker, if after the fixed contract, you registered as jobseeker. You don't automatically qualify for that status.

doesnt the fact he is an agency worker show that she is registered with job agencys and therefore qualify the job seeker requirement? - he doesnt need to show he is registered with JCP does she?

She will technically be employed for the agency still? or? - the main question is: Who paid the wages / provided pay slips? - the agency or school...

who pays the wages is your employer...

It might be well to explain that the agency are your "employers" and the school contracted your services via your employer (the agency)...

(after seeing yourr still doing day to day supply... this looks clear that your the agency's employee and not the schools).

if you have your payslips by the agency, i assume you have the contract from the agency? - the employer has to do a letter to state that they are your employer if you request it (just ask for a letter outlining your wages for the last x months, your position, and so on) - they will provide it on letter headed paper...

[soniac]

That is exactly what I am going to do...the agency will write me a letter explaining that I am employed through them, and that they send me out for long term roles and when not in a long term role, I do day to day supply....at the time of the application I was in a long term role and that school was happy to write me that letter, however it was my error in that I should have provided a letter from the agency instead. I just find it terrible that they automatically refused rather than contacting me to see if I was still working and to provide them with further documents. Also, my wage is paid by an umbrella company and I had those included, so had they called the number on my pay slips, they would have been able to see that I was still being paid this entire time therefore I was working. They said that in making this decision they considered certain documents, including the wage slips, however they didn't consider them otherwise they would have called.

AND when they called the school, they didn't ask to speak to the headteacher or deputy headteacher who wrote the letter, they spoke to someone in the office. Had they asked for the correct person, they would have informed them better of the situation. I know that it rests on us the applicants to provide all the information and proof, however it seems as though it is just an open the file/close the file system.

In the appeal, do I mention that it was my error and that I am rectifying this with the letter from my employment agency and umbrella company?

They also said that Regulation 26 of the Immigration Regulations 2006 confers a right of appeal against this decision. However this does not mean that, if you choose to appeal, you will be entitled to remain in the United Kingdom whilst the appeal is being considered and that we should state the reasons for staying in the UK.

How do I answer this being unmarried partners?!?!?!?

[soniac]

Sorry, another question as I am trying to sort this all out since working full time limits my time in the evenings.

Does anyone think I can ask for a reconsideration of application while appeal is in process if I send the caseworker/home office the letter from the agency?