Application for Permanent Residence Card refused.Help/advice

[walkthisway]

Hello everybody.
As a European citizen I made my application for the permanent residence card and unfortunately today I received a letter from the Home Office stating that it's been refused.

It says (this is a copy and paste, including potential mistakes) : "Whilst it is accepted you have been a student and are currently employed, the first six months of jobseeking would have been accepted as exercising treaty rights. It is noted that you have been a jobseeker for 4 year the United Kingdom from 2011 to 2015 as stated in your application form and therefore anything over the first 6 months whilst jobseeking can not be accepted as exercising treaty rights in the United Kingdom. As a result, this department is unable to establish that you have been exercising Treaty rights in the United Kingdom for a continuous period of 5 years whilst being a student, a job seeker and employed."
It also says that I'm entitled to appeal.

I've been in the United Kingdom since the 2010. So far continuously for over 5 years. The first year I was a University Student. From the end of 2011 to half 2015 I've been working on and off, doing odd jobs, agency temporary assignments, 0 hour contracts jobs. I signed on and off in between those. From the 2nd half of 2015 I finally have a permanent decent job.

I applied to the permanent residency card because I genuinely thought that I qualified. If I didn't, I would have not wasted my time and their time.
As stated in the Eligibility of the EEA (PR), "You must have lived in the UK for a continuous period of 5 years : - an EEA national 'qualified person' (worker, self employed, self sufficient, student or jobseeker). This first line is enough, I don't need to mention the rest.
It doesn't say anywhere that if you've been on JSA for over 6 months, the rest of the time doesn't count and it's lost. At the time I was a jobseeker, I never received any letter from the JobCentre (or anywhere else) stating that after 6 months you stop exercising Treaty Rights. If that was the case, I'm sure they would have stopped all my benefits, and in fact they didn't.
I know that now though, with the current legislation, europeans in the UK can sign on for only 6 months after which their benefits are stopped and they need to prove in what form/entitlement they can stay in the country. It wasn't the case back then.

I'm shocked and I didn't expect this type of answer. What would you suggest me to do? Is it worth to appeal? Do I have any chances at all?

Thanks for your patience. Any help will be highly appreciated.

[noajthan]

Hello everybody.
As a European citizen I made my application for the permanent residence card and unfortunately today I received a letter from the Home Office stating that it's been refused.

It says (this is a copy and paste, including potential mistakes) : "Whilst it is accepted you have been a student and are currently employed, the first six months of jobseeking would have been accepted as exercising treaty rights. It is noted that you have been a jobseeker for 4 year the United Kingdom from 2011 to 2015 as stated in your application form and therefore anything over the first 6 months whilst jobseeking can not be accepted as exercising treaty rights in the United Kingdom. As a result, this department is unable to establish that you have been exercising Treaty rights in the United Kingdom for a continuous period of 5 years whilst being a student, a job seeker and employed."

It also says that I'm entitled to appeal.

I've been in the United Kingdom since the 2010. So far continuously for over 5 years. The first year I was a University Student. From the end of 2011 to half 2015 I've been working on and off, doing odd jobs, agency temporary assignments, 0 hour contracts jobs. I signed on and off in between those. From the 2nd half of 2015 I finally have a permanent decent job.

...

I'm shocked and I didn't expect this type of answer. What would you suggest me to do? Is it worth to appeal? Do I have any chances at all?

Thanks for your patience. Any help will be highly appreciated.

See decision maker's guidance (DMG):

15 Where a claimant is relying entirely on a right to reside as a jobseeker for the entire 5 year period for calculating permanent residence, it should be accepted that the immigration regulations would be satisfied in those circumstances. This is because an EEA national acquires the right to reside in the UK permanently, where they have resided in the UK, in accordance with the immigration regulations for a continuous period of 5 years. Where a claimant has been awarded JSA(IB) on the basis of having a right to reside as a jobseeker, it should therefore be accepted that their continuous period of 5 years of pure jobseeking, would be sufficient for the acquisition of permanent residence.

Note 1:
An accession state national, whose JSA claim commenced within the accession period, must have satisfied the accession regulations, in order to have had jobseeker status.

Note 2:
With effect from 1.1.14, an EEA national cannot have a right to reside as a jobseeker or retained worker for longer than their relevant period, unless they provide compelling evidence that they are continuing to seek employment and have a GPoW (see DMG073092).

As such, unless they can demonstrate an alternative right to reside, their right to reside as a jobseeker or retained worker would cease at the end of their relevant period and they would no longer be residing legally in the UK.

Rules evidently changed in January 2014.

Amendments changed Regulation 6 to add the following paragraph:

(7) A person may not retain the status of a worker pursuant to paragraph (2)(b), or jobseeker pursuant to paragraph (1)(a), for longer than six months unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged.

Suggest you dig into the meaning of relevant period as that appears critical to your case, that & having a GPoW = genuine prospect of work.

Good luck.

[walkthisway]

I wonder how at the Home Office they're not aware of these things/ or don't make the effort to study the case and check the the previous regulations relevant to the case.

Based on what you quoted it looks like I totally qualify. Am I correct?

What do you suggest me to do? Contact a lawyer? Or appeal by myself stressing on what you quoted? There is nobody I can ask advices to, and the people at the call centre of the Home Office don't seem to know much.

[noajthan]

I wonder how at the Home Office they're not aware of these things/ or don't make the effort to study the case and check the the previous regulations relevant to the case.

Based on what you quoted it looks like I totally qualify. Am I correct?

What do you suggest me to do? Contact a lawyer? Or appeal by myself stressing on what you quoted? There is nobody I can ask advices to, and the people at the call centre of the Home Office don't seem to know much.

You are very prudent not to rely on HO helpline.

It looks like you may have qualified in the jobseeker category of qualified person, before 2014.
Assuming ofcourse you have adequate documentary supporting evidence.

It's not so clear cut since 2014.
You need to find out what the reference to 'relevant period' means.
Perhaps other members can offer their insights on that too.

There's also the question of having to demonstrate 'gpow'.

Would you say you submitted robust evidence in your first application or was your documentation patchy?

[walkthisway]

My documentation was very solid providing evidence from different sources like university, bank, council, NHS, Jobcentre, HMRC, Doctors etc...covering the entire 5 years period. All original documents.

If the jobcentre kept me going it means that I always provided evidence regarding interviews and my prospect of work. The Home Office should be in touch directly with the jobcentre rather than just making assumptions.

I would like to add the paragraph just before the one I copied above (again I copy and paste/including mistakes) :
"Regulation 6(2)(b) stipulates that a person who claims to be a qualified person in the United Kingdom as a jobseeker must.
(i) have registered as a job seeker and were employed for at least a year before become unemployed
(ii) have been unemployed for no more than six months, or
(iii) can provide evidence that they are seeking employment in the UK and have a genuine chance of being engaged.

Your application and has been considered and the following has been ascertained from the evidence provided :
. You have been a jobseeker for a period in excess of six months
. Your EEA national sponsor has not evidenced that they are actively seeking work and have a genuine chance of engagement."

All these regulations are just recent and didn't apply to me in 2011. I didn't have to be employed for at least a year in order to sign on.

[noajthan]

My documentation was very solid providing evidence from different sources like university, bank, council, NHS, Jobcentre, HMRC, Doctors etc...covering the entire 5 years period. All original documents.

If the jobcentre kept me going it means that I always provided evidence regarding interviews and my prospect of work. The Home Office should be in touch directly with the jobcentre rather than just making assumptions.

I would like to add the paragraph just before the one I copied above (again I copy and paste/including mistakes) :
"Regulation 6(2)(b) stipulates that a person who claims to be a qualified person in the United Kingdom as a jobseeker must.
(i) have registered as a job seeker and were employed for at least a year before become unemployed
(ii) have been unemployed for no more than six months, or
(iii) can provide evidence that they are seeking employment in the UK and have a genuine chance of being engaged.

Your application and has been considered and the following has been ascertained from the evidence provided :
. You have been a jobseeker for a period in excess of six months
. Your EEA national sponsor has not evidenced that they are actively seeking work and have a genuine chance of engagement."

All these regulations are just recent and didn't apply to me in 2011. I didn't have to be employed for at least a year in order to sign on.

So they say you failed on 6 (2) (b) iii), the gpow test.

HO applies some Regulations retrospectively - I don't know if that is the case here.
Or whether you just fell foul of an underhand &/or poorly-trained caseworker.
This may give you grounds for an appeal/review.

Who are they referencing by: "your EEA national sponsor" ?

Did you apply in own right - or did you have an EEA sponsor?
If you have a sponsor it is their evidence of exercising treaty rights that would need to be submitted & not yours (if you are the dependent).

[walkthisway]

I had no sponsor and didn't apply for one.

[noajthan]

I had no sponsor and didn't apply for one.

Hmm, so they mean 'you' when they say 'Your EEA national sponsor has not evidenced ...'
OR
they misunderstood your application in some way & thought you had a sponsor;
possible additional ammunition for an appeal (procedural flaws).

Main questions remain:
about meaning of 'relevant period'
&
how you address the gpow test; & is it even in scope for you

[walkthisway]

The appeal costs money and it doesn't even specify how much.
Wouldn't it be easier to call somebody from the Home Office and speak directly with them? I'm sure it's not possible. How complicated is the world.

Is it better to approach a lawyer expert in this subject?

[walkthisway]

Oral Hearing costs £140.
On papers £80.

[CR001]

Did you have comprehensive sickness insurance while you were a student?

[walkthisway]

Not that I'm aware of. I don't think I needed one.

[CR001]

If you are a student or self sufficient, you are only a 'qualified person' if you held comprehensive sickness insurance or a non UK EHIC card.

[walkthisway]

I didn't need any insurance at the time. It was just one year for a postgraduate study. My parents were supporting me. I didn't get sick and if it happened I could have used the NHS.

[noajthan]

The appeal costs money and it doesn't even specify how much.
Wouldn't it be easier to call somebody from the Home Office and speak directly with them? I'm sure it's not possible. How complicated is the world.

Is it better to approach a lawyer expert in this subject?

Talking to helpline is worst thing to do, it is unreliable & the advisors are not accountable for their advice.
You can't sort this out by chatting to HO.

Can you post your precise timeline:
Dates, category of economic activity.

Also statewhen you had an EHIC (if any) ie in lieu of CSI.
Also note any RC you have had.

If 2010-2013 stacks up you may be able to argue against gpow.

Note not having CSI goes against you claiming stufdent status;
unless you had a foreign EHIC or, possibly, a student RC.

Then its question of what, exactly, you did 2014-2015.

At least you can argue you had gpow after 1st 6 months of this latter period as you did land good job.

Then you can decide whether to go to lawyer to fight your corner or try 'diy' (backed by forum).

[noajthan]

PS Are you an A8 or A2 national?

If so did you register for WRS/WAS at appropriate time?

[walkthisway]

PS Are you an A8 or A2 national?

If so did you register for WRS/WAS at appropriate time?

I'm not an A8 or A2 national.

[noajthan]

PS Are you an A8 or A2 national?

If so did you register for WRS/WAS at appropriate time?

I'm not an A8 or A2 national.

One less factor to worry about then.

Can you post timeline details as just requested...

[walkthisway]

Never owned a car and I registered to my local surgery the first week I arrived (as I was advised).
Can I write you the timeline privately?

[noajthan]

Can I write you the timeline privately?

As you wish if you require privacy.
However other members won't be able to help.

How about edited highlights? or pm if you really need to.

[CR001]

@noajthan, the OP is unable to utilise PM function until 30 posts have been made.

[secret.simon]

Better to place your timeline in the public forum so that others can advice you as well.

If you did not have Comprehensive Sickness Insurance when you were a student, your student period can not be considered for the purpose of "exercising treaty rights". That is EU law, not Home Office law. So, your PR clock will have started after you finished your studies. Alternatively, you can claim to be exercising treaty rights through that period by either working or seeking work.

As regarding the Home Office contacting the Job Centre to verify that you were seeking work, firstly, they may have checked your records. Secondly, the DWP and Home Office interpretation of EU requirements can vary. For instance, the DWP considers you to be exercising treaty rights by working only if you are earning more than £153 per week, the level at which you start paying NI. The Home Office considers you to be working if you have records at HMRC stating that you are getting paid.

[walkthisway]

I would like also to mention that I have 14 calendar days to appeal after I'm sent the notice of the decision by the Home Office.
The Home Office decision is dated the 29th of December. The packet with the letter and the documents was delivered home on the 2nd of January but nobody was there to sign so it stayed at the delivery office until today that I've been able to collect it.
Are the 14 calendar days already gone then?

[noajthan]

@noajthan, the OP is unable to utilise PM function until 30 posts have been made.

@CR001 you help those of us with heads in the clouds keep our feet on the ground.

[walkthisway]

The CSI is not mentioned at all in the reasons why my application has been rejected.