Refused - E-LTRP.2.1 to 2.2

[Mrs McC]

Help! Just been refused . . .

You do not meet the eligibility immigration status requirement paragraphs E-LTRP.2.1 to 2.2. because it is noted that your previous indefinite leave to remain as a spouse when you left the UK for more than two years. You have therefore been without valid leave for 498 days and paragraph 39E does not apply. You therefore fail to fulfil E-LTRP.2.2. of Appendix FM of the Immigration Rules.

My husband is Canadian, I am British, we have been married for 17 years, lived in the UK 2001-2209. We appreciate he lost indefinite leave to remain status when we returned to Canada 2009-2012. We then moved to Spain in 2012 and he now holds a 5 year residency card as a non-EEA family member (expires 17 April 2018). Due to my parents deteriorating health problems I returned to the UK from Spain in 2013 and he followed in September 2016.

Thought that under the EU freedom of movement law he would still have correct immigration status in the UK as this card apparently gives him the right to work in the UK?

Should I have applied for a Surinder Singh rather than leave to remain? - plan to appeal but oral or paper?? any advice would be greatly appreciated!

Really cocked this up - grateful for any help!

[CR001]

We then moved to Spain in 2012 and he now holds a 5 year residency card as a non-EEA family member (expires 17 April 2018)

Is this a residency card from Spain??

Due to my parents deteriorating health problems I returned to the UK from Spain in 2013 and he followed in September 2016.

Did he remain in Spain when you returned to the UK?
Did he make any application to HO in September 2016 when he came back to the UK??

What application did you make that has now been refused??

[Mrs McC]

Hi CR001

It is an
Extranjeros Espana - Tarjeta de Familiar Ciudadano de la Union.

He remained in Spain until 2016.

No! (foolishly) thought the residency card was sufficient until it expired in April 2018.

We applied for Leave to Remain.

Thank you very much for the reply - honestly don't know what to do for the best!

[CR001]

Doesn't apply to his UK residence as far as I am aware. Residence cards are not transferable across member states as I understand it.

For Surinder Singh to be successful, you should have both returned to the UK at the same time. Him staying in Spain for 3 years after you left likely disqualifies the SS route for you.

He doesn't appear to have had legal status in the UK since he arrived, as HO has pointed out.

What was stamped in his passport at immigration when he arrived back in 2016? Was he stamped in as a visitor??

[Mrs McC]

Hi CR001

OK, this is where it gets interesting. You really couldn't make this up. On the way back, at Calais, he had all his ID, and I mean ALL his ID, all his previous passports (with the original ILR vignette), the Spanish residency card, driving licence, even his birth certificate stolen (we have the police report). Thankfully, down in the deepest pocket of his luggage he found an old Inland Revenue picture ID card so UKBA gave him a stamp to enter, on this stamp it said that UKBA had contacted the HO who had confirmed he had ILR in the UK. They told him to report the stolen documents when he got home, which we did. I also tried to tell the HO but they kept saying, quite rightly, that they only deal with UK biometric cards.They also confirmed he had ILR and told me to apply to transfer his conditions? But when I looked into that I needed to prove he had been living in the UK for the last 5 years which I couldn't do which was when I realised he had lost his right to ILR. We had to start getting his documents back, starting with the birth certificate from Canada and then the passport - time has kind of slipped by!

If his Spanish document is acceptable as right to work in the UK, shouldn't that imply he has some sort of status to be here?

Oh dear, I can feel this isn't going well . . . I agree we are in trouble with the UK immigration rules - do you know if there is any thing in the EU Freedom of Movement law that might help us - I better start checking!

Trying to think of the best way to put this right and to minimise the impact on our lives. Thank you for any advice.

[CR001]

Moderator Obie would probably be a good person to advise. Hopefully he sees your post and can comment too.

[Mrs McC]

Thank you - really appreciate any help