EEA ILR, Children Passport Application Refused?

[Vande-Matram]

Good morning

My spouse is an EEA-German who has been resident in the UK since 1999.

As with BREXIT looming, we thought of getting British citizenship for the family.

My spouse sent for PR confirmation with all documents ie continuous work employment since 1999( not a single months payslip or P60 missing) in Apr2016 to the Home Office. Application was successful and received a confirmation of PR from the home office in May 2016.

Then we applied for British citizenship-passport (not MN1) for our children born in UK, as our understanding of the rule is that after exercising treaty rights for a continuous period of 5 years, you are a permanent resident in UK, as one child was born in 2007 and another in 2008. So we thought that since my spouse has been exercising EU treaty rights since 1999, she should have attained a settled-permanent resident status by 2004, and the Children will be born British.

Though, of course she didn't apply for a PR status confirmation in 2004 and posses no document or stamp in her passport confirming her settled status for the period of 1999 to 2004.

One of the child's application has come back from HO as saying that Home Office needs proof that my spouse has ILR for the children to be born British. Awaiting on the second child's application, which probably we think will have the same fate.

I was a bit dazed at first that EEA nationals don't require ILR, they only need PR to prove settled status, then after digging in this knowledgeable forum I came to know that EU PR regulation only came into force after 2006 and before it was ILR which was granted to EEA nationals. We are also trying to get a SAR as to determine for what period the PR was awarded but that still wouldn't be a legal document enough to prove to HO about my spouses PR status or if you guys suggest otherwise?

I also realise that the burden of proof lies on the applicant, How can my wife prove UK residency back dated as at the time of living in UK in 1999-2004, as she never bothered to apply for ILR?

All help greatly appreciated and any suggestions if you guys think our understanding of the EU law is wrong will also be very helpful as we are going to call the home office to see what can be done.

Thanks

[secret.simon]

We are also trying to get a SAR as to determine for what period the PR was awarded but that still wouldn't be a legal document enough to prove to HO about my spouses PR status or if you guys suggest otherwise?

Sensible to get an SAR done.

Ironically, because PR status is granted by the law and not a government department, there is no legal documentation that is generated that you have acquired PR.

ILR was available on demand (not automatically) to any EEA citizen who requested it before October 2000. As I understand it, EEA citizens did not have the right to either ILR or PR between 2000 and 2006, but after 2006 could acquire PR automatically after any five year continuous period of exercising treaty rights, even preceding the 2006 Regs.

If your EEA German wife has not stopped working between 1999 and 2004, she would have acquired PR automatically in 2006 (when the EEA Regulations came into force).

On these forums, we recommend that you only send proof of the earliest five year continuous period of exercising treaty rights. That way, the Home Office caseworker can not miscalculate the date of acquisition of PR.

[noajthan]

MN1 guidance shows what is required for minors born after 2006, namely proof of parent's settled status before minor's date of birth:
https://www.gov.uk/government/uploads/s ... r_2015.pdf

Obviously (and as seen in several recent cases), a poorly trained and/or overworked HMPO caseworker may not understand the nuances of the case especially when presented with a recently-issued DCPR or PRC.

Did you formulate children's passport applications based on this HMPO guidance and with appropriate supporting evidence from back in the day
https://www.gov.uk/government/publicati ... plications

If no ILR stamp in passport (or ILR-related letter) from 19-forgotten then evidence of EC/EU rights (from say 2001-2006 or so) should cut the mustard.
Note DWP (benefits) letter is obtained via JobCentre Plus.

[Vande-Matram]

Called HO and they are adamant that we DEFINITLY need an ILR to cover the 5 years prior to the birth of a child, as the PR document we have sent is not sufficient proof. We also tried to explain that at the time of PR we had sent payslips and P60's and so also with the children's passport application. Trying to argue with call centre workers is not really a way forward I guess, as they sometimes do not know the law itself.

If your EEA German wife has not stopped working between 1999 and 2004, she would have acquired PR automatically in 2006 (when the EEA Regulations came into force).

As you suggest, Do you think the 2006 EU regulations also provide proof of settlement for periods prior to 2006, for example, If someone lived for continuous period of 2001 to 2005 and applied for settlement in 2006, do you think he would receive PR or ILR?

Did you formulate children's passport applications based on this HMPO guidance and with appropriate supporting evidence from back in the day

We had done all as per TABLE A - We sent all payslips/p60's and proof of residence, spouse is full time employed at one place since arriving in in UK.

In Table B of the guidance, I am not able to understand the start of the sentence/underlined as below
"If the applicant was in the born in the UK on or after 30 April 2006

What are other prospects, if we are not able to prove this ILR situation to HO's satisfaction, can this be taken to any other judicial system's in anyway to prove residency?

[Vande-Matram]

Forgot to thank you guys, pretty much stressed out, I guess

[vinny]

Lassal may assist.

[noajthan]

Called HO and they are adamant that we DEFINITLY need an ILR to cover the 5 years prior to the birth of a child, as the PR document we have sent is not sufficient proof. We also tried to explain that at the time of PR we had sent payslips and P60's and so also with the children's passport application. Trying to argue with call centre workers is not really a way forward I guess, as they sometimes do not know the law itself.

If your EEA German wife has not stopped working between 1999 and 2004, she would have acquired PR automatically in 2006 (when the EEA Regulations came into force).

As you suggest, Do you think the 2006 EU regulations also provide proof of settlement for periods prior to 2006, for example, If someone lived for continuous period of 2001 to 2005 and applied for settlement in 2006, do you think he would receive PR or ILR?

Did you formulate children's passport applications based on this HMPO guidance and with appropriate supporting evidence from back in the day

We had done all as per TABLE A - We sent all payslips/p60's and proof of residence, spouse is full time employed at one place since arriving in in UK.

In Table B of the guidance, I am not able to understand the start of the sentence/underlined as below
"If the applicant was in the born in the UK on or after 30 April 2006

What are other prospects, if we are not able to prove this ILR situation to HO's satisfaction, can this be taken to any other judicial system's in anyway to prove residency?

On or after whatever date in 2006 those on EU trajectory would have acquired PR.
If sponsor has no ILR stamp or letter then forget ILR - you are now aiming to (re)confirm acquisition of PR but for a 5 year period up to 2006/7.
Time spent acquiring this happy state may have commenced prior to 2006.

When HMPO/helpline refer to "ILR" they maybe bandying terms around rather loosely, after all caseworkers are no immigration lawyers.
Or they may not understand EU route; helpline opo may have thought you were on UK domestic route.
Parent just has to be settled, that is free from immigration time restrictions ie with ILR or PR.

You need to be dealing with this in writing rather than chatting to helpline operatives.

Passports are issued by Royal Prerogative so there is no statute law to refer to;
(based on my family's dispute with HMPO) its going to be a bit like wrestling jelly.

I don't see such a typo in the HMPO guide - do you have latest version?
3rd row, Table B clearly applies to you.

Work to Table B (as well as A), suggest reassemble and resubmit evidence along with cogent covering letter referencing the HMPO guidance - it is HMPO's Table B after all.
Have you got a DWP letter (yet)?

A passport / document showing a UK Residence Card or Registration Certificate issued five years before the child’s birth and a letter confirming that the parent(s) were not receiving benefits during that period;
• A statement from HM Revenues & Customs showing yearly totals of credited National Insurance between the relevant dates;
• A statement from HM Revenues & Customs confirming tax returns between the relevant dates;
• A letter from an employer and documents showing evidence of employment between the relevant dates e.g. P60's / payslips

[Vande-Matram]

I don't see such a typo in the HMPO guide - do you have latest version?
3rd row, Table B clearly applies to you.

Work to Table B (as well as A), suggest reassemble and resubmit evidence along with cogent covering letter referencing the HMPO guidance - it is HMPO's Table B after all.
Have you got a DWP letter (yet)?

A passport / document showing a UK Residence Card or Registration Certificate issued five years before the child’s birth and a letter confirming that the parent(s) were not receiving benefits during that period;
• A statement from HM Revenues & Customs showing yearly totals of credited National Insurance between the relevant dates;
• A statement from HM Revenues & Customs confirming tax returns between the relevant dates;
• A letter from an employer and documents showing evidence of employment between the relevant dates e.g. P60's / payslips

It is there, I wonder if it is a TYPO then if it does not mean anything, from the link, PDF guidance document TABLE B - start https://www.gov.uk/government/publicati ... plications

You are right we should work towards TABLE - B and send all documents.

We dont have the DWP letter, but work my way to get it.

[noajthan]

It is there, I wonder if it is a TYPO then if it does not mean anything, from the link, PDF guidance document TABLE B - start https://www.gov.uk/government/publicati ... plications

You are right we should work towards TABLE - B and send all documents.

We dont have the DWP letter, but work my way to get it.

I meant 3rd row Table A & 1st row Table B - applies to you.

DWP letter from:
https://www.gov.uk/government/organisat ... -about-you