EEA(PR) refused-Eind ignored, retroactively applying Dec 2016 changes

[Richard W]

It is very unlikely that the Upper Tribunal would refer the question to ECJ court when it recognises and applies the Eind judgment. See the recent unreported case EA/07134/2016 which may assist the OP.

8. We do, however, note that in the light of the ECJ's decision in Minister voor Vreemdelingenzaken en Integratie v Eind (C-291/05) [2008] 2 CMLR 1, it was not necessary, in a Surinder Singh claim, for the appellant to establish that the sponsor was, on return to the UK from Cyprus, a "qualified person".

https://tribunalsdecisions.service.gov. ... 07134-2016

I'm not sure that that helps. The HO conceded that the sponsor was a 'qualified person', so there was no point in their seeking leave to appeal. I would presume that the HO has prepared an argument against Eind.

[greatscott]

I would presume that the HO has prepared an argument against Eind.

I think you know something and not telling!

We need to find out what , if we can understand where they are coming from, because I don't understand how you can argue against Eind...its been around, been reaffirmed for years.

Someone must have info, just need to find out who.

And lets say there is something, how do they defend retrospectively stripping away the rights from people who have relied on its lawful existance. And why would they bother 18 months from brexit. As someone said before its not a great amount of people, id say more people are streamng in on dinghys, trucks, and visitors overstaying, than surinder singhers relying on eind.

Something just doesn't clock on this.

[secret.simon]

I would presume that the HO has prepared an argument against Eind.

I think you know something and not telling!

I think you credit members of these forums with much too much knowledge. Like you, we are attempting to piece together developments in the ever-evolving and fluid field of EEA migration/freedom of movement.

I think that Richard W's logic is that the Home Office must have had legal advice and a skeleton case on why Eind can be considered as no longer valid, in case the matter goes to court.

As an example, the UK government seems to rely on the ECJ's O & B judgment to toughen the requirements for the Surinder Singh route. They would presumably have an alternate interpretation of EU law/ECJ judgments in order to reinterpret Eind.

Also see this earlier thread about an FOI request made in this regard earlier.

[Richard W]

As Secret.Simon says, I have no inside knowledge. EUCJ judgements are not binding on itself, so it may be possible to reverse them. The Metock judgement reversed Akrich, but there is no reason that reversals have to make things less restrictive. Cameron's deal probably emboldened them, and consider the frightening new definition of 'marriage of convenience'. Also, I don't find the argument of Eind convincing, and perhaps it isn't just because of my lack of comprehension.

Another matter emboldening the home Office may be the question of the necessity of CSI. The EU Commission has advised that access to the NHS is good enough, but the threatened action against the UK has not materialised.

There is also the feeling that the EUCJ is subject to political influence, and there is increasing government resistance to freedom of movement. Note the speculation that the UK could be kept in the EU by a deal that cut back on free movement. The Danes and the Dutch would probably be happy with cutting back on free movement - the Danish prime minister welcomed the immigration aspects of Cameron's deal.

[greatscott]

ok, but you're both skirting around the issue of:
1. the unilateral and retroactive implementation of 'whatever it is they are so confident about' and applying it to someone who entered the country five years ago (not last month!), and
2. transitional provisions regarding who is and is not covered by a new interpretation of the law some five years later. Why is there no respect in the refusal for this issue.

Can you comment on these two issues?

What I mean is this not about having to return a bottle of ketchup to the store because someone used to call it tomato sauce five years ago. This is as real as it gets, about human drama - families moving across the world, often with no means to reverse any decisions made - each decision a consequence of what the law told them at the time, in real time, about what they were and were not allowed to do. The process of migration involves many repeated, irreversible baby steps: taking a step, living with those consequences, then taking another step, living with those consequences, and so on....so we have taken steps A to Y. As we take step Z, we are told oops, sorry, despite being legal at step A for the last five years, we have now decided to call step A 'Ketchup' and not 'Tomato Sauce'....you, who are at step Z, are void, you no longer exist.

Think about it guys....this (so-called) law called 'Ketchup', was introduced on 25 November 2016. We entered and were accepted as 'Tomato Sauce' in Jan 2012.

Get out of your warm, comfy beds ! - and really think about what this refusal means in terms of 1 an 2 above. The Law at the time was followed, in real time, all the way from A to Z.

[Richard W]

ok, but you're both skirting around the issue of:
1. the unilateral and retroactive implementation of 'whatever it is they are so confident about' and applying it to someone who entered the country five years ago (not last month!), and
2. transitional provisions regarding who is and is not covered by a new interpretation of the law some five years later. Why is there no respect in the refusal for this issue.

Can you comment on these two issues?

Did the Home Office tell you, as opposed to civil servants, that Eind applied?

Of course, you have encountered the argument that your family is disqualified because you know the law too well.

The lack of transitional arrangements from the 2006 to the 2016 regulations in the order is somewhat disturbing. Prompted by this lack, I had a look at the HO guidance for handling applications to renew a DCPR or PRC. It seems that such documents are not treated as evidence of having held PR - PR has to be proved all over again!

[greatscott]

Thanks.

No, EU law told me that Eind applied. It really wasn't hard to understand. I was obviously under the wrong impression that the UK was part of the EU.

I don't know law at all but ignorance is no excuse....most of the time.

Nothing shocks me about the UK anymore. The thing with a PRC or EEA(PR) is that we can become citizens before Brexit. If we try naturalise without this 'manufactured' document, they will just swipe our money.

I think the UK are gearing up to pay for Brexit by charging what they like for 'Settled Status' applications.

[Richard W]

I think the UK are gearing up to pay for Brexit by charging what they like for 'Settled Status' applications.

It's already been agreed that they will be priced in the same way as EEA residence card applications - August - Joint technical note on the comparison of EU-UK positions on citizens' rights, 8th page, 'Fees for documentation'. EEA residence cards are currently processed at a substantial loss.

[greatscott]

fool me once, shame on you- fool me twice, shame on me

We are talking about the British government here! Its agreed, *really*! LOL
Mate...Eind was agreed, it was (still is) part of EU law. How many people have been granted citizenship through Eind so far!
If you have an agreement with a 'club' consisting of some of the most powerful countries in the world, and you twist their law unilaterally to suit your own ends.......then break the agreement, then cheat everyone retrospectively (or at least try to).....then you are morally bankrupt my friend.

But hang on, they've agreed that a piddly Settled Status card will be run at a loss, at the same price as Residence Cards..... hahaha.

These guys are capable of anything.

[greatscott]

Sorry, I didn't get my question fully answered, so will try again.
We were refused EEA(PR) (S/S) based solely on Eind and BC not being Qualified Person during the entire 5 years. We have appealed.

Spouse's RC has expired but our Appeal against refusal to apply Eind case law has been submitted.

Can spouse keep working while waiting for the Appeal hearing? (could take up to a year?)

[Richard W]

Spouse's RC has expired but our Appeal against refusal to apply Eind case law has been submitted.

Can spouse keep working while waiting for the Appeal hearing? (could take up to a year?)

Are you currently as a 'qualified person'? If you are, then the answer is 'yes'.

On what basis is her employer currently allowing her to work?

[greatscott]

How is that relevant? Innocent until proven guilty. If we weren't appealing then fine. But we are.

We are appealing a refusal which has not been proven by a court of law to be correct. Surely the outcome of the tribunal will prove who is correct?

They have not proved that not being a Qualified Person continuously for 5 years, strips us of our entry rights. Where's the proof. There is no proof anywhere to be found that Eind is no longer good law.....None.

Notwithstanding, I currently freelance, and have worked on a number of projects for an overseas company. I have a signed statement from that company confirming ongoing work since June 2016. There are no salary slips because the work is all risk work and dependant on success. One project was unsuccessful, another shortlisted but unsuccessful. Another is subject to a JV agreement being signed soon. The projects themselves are in overseas locations...this is what a brexit government wants right?- trade with other countries.

Spouse works on the basis of RC (now expired), who has according to EU law automatically gained Permanent Residence after 5 years.

The HO refusal is illegal and the Appeal will prove it. Innocent until proven guilty. They have not proven guilt...all they have done is stated their reason to refuse PRC or EEA(PR). Just because they have stated a reason for refusal does not mean they are correct- that is why an Appeal process is in place, surely.

[greatscott]

Editing function disappears quickly! Let me rephrase my answer as its a bit repetitive (sorry, very frustrated by this country at the moment)!

1. Yes, I think I am currently what is known as a 'Qualified Person'. I freelance, having worked on a number of projects for an overseas company. I have a signed statement from that company confirming ongoing work since June 2016. There are no salary slips because the work is all spec/risk. One project was unsuccessful, another shortlisted but unsuccessful. Another is subject to a JV agreement being signed soon. The projects themselves are in overseas locations.
2.Spouse works on the basis of RC, what else is there? (now expired)

[Richard W]

Spouse's RC has expired but our Appeal against refusal to apply Eind case law has been submitted.

Can spouse keep working while waiting for the Appeal hearing? (could take up to a year?)

Are you currently as a 'qualified person'? If you are, then the answer is 'yes'.

On what basis is her employer currently allowing her to work?

Editing function disappears quickly! Let me rephrase my answer as its a bit repetitive (sorry, very frustrated by this country at the moment)!

1. Yes, I think I am currently what is known as a 'Qualified Person'. I freelance, having worked on a number of projects for an overseas company. I have a signed statement from that company confirming ongoing work since June 2016. There are no salary slips because the work is all spec/risk. One project was unsuccessful, another shortlisted but unsuccessful. Another is subject to a JV agreement being signed soon. The projects themselves are in overseas locations.

What the law allows and what employers dare allow are often two different things.

If you are a qualified person, then your wife is allowed to work. Not having permanent residence would not change this fact. Unfortunately, it seems to me that it might not be easy to prove that your work was 'genuine and effective' rather than 'marginal or ancillary'.

I could not find the basis of your wife having a right of in-country appeal. I therefore could not find any evidence as to whether she would have a right to work if you were not a qualified person. I presume this is what you're looking for.

2.Spouse works on the basis of RC, what else is there? (now expired)

My daughter has a part-time job where she is at the most rigorous allowed to work on the basis that she is a schoolgirl with a local accent and a national insurance number. I'm not sure about the national insurance number being a requirement. There may have been a verbal check that she was British. (My daughter does have a British passport, but she hasn't been asked to show it.)

We know from this forum of someone being allowed to work for a local authority for years on the basis of a family permit.

I had naively been assuming that a certificate of application would have been issued to your wife, but it seems not. I had heard of positive verification notices being repeated while an application for a residence card was under consideration or appeal, but it seems that this avenue is not open. I've just had a look at the government publications on right to work checks. It seems that once your wife's residence card had expired, the only possible defence for her employer if the Home Office issues a penalty notice for employing an illegal worker is for her employer to establish either that your wife has permanent residence or that you were a qualified person at the time of the alleged illegal working.

Now, it could be that your wife's employer believes that she has acquired permanent residence. That may cover him against criminal prosecution, but the mere belief, however reasonable, won't protect him from a civil penalty.

[greatscott]

Thanks Richard, its a muddle. Non the wiser, but thank you for replying.