UK residence card refused!

[rydhwan]

Hi ALL,

My name is Rydhwan and I exercised treaty rights in Dublin, Ireland for almost 2 years.
I went there in June 2014. I got my Mrs over there in Oct 2014 and she got her GNIB card in July 15. We also have a daughter born in Dublin in June 15.
We returned last year in April. I applied for her residence card application in November.
Now it's been refused and there are some interesting refusal points.

1) You have provided no/insufficient evidence of your integration in the Republic of Ireland.
2) It is suspected that your first lawful residence with your sponsor was in order to circumvent immigration law.

We have submitted everything, which includes tenancy agreement, bank statements, bills, PRTB, my wife hospital records, daughter's birth certificate, salary slip, tax certificate, Company documents when I went self employed. We had a baby in June so after that my Mrs was very busy until we return here, she was pregnant with 2nd child and our 2nd one was born last year in November

Anyway in the refusal they pointed out my statement regarding BBC article on treaty rights, they further pointed out a course in April 14 which I attended for 2 days regarding Static security and said that I could have performed a similar role here in UK.
Their 2nd refusal explanation was that I mention that we were struggling with finances at the end of our stay and did not have any proper work and I wanted to come back to UK because most of my family & friends are here, according to them this further raises the question as to why I would choose to leave UK to go to Ireland in the first instance.
Lastly they said that Mrs have been granted permission until 2020 and we have left Ireland within 9 months of getting the residence card, again according to them if we genuinely wanted to stay in Ireland, it would have expected of me to find more employment there, rather than returning to UK.

I am planning to appeal as they have not returned my wife's passport and suggesting that she can be deported. I wanted to argue over these points with reference to legislation.

Can someone direct me on some good points? I transferred my center of life to Ireland (I don't own a property or business in UK) hence my lengthy stay there so how come they do this to us especially with 2 infants, one is 2 years in June and the other is 9 months old.
Is there no justice?

Thank you

[Tamandua]

The HO has their own agenda. They want to control immigration. Hence, the refusal.

Also, the HO is of the opinion that everybody, on the basis of probability, is trying to avoid UK immigration law by moving to another EU state in order to take the SS route later. That's why they ask for evidence of integration in the host country. It seems like your failed to meet that criteria. Simply stating that you lived in Ireland for 2 years means nothing to the HO. Perhaps you should have submitted old bank statements, tenancy agreements, bills, payslips from 2 years ago.

Did you join any club in Ireland? Did you tell them what motivated you to move to Ireland?
You shouldn't have mentioned the BBC article. That worked against you.

Again, the underlying motive behind refusals is to control immigration. I suspect they are also concerned about UK citizens returning to the UK.
My husband (UK citizen) moved to Spain to work in Gibraltar and I remained in the UK to study. In my refusal letter, the HO pointed out that my husband was physically present in the UK but not settled, even though he provided evidence that his company had transferred him back to the UK. The HO also stated that we could continue our family life in Spain under EEA regulations.

[Obie]

The simple fact of the matter is that the Home Office is wrong, their basis of refusal is unsustainable, it is inconsistent with EU case laws which is binding on them.

Important to note that EU law is very consistent and hardly change, where as UK interpretation of EU law is ever evolving and changing in a manner which is clearly unlawful.

[mkhan2525]

HO are now refusing all applications if there is previous immigration history or where the applicant could have applied under UK immigration rules regardless of how long they resided in anoher member state.

My wife received a refusal 3 months ago on the basis of circumvention because of a refusal under a previous application. They also refused on centre of life and for not being a qualified person even though I presented them the evidence to show the requirements were met. They want us to apply under the 5 year UK immigration route.

I have appealed the decision and am looking forward to my day in court.

[Wanderer]

SS is used to circumvent UK immigration rules, there's no doubt about that. I don't blame people for using it if they can, but you have to admit it's use now is not what it was designed for.

[Tamandua]

SS is used to circumvent UK immigration rules, there's no doubt about that. I don't blame people for using it if they can, but you have to admit it's use now is not what it was designed for.

Not necessarily. My husband wanted to further his career in Gibraltar and living in Spain was more convenient. I believe some people genuinely move to another EU state because of their jobs, studies and so on. It all depends on what motivated them to move to the other EU country. If they state they worked as a waiter while living in the host country without providing any reason for that (i.e. experience life in France?), chances are their application will be refused. The caseworkers will always take the context into consideration.

However, the economical treaty right was exercised. That's why the refusal seems unlawful.

[Obie]

The UK must adhere to the law and must be seen to be doing so.

There is a law of the land. We have the European Communities Act 1972. It binds the Home Office and the courts. The UKVI must adhere to it.

Their implementation of Surinder Singh is so fundamentally flawed, that no reasonable court will allow it to stand.

[alphagear]

Had Appeal hearing over 2 weeks ago under the new regulations yet still waiting for decision. God knows what is going on.

According to judge and barrister we are the first to be looked at under the new regulations.

HOPO did not even know about Akrich case law. Judge did though.

[gillacious_505]

Had Appeal hearing over 2 weeks ago under the new regulations yet still waiting for decision. God knows what is going on.

According to judge and barrister we are the first to be looked at under the new regulations.

HOPO did not even know about Akrich case law. Judge did though.

How did you go about with the appealing process. Did you try to justify the evidence you supplied for new regulations or did you counter that the new regulations are unlawful?

[alphagear]

Had Appeal hearing over 2 weeks ago under the new regulations yet still waiting for decision. God knows what is going on.

According to judge and barrister we are the first to be looked at under the new regulations.

HOPO did not even know about Akrich case law. Judge did though.

How did you go about with the appealing process. Did you try to justify the evidence you supplied for new regulations or did you counter that the new regulations are unlawful?

Yes, barrister quoted akrich case law and mentioned pure EU law is supreme over Uk interpretation of EU law.

Will let you know the decision when i get it. Its been over 2 weeks. Still no response.

Judge agreed with my barrister tbh.

Home office guy said he never heard of Akrich case law. Unbelievable.

[gillacious_505]

Had Appeal hearing over 2 weeks ago under the new regulations yet still waiting for decision. God knows what is going on.

According to judge and barrister we are the first to be looked at under the new regulations.

HOPO did not even know about Akrich case law. Judge did though.

How did you go about with the appealing process. Did you try to justify the evidence you supplied for new regulations or did you counter that the new regulations are unlawful?

Yes, barrister quoted akrich case law and mentioned pure EU law is supreme over Uk interpretation of EU law.

Will let you know the decision when i get it. Its been over 2 weeks. Still no response.

Judge agreed with my barrister tbh.

Home office guy said he never heard of Akrich case law. Unbelievable.

If HO doesn't know about this law then, it is a good thing and will go in your favour. Please share your info on this as soon as you hear anything.

[alphagear]

Will do definitely.

So stressed out atm cause we also have a british child.

[rydhwan]

Hi Guys,

Further to my Mrs UK residence card refusal, we have been served a removal notice for my Mrs.
We have contacted the MP and I have already written to the Home office.
My Mrs has been asked to report to a Reporting centre after 4 weeks but they are still insisting that she can be removed without further notice anytime.
The MP got a response yesterday from the Home office but it wasn't really very helpful at all.
Basically they are saying that because the appeal is under EEA regulations and is non-suspensive, therefore they are not required to wait for the outcome of the appeal before taking steps to remove her and that the notice is served correctly and this will not be withdrawn.

We have 2 children both British, with first child 2.5 years of age and the youngest one 1 year old both.
I have asked many solicitors but all of them said that she cannot be removed however I want this notice to be suspended where I am not getting any help.
I do not want to leave it to Home office whim and desire to make a ridiculous decision.
I have not been given any reply for my letter to suspend this notice yet.
Can I do anything? Shall I make another application under Parent of British Child or Human rights route just to make sure? Is there anyway to ask Home office to suspend this notice, maybe under article 8?
The worst thing is that I am currently skint due to a recent relocation so have to do this myself instead of a barrister.
Can anyone point me in the right direction.

Cheers.
Rydhwan

[mkhan2525]

Did you not apply for a renewed COA whilst you are waiting for the appeal hearing?

[rydhwan]

Hi,
We have sent HO a bundle as proposed by Tribunal. The appeal is for 1st of December.
How do you apply a renwed COA? As my understanding goes it is a doc with your Case number and mostly used for right of work.
Please do correct me and elaborate further on this?

Cheers.
Rydhwan

[alphagear]

When did you receive the removal notice?

Also I believe there should be a "statement of addition grounds" letter with it.

You can make a human rights claim with it I believe.

[rydhwan]

Hi,

The removal notice was back in September.
I had contacted the MP urgently but that reply just came 2 days before.
We have already attended reporting centre once. what is more shocking for me is their insistence that the appeal is non suspensive and she can be removed.
There was no statement of additional grounds however they did ask us
"if you have legitimate reason for staying in the UK based on Human rights or any reasons why you should not be expected to appeal only after you have left the UK, you must inform us".

I have sent them a letter explaining our reasons plus human rights angle but i did not receive any reply yet for that.
Can i ask a solicitor to do injuction appeal against removal?

Regards
Rydhwan

[rydhwan]

Anyone here who could give me some guidance?

[Obie]

The statement of additional grounds is what you have stated.

There is nothing to make an injunction against. There is no formal removal decision yet. A former removal decision will merit a right of appeal unless it is certified as totally unfounded.

Given the circumstances, there are no reasons why your wife's human right claim will be certified as unfounded.

[rydhwan]

Thanks Obie,

Is the IS96 and RED.0001 not a formal decision?
Both notices contain information that she can be removed now without any further notices.
I have also asked 2-3 solicitors and I have been told that is the case.

Shall I still push them to answer by writing another letter, they haven't made any attempts to reply for my last letter which i wrote after serving this notice? Probably attach the letters from former neighbors to justify Mrs integration. The only reply I got when I complained against the treatment by Home office but that still asked us to apply under UK immigration laws.

Was I wrong of thinking about injunction because the RED notice is served?

Rydhwan

[rydhwan]

Hi Obie,

I am waiting for your reply regarding my previous comments. I have an appointment with a solocitor tomorrow so it would be great if i get an idea whether these notices are formal or not?

Wr just got a letter that her appeal has now been re scheduled for Jan rather than December.
Any other comments are also welcome as i am writing another letter to Home office.

Thanks
Regards
Rydhwan

[rydhwan]

Hi All,

Another update regarding our case. I met 2 solicitors (separately) today regarding the notices.

Both said that I shouldn't be worry about this too much as Mrs have two children (Both British) and normally they don't remove you in majority of cases where children are involved.

However they said not to prolong the appeal process and if the appeal is rejected then I should try to look either at Spouse visa for my Mrs (£18,600) or parent of British child route.

They said it is becoming increasingly hard to challenge cases under EU law since Brexit. They said we could do an injunction request along with Judicial review but HO will be very swift if it goes against your Mrs case.

Both said that I could apply for an application under UK rules just to be on the safe side.

What do you guys think? Any thoughts?

[mkhan2525]

I would be cautious with what an mmigration solicitor says as not many understand EU law or can't be bothered with it and will advise you to make an application under UK rules instead.

On a side note I was just looking at the new Home Office guidance and by the language used, it appears they will try to overturn Akrich in court by stating that O and B Netherlands does allow refusals based on abuse where one has artificially creating conditions to benefit from EU law.

[rydhwan]

I would be cautious with what an mmigration solicitor says as not many understand EU law or can't be bothered with it and will advise you to make an application under UK rules instead.

On a side note I was just looking at the new Home Office guidance and by the language used, it appears they will try to overturn Akrich in court by stating that O and B Netherlands does allow refusals based on abuse where one has artificially creating conditions to benefit from EU law.

Hi mkhan2525,

So what do you suggest? Regardless of what the solicitors are saying, if HO really tries to remove her as suggested in their notices, we will be in deep trouble both mentally and financially.
On another note I was reading Akrich and have stated it in our statement of appeal? I will check what the new guidance have on this.

[Obie]

My take on this is as follow:

1. You are able to challenge the notice by means of a Judicial review, on the basis that your wife is not subject to the 1971 act, as she has an enforceable community law right.

2. The cannot give her a removal notice without right of appeal, which she is most likely to win on Article 8 grounds, due to the strength of the convention right claim.

I do not agree that an application has to be made, or she faces a risk of detention or removal. that is not correct in my view.