McCarty jugement , risk of deportation.

[Amine-medini]

Hello everyone
I am early in need in some light into this thing my lawyer just ask me for another2000£ to lodge an appeal against a decision for eea(fm) and he say it may get take a year to list the appeal .
So I cut off business with him and ask for a refund because I. Ant afford any of that time or money . I will try to explai. My complex case by date and main events
I am non EEA national my wife is Irish /British national applied under self suffisent and her being Irish citizen .

2010 applied for eea2 -----COA with work ---- 5 years residency granted to me

2 daughters has been born since than .they both British citizens and they are 7and 5 now.

2016 separated with my wife .contact still need to be sorted at the family court .

2016 applied for EEA(fm) obviously wife not cooperating ----COA no right to work
6 month later
It say you have been refused residence because you are family memeber of a British citizens ( also Irish under which I applied 5 years ago and obtained 5 years )

And the reste of the décision talk about my options saying you migh wanna apply for flr etc
They also said they haven't considered the application under article 8 oh echr because it wasn't requested or applied for.

Now I done some researchs found out the McCarty jugement .
Clearly there I can see the law has changed that an EEA national can not sponsor a non EEA if the eu is also British since 2012 .
But there arrangements put in place for those applied before 2012 .( my case was 2010 )
Now they holding my passeport and asking me to contact them for arranging immediate deportation if I don't appeal in14 days
Questions:

1- When I applied for eea(fm) in 2016 do you guys think that it has been considered as like new application therefore the new McCarty rule has been applied (British cannot sponsor some onelse even if they hold another EEA nationality ) that's why now I been refused and been granted residency under the new rule 5 years ago) before the amendment?????

2- how much an appeal cost and how long it takes ?
3-can I make a new application eea(pr) retain right after separation . Would they come to the same conclusion which was clearly a massive mistake I should ve been treated under the old rule not the one. After 2012
4- what are the arrangements put in place for those applied before the amendement of the rule , that means my wife or ex should have been treated as Irish not British . Écluse I applied under the old rule .
5- can i also some how inject the article 8 of echr in any new application i might have in parallel , if so how is that work .

Any other suggestion are welcome . As you guys can see I do not have a lot of time
And as you know I could not work I had to stop my job 6 month ago and after te separation
I can't work , I can't apply for benefit , And frankly all I want is the right to work and earn my living expenses I do not care about travel .

Thank you very much

[Obie]

You should not have applied for EEA 2 but permanent Residence.

Why did you tell them your wife is British?

[noajthan]

If you were married and had a RC (or even a FP) issued by a key date in 2012 and your sponsor was a qualified person then yes, you can invoke the McCarthy transitional.

You could well have acquired PR status by now (subject to satisfactory supporting evidence).

I'm sure this has all been discussed before - I recall some question around sponsor status and whether CSI was required:
http://www.immigrationboards.com/eea-ro ... l#p1295910

UKVI/HO appear to have made a gross error here.
Did you help them out by enclosing a cogent cover letter in previous application/s pointing out your use of McCarthy provision?

[Amine-medini]

I thank you for your reply
No I did not , and i expected a lawyer I paid 3000£ , to do this do t you think but he did not ?
I agree that is clearly a big mistake or they only choose to ignore it i.
But now I know that what would i need to do to adress that ?
An appeal is expensive and lengthy ? Can't afford the mo et or the time .
What do I do than ,
I have all the relèvent evidences showing 5 years continuous employement from may 2011 to July 2016 , marriage certificate bills , birth certificate joint bank statement .medical insurance .

Do you think it is wise for me to ask my lawyer for a refund . once he failed to acquire me the result I needed . And put me in risk of deportation?


What is the next step ?

[Amine-medini]

You should not have applied for EEA 2 but permanent Residence.

Why did you tell them your wife is British?

I did not tel them they figure it them selve. They pointed to me that I applied for a certificate of approuvât in 2008 under her maiden name and British nationality .
And they just say that you are married to British citizen not Irish
But please réfère to me original post above which explain in details .
What are those arrangements put in place for people applied before 2012 ?

[Amine-medini]

My immigration lawyer before we part our way , was certain that the appeal is way to go and the only option . He said that I should attend the court argue my case in person .
And he stress do not give up the appeal .

But how long will it takes to get to the stage to argue anything ,and at what cost .?
I need you to know that I am in no position to make any payment he took all what I have plus not right. Work , i end up in a homeless shelter .
The funny thing I have a job ready line up for me , but I can't do it because the home office said no .

[noajthan]

I thank you for your reply
No I did not , and i expected a lawyer I paid 3000£ , to do this do t you think but he did not ?
I agree that is clearly a big mistake or they only choose to ignore it i.
But now I know that what would i need to do to adress that ?
An appeal is expensive and lengthy ? Can't afford the mo et or the time .
What do I do than ,
I have all the relèvent evidences showing 5 years continuous employement from may 2011 to July 2016 , marriage certificate bills , birth certificate joint bank statement .medical insurance .

Do you think it is wise for me to ask my lawyer for a refund . once he failed to acquire me the result I needed . And put me in risk of deportation?

What is the next step ?

Is the evidence of employment yours or your sponsors?
It is EEA sponsor's activity that is vital here.

You appear to have been let down by your representative but not sure you would want to open up a battle with her at same time as with HO.
Just as you are unable to retrieve fees from UK for an unsuccessful application its not likely to work that way with a solicitor either.

If you had a viable sponsor (exercising treaty rights) then an appeal based on invoking McCarthy seems one way forward.
Suggest you need to reach out for help from some local community law centre or a migrant (law) centre if you are in a hard place.

[Obie]

Strange you were given a COA without a right of employment.

Did this affect your ability to work? Did you continue the CSI after residency was issued?

[Amine-medini]

Self suffisent category ,she was mother at home she had 2 babies in this 5 years residency a blood clot she was hospitalise for months between 2012 and 2013 ,
Ii was working and we had a joint account which where my incomes are paid into.

My lawyer said that he is willing to appeal on my behalf , it takes about a year or so to list the hearing ,
The interesting thing he said was that in the meantime I will be able to get permission to work which actually is the main thing here .to be able to work and live like everyone

Do you agree that is feasible ? He actually pretty certain that an appeal is winnable and said in his own word that he feel very strongly about . He email that to me right after I asked for return of my file and refund .
Before anyone make any incinuation about him he is actually very highly recommandef and very respectful lawyer in London. But in my case I did not have good experience .
As he should ve been aware of the change of the law and should ve incorporated in the application .
What do you think about his suggestion concerning his feeling bout an appeal ?

[Amine-medini]

Strange you were given a COA without a right of employment.

Did this affect your ability to work? Did you continue the CSI after residency was issued?

I did not after issu of residency CSI I cancelled it after I started working and paying taxes so I though the only reason they ask for csi because I was not paying in the system but now I am working why would I ? It was gross mistake but my lawyer at the time saw no problem in it

Right before I applied again recenteky for eea(fm) j'ai took another health insurance with my wife .
That answer your question I think as why was EEA fm and not PR because of abscnece of csi continuously .

[Amine-medini]

Strange you were given a COA without a right of employment.

Did this affect your ability to work? Did you continue the CSI after residency was issued?

I well of. Ours I was in stable employement and I had to stop immediately after the. COA says that they could not confirm my right to work .

If an appeal is lodged , how is that work , will I be able to work while waiting for the hearing .my lawyer think so and I wanted to get other opinion on his thoughts

[Obie]

Well you will have to threaten legal action..

You appear to be someone I had advised previously.

However, it appears that the advise given was not taken.

[Amine-medini]

Well you will have to threaten legal action..

You appear to be someone I had advised previously.

However, it appears that the advise given was not taken.

I respectfully disagree but appreciate the advices , I been advised to seek legal representation because of the complexité of the case with i did .and got me no where
Now an appeal has been put in place by my lawyer upon requesting terminating my business with him and eventual refund .
He said he will fill up the appeal but I need to go to te court myself and argue the case , I will eventually need help with preparing for the hearing , but I hear it takes about a year to list the appeal at a tribunal .
My concern : will I be allowed to work while my appeal still pending ???
I would like to get another view to weight up against my lawyer as the latter seems very confident that is the case .
Is that realistic hope ?

[Amine-medini]

It says we only asking the home office to confirm the right that you are enjoying prior to 2012 .

[Obie]

We need to tell Home Office to give you a right to work, or you will challenge this in court.

[Amine-medini]

We need to tell Home Office to give you a right to work, or you will challenge this in court.

Do you mean right to work , pending the appeal against the previous decision made ?
Will that be a separate application or is it granted automatically upon receiving the appeal request ..
Thanks a lot .

[Obie]

They had refused to issue a COA with a right to work when your application was lodged.

They will seek to maintain the status quo unless your fight them.

[noajthan]

My concern : will I be allowed to work while my appeal still pending ???
I would like to get another view to weight up against my lawyer as the latter seems very confident that is the case .
Is that realistic hope ?

With a dispute over your status and sponsor's status as well as the question mark around use of McCarthy and HO's denial of confirmation of PR (let alone any confirmation of a right to work) it's hard to see how a right to work can be reinstated by commencing an appeal.
Surely any rights will now only ensue on total victory ie after the conclusion and only on a favourable determination of the appeal.

[Amine-medini]

They had refused to issue a COA with a right to work when your application was lodged.

They will seek to maintain the status quo unless your fight them.

idiot-phone ther obie
I have right here in front me printed version of the regulation and allés the amendement and schedule 1and 2 and 3.
Basically what was changed the effects on the news application and all the provisional arrangements to those obtained RC before or on July.

I also wanted to say that application for the home office it's nota lottery there are rules and people can see them and read them and understand them Iam not the brightest but it is clear to me that they changed the law in 2012 in relation to dual EEA British nationality and their capacity to sponsor any one in the future .
But have a look at the schedule 3 TRansitional provisions
amendement of the definition of an EEA national .
Where the right of family memeber to be admitted to or reside in the U.K. Pursuant 2006 regulations depends on the fact that a person is an EEA national , that person will notwithstanding the effect on paragraph 1(d) of schedule 1:
Quote p1(d):in the definition of an EEA national after a national of an EEA state insert who is not also a UK national .
That is exactely pinpoint my case.
My wife was Irish British she would not be affected by the schedule 1 which disqualifié her of being an EEA national because she is also aUK , but in my case schedule 3 surely and clearly should ve been applied ,and qualifié her as being EEA national with permanent residence which she obtained with me once I had my RC therefore I should not have been refused .
And strangely they pointed that out in the letters when they refused my application which is gonna be used in the appeal . Why did not they see that ?
Why my lawyer seems to xtremely sure that he will be able to get me right to work because of this gross error .
Can I get an mp involved do you think that would help .
An appeal can take up to a year How anyone can hold on without any money for a year .
Is is a descriimination at the top league .
Obie of. Ours they will stand by their decision if it was up to them I wil be in plane right now never mind my daughters which they know I have 2 birth certificate was included in the application .
seprTe question for anyone who can help .
I always been asking that question in my head and never gotten a clear answer
If an EEA national also a U.K. Would that person be qualified person any way because it gained permanent residency through her UK citizenship . So no need to demonstrate her being a qualified person .
It says in their website in schedule 1 regulation 10 d)
For the reference of the qualified person substitue the qualified person " or " EEA NATIONAL with Permanent RESIDENCE
Am intrepreting that wrong .....!?

[Obie]

Well the ability for him to get a COA with a right to work, depends on him showing prima facia that he is a family member of an Irish Citizens.

The test for a COA, is not a person's ability to provide they are entitled to a Residence Card, that will be a duty for the court upon appeal.

[Amine-medini]

Well the ability for him to get a COA with a right to work, depends on him showing prima facia that he is a family member of an Irish Citizens.

The test for a COA, is not a person's ability to provide they are entitled to a Residence Card, that will be a duty for the court upon appeal.

Hi o is Iam sorry English is my 4th speaking language its harder for me to nderstand somtime the wording and exacte interprétions .
Are you saying the test for COA ,does not depend on the appeal , the appeal is for to determine the residence card .
Or could you put it in much simpler de way . Like I am 12 years old .
And what do you think about my previous long post .

[Obie]

Your understanding of what i said is correct. The test for the issuance of COA is different from the test used to determine if a person qualifies for Residence Card, therefore being refused residence card, does not preclude you qualifying pending the appeal.

It will not be possible for me to give detailed advise and explanation in every case, as i am an employed person, and have family also, therefore if i have to reply in detailed all the time to everyone, i may get in trouble.

[Amine-medini]

Your understanding of what i said is correct. The test for the issuance of COA is different from the test used to determine if a person qualifies for Residence Card, therefore being refused residence card, does not preclude you qualifying pending the appeal.

It will not be possible for me to give detailed advise and explanation in every case, as i am an employed person, and have family also, therefore if i have to reply in detailed all the time to everyone, i may get in trouble.

I completely understand , I would like to thank you for all your replies it was great help and support .
Happy Holiaday to you and your family .

[Amine-medini]

I found this article in the gouvernement website . Can any one explain to me the procedure of an appeal and especially the cost .

Quote :The Government has decided to suspend immediately the fee increases introduced in the Immigration and Asylum Chamber of the First-tier Tribunal on 10 October 2016. This means that from 25th Nov 2016 the correct fees for an appeal are £80 to apply for a decision made on the papers you have provided and £140 to apply for a decision at a hearing that you or a representative can attend. If you have a payment request for £490 or £800 you should not now make a payment but should await a revised request, which will be sent automatically.

What does that mean ?
Has anyone made an appeal recently after refusal letters with right to appeal ?
Did you get any correspondance from the home office upon requesting a hearing ?
What did it say in the lettre

[Amine-medini]

How can an MP get involved. And what can he achieve if anything in terms of right to work whilst the appeal is pending ? Once he sees that obvious mistake been made by the home office which I strongly believe to be my case .
Appreciate any help , maybe some ne who got through that before me