EEA4 refusal-CAN I APPEAL?

[SeaJohn]

Hi there.

I have just got a refusal for EEA4.

The story is as follows. I'm non-EU national, my wife is EU national. My wife has been a student since 2005 and received a studentship for 3 years till 2008. In 2008 we had a son. She remained a part-time student till present. I have been working permanently since 2007 and we lived on my wages.

The reason for refusal letter states:

You have applied for a Permanent Residence on the basis that your EEA national sponsor has been exercising your Treaty rights as a student since October 2005. ... She has not however submitted any evidence which shows how she financially supported herself from October 2008 to date.Therefore, it has been decided to refuse to issue the conformation you seek with reference to Regulation 15(1)(b) of the Immigration (EEA) Regulations 2006.

Do we have grounds to appeal? Any other suggestions?
Can I continue to work if we appeal?

Thanks

[Lucapooka]

If she was studying or self-sufficient being reliant on your wages, there would be a requirement for both of you to have held comprehensive sickness insurance during that period.

[SeaJohn]

Thanks for the answer.
It is stated on my wife's reasons for refusal (EEA3, we have made a joint application) that
As you were issued with a Registration Certificate previously without having to obtained compehencive sickness insurance cover you are not required to have cover for the past 5 years. Therefore you do not have to satisfy Regulation 4(1)(d)(ii).
If it is relevant to her it should be relevant to me. Do I understand it correctly?

[Lucapooka]

Yes, that is correct (see annex B). So I think all that remains is that she provides evidence of her self-sufficiency based on your wages.

[SeaJohn]

We have included my Payslips and P60 forms since 2007 till present with our applications and they have ignored it. What other evidence can we provide? Or should we have stated somewhere that she was self-sufficient and lived off my wages?

What should we do now? Appeal or just try to contact Home Office and turn their attention to the fact that we have provided them with relevant documents? Do we need a lawyer or solicitor?

[Lucapooka]

Well you can appeal or re-apply (it's free). The latter might be quicker if you can address the (not immediately obvious) issues for the previous refusal.

[Jambo]

Please note that you should still make it clear that she is still exercising treaty rights as a student. Just that the source of funding has changed as the exemption of CSI (health insurance) is only applicable if she is considered student for the whole period.

[SeaJohn]

Thank you Locapooka and Jambo,

Would it be possible for you to explain the re-application process in more detail or tell us where to get information? Will we have to fill in same forms and send all the documents again? Are they going to review the whole case or just the funding bit in this case? If we get a refusal again after the re-application can we still appeal?

How can we make it clearer that she was a student for 5 years? We did provide them with a paper from the University. Or should we jast stress it in cover letter?

[EUsmileWEallsmile]

Thank you Locapooka and Jambo,

Would it be possible for you to explain the re-application process in more detail or tell us where to get information? Will we have to fill in same forms and send all the documents again? Are they going to review the whole case or just the funding bit in this case? If we get a refusal again after the re-application can we still appeal?

How can we make it clearer that she was a student for 5 years? We did provide them with a paper from the University. Or should we jast stress it in cover letter?

Concentrate on your wife's EE3. If she gets that then your application would follow on. If hers fails, so will yours.

You would re-apply with the same forms as previously. You hit the nail on the head with regards to the covering letter, it will be key to your application being considered fully. The simplest way for your wife's application to succeed is by her status as a student.

[Jambo]

Under EEA regulations, the HO just confirms your status. In cases of married couples, your rights are obtained automatically if you meet the rules. The HO didn’t reject your rights. The just HO refused to confirm your status based on the evidence you provided. It doesn’t mean you are not allowed to work.

What you need to do is apply again – filling in the forms again, attached the same evidence + cover letter + new evidence.
In the cover letter, mention the refusal and explain that you are now providing the required evidence. EEA regulations allow student to make a declaration regarding their funding so what I suggest is for your wife to sign a declaration stating that she had significant funds to maintain herself and to cover your both living cost (you can state monthly figures if you wish). You don’t need to provide proof for the income as long as the statement is clear and detailed and cover all the periods.

[SeaJohn]

Thank you Jambo.

The problem is that we already provided all my payslips and P60s. I permanently worked in UK since April 2007. It looks like they completely ignored that evidence of funds. I don't know what additional evidence we can provide. Maybe savings accounts.

Basically they require evidence that my wife (EEA national) financially supported herself since October 2008. Can my salary be this evidence or not?

[Jambo]

Basically they require evidence that my wife (EEA national) financially supported herself since October 2008. Can my salary be this evidence or not?

Yes it can. The HO just wants your wife to state her funding since October 2008. That's all I believe. They might have seen your payslips but did not do the link that this is your fundings because you did not state so.
The EEA3 forms states

For time spent as a student: Evidence of a school, college or university letter con- firming enrolment on a course of study, evidence of comprehensive sickness insurance (see section below on comprehensive sickness insurance) and evidence of funds avail- able to you such as a bank statement, a document confirming the receipt of a grant or scholarship, or a declaration of sufficient funds.

Just make sure you provide the required evidence to cover all the period and you should be fine. For me it all seems to be just too much bureaucratic but the HO can be like that sometimes.

[SeaJohn]

Thank you for your answer Jambo.

In case we re-apply, the problem is the Section about travel in EEA3 and EEA4. We had so much trouble filling those in last time and sadly forgot to copy that data. We are now worried theat we will forget to mention something or provide different dates in the new form. Could we just refer them to the form we filled in first time or should we fill everything to the best we can remember and mention in the coverletter that mismatches are possible?

Another question is my work. Did I understand it correctly that I can continue employment in case we re-apply even though my EEA2 expired.

[Jambo]

Under EEA regulations, an application can't be refused because the form was not completed so I believe you should be ok if you just refer to your previous application for the travel section. The HO should keep a copy of the previous application. Just make it clear in the relevant section in the form and in the cover letter.

Rights under EEA regulations are obtained automatically for married couples. As long as your wife is exercising treaty rights, you are legal in the UK and can work. The HO just confirms those rights when issuing a RC. It doesn't matter if your RC expire, you appeal, reapply or if you never applied at all (having RC is optional), your status depends on your partner activities and not on a document given by the HO (although you might find that employers would like to see such a document).

[SeaJohn]

Thank you Jambo.

I've just read our "Reasons for refusal letters" again. They wrote:
"in suport of your aplication you have submitted your passport, ...., bank, statements, tenancy agreements." But they haven't mentioned my payslips or P60s anywhere. It looks like they missed part of my documents, although they returned everything.

Do I need to fill in EEa4 and EEA3 forms again? Or just send them cover letter and documents?

The problem is that they retained my passport and passed "responsibility for my case to local immigration team". I'm not sure if I can get my passport back.

[Jambo]

I think it would be better to fill in the forms again but explain the case in a cover letter.

The HO should not hold your passport and it should have returned to you. Is there anything "special" with your passport that could lead to them holding it?

I would call them first thing tomorrow and demand the passport back.

[SeaJohn]

There is nothing "special" with my passport. My 5 years EEA family permit has expired in January 2012 but I applied for permanent residence back in November 2011.

[Obie]

The HO has a practice of retaining passport, in cases where the person has no leave to remain, in order to make removal less complicated.

In regards to the Self- Sufficiency, i believe you are required to show that these funds were accessible to your wife. Simply showing your bank statement does not discharge this proof. If the statement were in both of your names, and there is proof she had access to it, then it will be easier.

[batakooji]

Hello,
Need your opinion Obie and anyone else if you can help Plz,
I am on 5 year Non-EEA family member residency. My spouse is a holder of BC and another EU passports but we choose the route of EEA when we joined. My question is, throughout the 5 years my spouse had been employed (which is fine) and student ( which we did not know that we should have a health insurance for it) the studying period was over 1.5 yr P/T with no employment. Now I applied for naturalization having I spent 5 years in the UK, Would the fact that my spouse was student without insurance give them the right to decline the application. any suggestions. Thanks for your help

[Directive/2004/38/EC]

There is nothing "special" with my passport. My 5 years EEA family permit has expired in January 2012 but I applied for permanent residence back in November 2011.

Has your EU wife been threatened with deportation from the country? Have they retained her passport?

Is there any suggestion in anything you have received from UKBA that they do not believe your relationship is genuine?

[SeaJohn]

Thank you Directive/2004/38/EC

HO returned passports of my wife and son. They do not have to leave UK. Home Office retained only my passport and passed it local Immigration team. My refusal was based on the following: "The letters from ..... university confirms that your EEA sponsor has been studying there since 1 October 2005 to date and that between October 2005 to September 2008 she received approximately ....... per annum in studentship to support her financially during the study. She has not however submitted any evidence which shows how she financially supported herself from October 2008 to date. You have failed to provide evidence that your EEA national sponsor is a qualified person. Therefore, it has been decided to refuse to issue the confirmation you seek with reference to regulation 15 (1) (b) of the Immigration (EEA) Regulations 2006."

Then there is a list of documents they consider in application. There was no mentioning about my payslips and P60s. I sent 95% of my payslips since April 2007 and all P60s. It looks like they just ignored this evidence. Since 2006 my wife and I have joint bank account and both of us had access to money.

So I don't understand why they refused permanent residence for my wife, son and me. She (EEA national) exercised Treaty rights during more than 5 years period. We did not have access to public funds.

The main question for me is the next step: Appeal or further application.
In case of further application do I need to fill inall forms again or just send letter explaining that they missed main piece of evidence in original application and forward this evidence again.

[Directive/2004/38/EC]

I would appeal and I would reapply.

I would also suggest you talk with a good lawyer who knows European free movement aspects of UK immigration law. Something is odd here.

I do not understand why they are thinking of booting you out of the country. I do not see how they can do that so long as you are legitimately married and they have not booted your wife out. The basic ground rule is that you can be with her wherever she is...

[SeaJohn]

Thank you

Do you think I can apeal and reaply at the same time?

Lawyers are quiet expensive and I don't understand why I should pay if I never did anything wrong, provided all documents.

I'm sending the pack back to HO today. We have added more evidence such as my wife's saving and ISA accounts statements. I hope it can prove that she was self-sufficient over last 5 years.

I already called local immigration team. They refused to return my passport. Agreed that I will call them back again as soon as I send documents to Home Office.

The problem is that I need to travel a lot on business and this situation really affects my work.

[Directive/2004/38/EC]

Lawyers are quiet expensive and I don't understand why I should pay if I never did anything wrong, provided all documents.
[...]
The problem is that I need to travel a lot on business and this situation really affects my work.

While I agree with you about not wanting to spend a lot of money for a lawyer...

I'm sending the pack back to HO today. We have added more evidence such as my wife's saving and ISA accounts statements. I hope it can prove that she was self-sufficient over last 5 years.

Be sure to include a letter from you and from her which explains that (these are examples and you should use what is appropriate for your (1) you are married, (2) that she has full unrestricted access to all access to any income that you make, (3) that you have a joint bank account.... Be explicit in explaining that your income is available for your wife's use. Do not assume that UKBA will assume that.

Also be sure to keep copies of EVERYTHING you send.

I already called local immigration team. They refused to return my passport. Agreed that I will call them back again as soon as I send documents to Home Office.

What exactly did you ask? What exactly did they say?

[SeaJohn]

When I called local immigarion team I spoke to arrest team. They don't really understand EU regulations and repeated that I have 3 options: leave the UK, submit appeal or further application. So I told them that I'm going to submit further application. They will forward passport back to relevant department.

I sent EEA3+4 application last week. I call HO everyday but it seems impossible to get through. I dial 0151 672 5626 ( Opt1, then 2), they put me on hold and then tell that all info on UKBA website.

I want to request confirmation that I can work in UK and also request for priority treatment of EEA aplication as I'm unable to make journeys necessary for business reasons on existing documents (see http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary)