Please help EEA2 EFM refused appealed success now ILR ?

[Erininuk]

I have been in uk for nearly 11 years now.

Jan 2007 - Oct 2011 Student
OCt 2011 - Nov 2013 PSW
Lodged EEA2 application (unmarried partner) before the expire of psw on NOV 2013
Refused on late Dec 2013 based on insufficient evidence to proof durable relationship eventhough me and my partner had been together for 3 years.
Appealed on mid Jan 2014
Hearing(Aug 2014) date confirmed on Feb 2014
Home office withdraw the hearing and revert their decision on Aug 2014
EEA2 issued on Sep 2014

Now thinking of apply for ILR, does this period of refusal and appeal count as GAP or break from 10 years?
I lodged all my application before my visa expire date, but one laywer says that the period between Nov2013 to Sep 2014 is not covered under section 3C of the uk immigrition law, and theres is no law in the european regualtion that covers or even mention my situation deem the period of waiting in the uk as lawful residence, is this correct ?
Any advice ?

[CR001]

The lawyer is, for once, correct.

You were a person with no legal status from the date your PSW expired to the date your EEA2 was issued.

As an unmarried partner, you are an extended family member, which means you had no automatic rights. Would have been different had you been married when your visa expired, as you rights would have been automatic.

[Erininuk]

Thank you very much for reply.

I understand, but the refusal of my application itself I think its a mistake from home office part, the fact that they did not even bother attend the court of hearing and revised their decision indicate the initial refusal was not justified, had they approved my application initialy there shouldnt be such a long gap for me, so why am I penalized for their mistake.

Also is there any European law I can quote to cover my period of waiting as I was exercisie my right of family life.

[CR001]

Also is there any European law I can quote to cover my period of waiting as I was exercisie my right of family life.

No there is not. You have no 'automatic rights under the EU regs' as a durable partner unfortunately.

What evidence did you submit with your initial EEA2 application to prove durable relationship 'akin to marriage' for a minimum of 24 months?

[Erininuk]

Really ? Ouch !

Hm, well the thing is by the time of application, we have been living for 2and half year, but the first year and half only one of us is in the tenadant aggrement, and we didnt have joint bank account, so we send leese agreement and some other bills show same address and letter from our family and friends to varify our relationship.
So after losged appeal, we opened a joint account, then thats that, case closed.
My current visa doesnt expire until late 2019, to be honest i think i could apply EEA4 last year, but with the brexit and previous refusal, we are not sure what to do, I seriously dont want to go through another refuse and appeal again.
Is there anything I can do? Oh and we dont want to marry for the sake of visa, so thats not an option really..
The laywer I visited said i can apply ILR for the 10years but there are possiblity i may get refused( all dependant on the caseworker if they are familiar with this area) but if i do becuase there is no law covered this grey area, and the situation is ilogical ans unreaonable we can argue and we can appeal and go for juditcal review etc, but its going to be lenghty time of waiting, and the fee would be 5grand plus.
Is it worth trying ?

[CR001]

It doesn't change the fact that you have a period of no legal status. To qualify for ILR long residence, you must have been legal for the whole 10 years and you must include substantial evidence of the EU partner being a qualified person for the whole period you held a residence card.

If your ILR is refused, you also lose your application fee, which is £2,287 for a postal application and an additional £590 for in person at present.

You don't qualify for PR under the EU rules until you have 5 years residence on your EEA2 permit, which will be September 2019.

Don't bank on appeal rights if you do apply and it is refused. Not everyone gets appeal rights and JR is incredibly expensive as it does not fall under the immigration rules/route but the judiciary court system.

and the situation is ilogical ans unreaonable we can argue

Not sure how you would argue that when you failed to provide substantial evidence as a durable partner and are still an unmarried partner with a valid EEA2.

[Erininuk]

Its not a problem to prove that, he's being working the whole time as public servant and I am self-sufficient.
What I had heard is that the time of EEA4 5 years is starting from the the beginning of living together for 5 years. We being together for nearly 7years now. So I was advised no need to wait till the end of my visa expire. But then everything is very confusing with the constant change of law and regulation against immigrant

[CR001]

What I had heard is that the time of EEA4 5 years is starting from the the beginning of living together for 5 years.

You have 'heard' wrong. That would only be relevant IF you were married and the residence would start from date of marriage even if you did not have a residence card. Your clock for PR under the EU rules starts from the date your residence card was issued.

You should not confuse the automatic rights a spouse of an EU citizen has with the lack of automatic rights that you have as a durable partner. You are considered an Extended Family Member. A spouse of an EU citizen is a Direct Family Member.

[Erininuk]

I just checked the law yeah you are right, the 5 year starts at the point whe i recive my RC.

But what really confuse me is that, what was those 8 month of waiting, overstaying ? Surely not? They have not teliing me so, when The initial refusal happened, I was giving right to appeal so I appealed as their desision was unlawful,simply a mistake, aslo I didnt lodge another application to avoid abuse the sytem because I dont want to lodge an application after the expring of my previous visa, that looks dosge, so I appealed to correct a mistake that had unfortunately happened on my immigration history (ie the refusal). Also they revised their decision straight away without the court hearing, so I am quite confusing what this 8month means apart from our relationship been tested. Was I over staying or reside illegally ? But there is no letter of such label or law inforcement letter or detension or report to home office ? I was just, waiting.

[CR001]

Yes you were an overstayer.

There would not have been a letter from HO because you lodged an appeal.

Do a subject access request then to see what all is recorded about you with HO.

[Erininuk]

Yeah i m think of doing that, thanks for your advice, its very kind of you.
I suppose i cant do the fast track one, need to do the standard one and wait for 40days ?

but you see i appealed because I didnt want to overstay, back then I automatically assume that until a desision was made, i was not overstaying.
Now after conversation with you and some research, yes EEA is not covered after their update of the 1971 3c, but not sure the law was like that during my time of refusal and appeal ? I think they updated after my appeal, because back then I did got legal advise on my refusal, lawyers suggested appeal rather than new application, surely they would have informed me about the situation if the law back then as the 3C was not covering EEA already ?

[CR001]

Section 3C is ONLY applicable for applications under the UK Immigration rules, which EEA2 applications do not come under as they are under the EU regulations which are completely separate.