Refused: EEA4 application. Please help.

[Springbok]

Hi all,
I recently posted on another forum regarding documents required for a successful EEA4 application. My application has now been refused and I need some advice. This is my background to my story:

My wife is a Spanish national who has been living and working in the UK since 2004. I'm South African, arrived in the UK March 2006, we met that year and got married September 28th 2007. We have a son, born 8 Jan, 2011. I applied for my Family Member of an EEA National permit and received it around April 2008.

The permit lasted for 5 years and expired early April this year 2013. Unaware that I could have applied end of last year (as my wife and I had been married for 5 years by September 2012) I applied for EEA4 toward the end of my permit.

The only issues I saw before applying was that my wife stopped working in November 2012 to be at home with my son, as childcare costs and stress placed on us meant that it would be better that way. I can support them now anyway. I also receive a small housing benefit each month, however NONE OF THESE WERE ISSUES HIGHLIGHTED IN THE REFUSAL?

The refusal was based on the fact that I apparently did not provide enough evidence that my spouse was exercising her treaty rights between 2008/2009, and that the documents provided (a printed off HMRC online p45, which apparently means nothing to them) were not good enough. They point out that they can only rely on the evidence given that my wife was exercising treaty rights for 4 years. Granted, our mistake. But due to this, they are telling me to leave the country and have retained my passport. Could they just not have asked for the documents and simply delayed the application?

I contaced the UKBA who told me that if I have the documents I can send it all back in to them with the case number (to marry up my passport with the new application) and a cover letter explaining everything. What I am concerned about is that they won't look at things retrospectively; in other words, they will see my wife is not exercising treat rights NOW, despite exercising treaty rights in the past (working without a break in employment) and will refuse the application base on current circumstances. Am I correct in assuming this?

Alternatively:

I have approached a solicitor wants to charge me around £700 to go the ILR route, but as my wife is unemployed, the solicitor told me to get private health insurance before I apply. Also she said I must get my wife into employment again. That is going to be very difficult at the moment.

Bottom line, if I go with the solicitor and the application is refused, I will need to leave the country in debt, leave my family behind and fight from South Africa to meet them in Spain.

So what should it be?

Do I take a chance with the EEA4 application again myself (cheapest)? Or do I take a chance, pay a lot of money and go with the solicitor?

Any help would be much appreciated.

Many thanks,

Brian

[el patron]

Make a fresh application and appeal in tandem, you can represent yourself to save expense, it seems like a straightforward appeal argument. Just get more evidence to cover the relevant period for the appeal (you'll require that for the fresh application anyway).

[Graham Weifang]

This is similar to a question I asked a few days ago.

Essentially, when your wife was exercising her treaty rights in Spain, all those documents must be safe guarded with your life.

They need to be produced to get the EEA2, but more so, they must be produced again, 5 years down the time line, for the EEA4.

I think when we get our documents, we will safe deposit then I feel.
Take them out for EEA2, then back in the box, to come out again for EEA4.

GW.

[Springbok]

Make a fresh application and appeal in tandem, you can represent yourself to save expense, it seems like a straightforward appeal argument. Just get more evidence to cover the relevant period for the appeal (you'll require that for the fresh application anyway).

Thank you El Patron. Yes it does seem pretty straightforward. The only issue is that, although my wife has exercised treaty rights up until November 2012, she is currently on working and we do not have private medical insurance or anything like that.

Would something like this count against me if I were to make a fresh application (with the missing documents now present, obviously)?

What I'm saying is that would they look at it retrospectively the she WORKED for at least 5 years continuously so it's fine, and not that she is currently not working?

Thanks again.

[Springbok]

Allow me to rephrase what I was planning, just in case I was unclear, which I tend to be because of the stress (apologies!):

What I was planning was sending in everything that was sent back. Nothing new, as she is not working and we do not have private medical insurance. She is also diabetic and relies on her insulin from the NHS.

You are saying that I should reapply with current evidence as well as the old docs + originally missing docs?

Again the fact is we have no evidence of her working now as she hasn't worked since November last year.

[Graham Weifang]

I thought EEA4 applications, were based on documents about what she was doing when she was exercising her treaty rights, in Spain, as your example.

Could be wrong though.

GW

[Jambo]

I thought EEA4 applications, were based on documents about what she was doing when she was exercising her treaty rights, in Spain, as your example.

Could be wrong though.

GW

Graham - The OP wife is Spaniard working in the UK. This is not the same case as a British working in Spain returning to the UK. In the former, the employment in the UK is what that matters. In the latter it's the employment in Spain that matters.

[Springbok]

So what's your take on this, Jambo? Under the circumstances, if I send the documents in again as they were along with additional proof, do I stand a chance of attaining PR?

Thanks

[vinny]

I have approached a solicitor wants to charge me around £700 to go the ILR route,

Doomed to fail.

[vinny]

Note that if your wife had been continuously exercising treaty rights since 2004, then she attained PR in 2009.

[Springbok]

Thanks vinny.

I would assume that my wife automatically attained PR, but she did not "apply" for it as she didn't know the law. Therefore the only headache with that is that we needed to provide all the evidence of her employment and self sufficiency. If she had her PR document, we would not have had to submit all that paperwork. That I understand and I was refused due to the lack of some documents. We are now in the process of getting these documents, as well as bank statements for that period to back up the evidence.

My question was, if I submit the exact same documents as before along with documents proving she worked 2008/09 as requested by the UKBA, would this solve the problem.

OR

Would they look at current circumstance and deny it anyway as she is not working now?

Would they look at 2004 - 2009, for example? OR 2007 - 2012 AND beyond?
Apologies if I am unclear, and I'm a noob when it comes to the law, so I need this explained to me in a little more detail.

I appreciate all the responses so far.

[vinny]

Any preceding continuous five years, exercising treaty rights, will be sufficient for PR. After that, 15(2) applies.

[Jambo]

They will look into what ever you provide.

If you provide evidence for 5 continuous years, that would be accepted even if the 5 years ended a few years back. Please note that she will need to provide evidence that she has not left the UK for more than 2 years since the end of those 5 years so a utility bills for each year since 2009 should do the trick.

As for the removal comment in the letter, just ignore that. It's a standard letter which is issued for all refusals regardless of the reason.

Just reapply with the required documents. You can add a cover letter linking the documents to your previous application. That might help speeding up the application.

[Springbok]

They will look into what ever you provide.

If you provide evidence for 5 continuous years, that would be accepted even if the 5 years ended a few years back. Please note that she will need to provide evidence that she has not left the UK for more than 2 years since the end of those 5 years so a utility bills for each year since 2009 should do the trick.

As for the removal comment in the letter, just ignore that. It's a standard letter which is issued for all refusals regardless of the reason.

Just reapply with the required documents. You can add a cover letter linking the documents to your previous application. That might help speeding up the application.

That is exactly what I was getting at and wanted to confirm. She had successfully exercised treat rights in the past on a continuous 5 year stretch during our marriage and before, so there should not be a problem. I will throw a room full of paperwork at them to prove it.

Guys, thank you so much for your input.

I will submit the documents myself to save costs and provide more evidence than needed. This will be much cheaper. If all else fails, I will take it to the tribunal. I'm not just going to walk out of the UK without a fight. I've paid my taxes and done everything legally so I will fight my corner. You all have been a great help.

You have put my mind at rest and I will post a follow up once all is done. If anyone has anything else to add please go ahead as I am open to any options while I wait for the outstanding documents.

[Jambo]

Just make sure the cover letter is clear and simple. Provide details for your previous application and explain that you are submitting evidence to cover 2004-2009 (+ evidence she didn't leave the UK since).

As a side note - I guess you are aware of this but if your child was born in the UK, he is already a UK citizen from birth (as born in the UK to a parent with PR status). I know that Spain doesn't allow dual nationality but the UK does and whenever in life he would wish to exercise his British nationality he could do so (but this might affect his Spanish citizenship).

[Springbok]

@Jambo
Yes, my son was born here, but for some reason my wife wanted him to have a spanish passport. But I get what you are saying, that he can exercise this right if he so wishes. Thanks for that.

[Springbok]

Hi all! Quick update: We have gotten all the documents together that we could. Something that seems quite strange is that the documents they were "missing" from 2008 - 2009 are also "missing" from my wife's folder at home when we checked after receiving everything back from the UKBA. We both recall seeing those P60's and P45's before we applied but thought we had not sent them. Now we can't find them?

My wife has a feeling it was sent the first time, but perhaps they have gone missing at the UKBA? Oh well, her previous employers were helpful enough to provide more P60s/45s along with references and she also got an employment history statement from the HMRC covering that period, so that should do it. We also provided her bank statements to back up earnings all the way back from 2005 - 2013 as well as as much documents to back up the fact that she has in fact been exercising treaty rights since the the beginning of 2005. If they turn this down, then I don't know what to do.

We have now submitted everything and await an answer from them. Will keep you updated. Thanks again.

[Plum70]

Looks like you have more than covered the bases including proving that your wife has not been absent from the UK for more than 2 years post-PR acquisition. I do not see how the UKBA can justify refusing to confirm your PR status this time round.

Would be interested to know the outcome (which I expect to be positive) so please post back when you do hear from the UKBA.

I will not wish you luck because you do not need any!

[Makendlas]

Me and me wife are not longer liven together and I need apply for EEA4, we are Legally married for just over 5 years, they ask on application for evidence of Relationship for the last five years and I don't have it, she told me that she won't help with this, she will only give her passport, if I need so, what should I do now?

[Springbok]

Hi all!

Sorry to only get back to you all now with this. It has been a really busy winter at work and we have been plagued by multiple family dramas, but nothing fatal!

I just wanted you to know that it all worked out perfectly. I resent the documents with extra documents as suggested. I received my permanent residence within a couple of months! We are so happy and I couldn't have done it without the help I received from the kind people on this site.

We have since had a new addition to the family, a baby girl, born January this year. Even though times aren't easy, the fact that we can all be together is in huge part thanks to people like you who take the time to help others.

Thank you Jambo, El Patron, Vinny, Plum70 and anyone else I forgot to mention. THANK YOU SO MUCH!