On non-EEA women with children estranged from abusive EEA husbands, whose applications HO now routinely refuses to even consider, despite any evidence advanced: small steps. One case at a time. There are updates at the bottom of this post on how cases have further unfolded.
**AS OF AUTUMN-WINTER 2018-2019, I HAVE CASES IN THE APPEALS PROCESS ON THE FOLLOWING SIGNIFICANT ISSUES:
SURINDER SINGH/ COL TEST/ GENUINE RESIDENCE
ADR ENTERING ON A VISIT VISA AND THEN FILING AN IN-COUNTRY HR APPLICATION, NOW ARGUING FOR APPLICATION OF ADR RULES /CHIKWAMBA (90 YEARS OLD) *** TO BE HEARD IN HATTON CROSS 22 JANUARY 2019 ***
I ALWAYS WELCOME INPUT AND COLLABORATION ON ISSUES ON APPEAL
** some new cases described here in my appeal chronicles: http://immigrationpolicy.org.uk/archives/890
My FTT appeals May-June 2018: 18-month St Prix leave, WRS “job start date”, Ibrahim/Texteira “alternative carer” test
2017 Update. Memorable cases from 2017. Status updated as of July 2018 but I am unable to add new cases due to time constraints (sorry)
RK – One of the most epic cases of the year for us). RK is a long-time client, a sort of a classic case of someone who lived in the UK for many years, always legally, but never quite managed ILR. The client initially conducted all his UK immigration on a Russian passport, although also held a Ukrainian one. He’d been on Tier 4, then he and his wife (also Russian) switch between principal and dependant of PSW, and then she switched to tier 2, and he became her dependant (after unsuccessfully applying for Entrepreneur visa in Russia in 2013). He was however always an entrepreneur, and a reasonably successful one, mostly along the lines of property development/construction.
The wife was granted ILR in 2017 after 5 years on Tier 2, and the UK-born son was registered as British. The client, however, knew in advance that he would not qualify for ILR at the same time, since he re-joined his wife as a dependant from abroad in 2013 (he was attempting to switch to Tier 1 Entrepreneur, and, due to hysteria that surrounded in-country PSW/T1E switchers at the time, judged reasonably that an application from Moscow stood a better chance — and when it was denied, was forced to apply for a new entry clearance, this time as a T2 dependant). This had put him on his own PBS dependant 5-year route — and, at that, he’d also have 10 years around 2018. So it was never an IF but a WHEN, although a caution received in 2016 did not help.
It was not going to be a big deal — but when the client called me in 2016 to talk about the caution, something else came up. The fact that he and his mother have, in 2015, obtained EU passports through her ancestry, and, to top that up, he’d been using an EU passport to enter the UK the last 5 times (by then). To my mind, that meant that he was not, effectively, as Tier 2 dependant anymore. He’d have abandoned that leave the last time he left the UK after having been admitted in that capacity, and did not resume it, because he was not re-admitted to resume that leave. To resume a previously granted leave, one has to be re-admitted by an IO specifically for that purpose. Clearly, that had not happened — it could have only been fixed, in theory, by leaving the UK and re-entering again on Russian passport, which — thinking now — could have been possible, since no one would count his days of absence as a PBS dependant at settlement in 2018 – but for a number of reasons we didn’t bother with that.
At that time, I informed the client and, to boot, his mother than they were now EU citizens exercising Treaty Rights as self-sufficient persons, seeing as both had generous bank balances that easily proved that, then I forced them to get expensive health insurance and got them Registration certificates. I assured RK, after some research, that he should be able to rely on all this mess of status successions in one way or another to apply for ILR on the basis of 10 years in 2018 after all.
Then, however, something else drew my attention. I read some on Ziolkowski case – one that famously declared that one could acquire EU PR at accession of their country of citizenship to the EU, relying on 5 years on residence in the host state while engaged — legally – in an activity of a combination of activities, that would have been exercise of Treaty Rights, had they been an EU citizen all this time (eg working, studying, etc etc). Would that likewise apply to someone who had only recently acquired the nationality of an EU state? (We did take care to indicate that in the mother/son case here the documents seemed to say they “resumed” or “restored” nationality to which they had always been entitled).
I recall asking our celebrity barrister and judge Mark Symes this question after an HJT training session in December 2016, to which he replied, solemnly, that this will probably be a reference to ECJ. After that I called RK and told him that the application is going ahead. “The barrister says it is going to be an ECJ reference, but I bet you it will just go through and no one will know any better”, — i told him. I was right! That despite the fact that the application was decorated all around with caveats that it was complex and attention was drawn specifically to the fact that he had not previously resided as an EU national and in fact had only recently obtained an EU passport..
There were further complications, such as, his nature of Treaty rights was business organised, reasonably, around minimising tax, rather then outwardly demonstrating activity (as one would if they ever envisioned having to prove treaty rights), in other words, companies/businesses controlled by RK were actively trading but showed loss for tax purposes, and on top of that some of the property development was carried out as selling and buying rather than as a business (a fairly normal way to do it for a private citizen with 1-2 projects at a time). In that case, any tax arising could be capital gains rather than income. A picture of the application file, weighing 7 kg and organised into 6 huge folders which HO immediately discarded along with all paper clips, turning the file into an incomprehensible heap, was posted on my Facebook (obviously while it was still well organised, not when it was a heap).
If you then want to see what the file looked like when it came back, because — as HO alleged – it fell for refusal for failure to provide original ID again — even though he had a recently issued Registration certificate — giv ing a spur to a separate judicial review action, still pending, on reasonableness of requiring EU citizens to prove identity twice, when they have already been issued with docs, and on why HO stopped recognising Barnet in 2016 Regs. (This is a separate topic, but i think it may have something to do with approval — I noticed HO tend to approve even avante guarde EU cases where applicants have action pending in Admin court challenging HO procedures, this had already happened to me twice). But if you want to see what it looked like when it came back, you only have to look into your recycling bin. Nothing more, nothing less. Let alone that it cost £26 to post again, and I am still waiting for compensation of that and re-filing fee.
Moving on, when I was faced with a need to re-file it, I just sat there looking at the HEAP — 7 kg! – for two hours, after which I stuffed it back in the postal bag just like it was, as a heap, and attached to it, on top, a photo of what it looked like when submitted the first time. After all these people were just having a laugh. It had taken RK and I both a whole day dawn till dusk and later to put it together the first time. I wasn’t going to do that again. They didn’t even consider it, but they however bothered to thrown away all my expensive stationery and turn it into a heap of recycling? Where was I even to start? So that was that. Sent it all back 28 March. Received document certifying permanent residence in July.
I was so exhausted after that that I — predictably as expected by then probably — am pushing for JR to be settled if only HO re-pay duplicate application fees and extra postal fees to affected (RK and interested parties, namely me since I paid them fro others under service guarantee) those who applied initially before 31 January 2017, but were after that date sent applications back (as “refusals without considerations on the merit” and not “rejections with part-refund”) because of lack of ID.
I still maintain however that Barnet was decided directly on EU law, and could not be overwritten with new version of the regulations. And that what their senior caseworkers have been writing to me lately about Barnet applying only to family members is a bunch of gibberish.
WAW – This is a case memorable not of itself, but of circumstances surrounding it — and that it seems to consist of nested ongoing cases/situations. A Russian and Estonian citizen woman walked into my office in January, on rather a short notice, with a Kuwaiti fellow he introduced as her husband. He needs a “visa”, she said, and since this was all happening very quickly — for me anyway — we then filed an application for a Residence card of a family member of an EU citizen. They sent me some photos from their wedding and travels, we wrote a letter, etc etc and we sent it off, their marriage certificate was some sort of legal paper in Arabic with attached English translation. ALL of this had A LOT of seal and stamps and signatures. The file was overall impressive, especially since it was apparent from the background and photos that the husband was a rather prominent Kuwaiti citizen, unless of course it’s a norm in that country to have a palace-sized home with a gallery of portraits of your fathers and grandfathers. Off it went.
The next few days it transpired that the husband — both of them – actually planned to urgently travel back to Kuwait next month and wished then to come back. After mulling over details, we decided – OK, after all, it seemed he would get his passport back — although it took some prodding — and a Certificate of Application, and he still had a valid visitor visa in that passport, so I reckoned he’d be able to get on a plane with it and then enter the country with COA and the wife, rather, basically, the wife and the marriage certificate. They explained cheerfully that they had another copy of the certificate, basically same paper with another even more impressive looking and stamp-covered translation.
After that whirlwind had died down, I remembered struggling, at the time of filing out the application with the marriage date — since the paper I was given seemed to refer to different dates. There was the date of the paper — which seemed , on closer examination, to be some decision by a Kuwaiti family court declaring them married – so there was the court decision date, the date on which it seems some hearing took place before that court and/or the application was made to it, and then some other date of ceremony, which that court seemed to be declaring a valid marriage. Initially filling out the papers i went with the decision date.
So the next day I was in my office looking over that “marriage certificate” and read the translation more carefully. Then in dawned upon me, that the ceremony that the Kuwaiti court was declaring to be a legal marriage was in fact a Nikkah ceremony that took place… in London! No surprise here — in Kuwaiti law, the marriage is valid so long as it is a properly officiated Islamic marriage. No matter where it took place. So while the couple actually had a wedding reception in Kuwait, the ceremony they were confirming was the one that took place months earlier, in London — ostensibly, in order to enable them to consummate their relationship, as Islam required for the couple to be married and the husband is an observant Muslim. After arriving in Kuwait afterwards, they could not marry again under Kuwaiti law — in Islam, they were already married, as far as Kuwait was concerned. Plus, there were issues surrounding the need for the bride’s father to be present, which the father, resident in Russia, apparently was unavailable to do. Why could they not marry civilly in Kuwait, I do not know, since my own internet research suggested it was a thing, but apparently not.
The couple did not see a problem — nor, as I predicted then, did the Home Office EEA Casework, nor any of the immigration officers the husband encountered on his TWO trips abroad (the second taking place after the tourist visa had already expired, and at a high risk that he’d be stuck overseas if the residence cards was refused while he was in-flight — don’t ask! So everything went smoothly and even the Residence card was issued. However.
In reality, we recognise a marriage (barring some criteria that were not present here, such as, it being historic and subsisting for many years, no matter what proof there was of its origins) that is valid in the country in which it took place. There’s the rub — the marriage, of course,boils down to the Nikkah ceremony that took place in London, and of course religious ceremonies are not a valid marriage here. Even though it was valid in Kuwait — which we all believe — that was not enough. It must be valid in the country where it took place, and it took place here. Here, it is not valid. After I compelled the couple to consult with family lawyers and a local registrar’s office, the answer was pretty clear — in English law, they are not presently married.
Meanwhile, the following thing happened. Firstly, the wife purchased a flat in London. Secondly, they are now expecting a child. Thirdly, the wife, who had a PR document, applied for naturalisation. Whether or not the couple are actually married, will have a huge bearing on the ultimate disposition of all these matters, such as issue, property, and impact of naturalisation. Lounes seems to suggest so far, pending a final decision, that the husband’s EU right to reside would be protected, so long as he was married to the wife before she became British. And she in turn has the application pending and will have 90 days to take the oath after it is approved — which she wants to do ASAP, since she wants to fly to Kuwait to give birth.
They have realised a few months ago that they need to marry again, but this is really more difficult than it seems. Kuwait won’t do it, because as far as Kuwait is concerned, they are already married, so they’d have to get divorced first. Russia would only do it if Kuwait gives a paper confirming that the husband is not yet married — which he is, as far as Kuwait is concerned. To her. Marriage in the UK was the trickiest idea of all, due to the application for a Residence card that was pending on the premise that they are already married. Even though the registrar agreed that they were not really married yet, I advised them not to give notice — he’d not be exempt from the MRAU referral, and such a referral if anything would prejudice the pending RC application.
Now that the RC has been issued, they went to give notice successfully – but whether or not they are being referred to MRAU is unclear to me, since his only immigration status document is a residence card which is given on the basis that he is already married, to her. Will Ho treat this as a marriage between already recognised unmarried partners, or will they have questions? The saga continues, and, with naturalisation looking and the baby around the corner, taking more urgent pace. Watch this space.
Update: The couple were able to sucessfully marry (again) in the UK and were not referred to MRAU; the wife went on to naturalise as British immediately afterwards, being advised of effects of Lounes which had been by then just decided.
M&KV – An approval of a Surinder Singh case was just received in August 2017, the applicants were the parents of a British citizen of Indian descent who spent around a year working in Poland due to transfer by her employer to another office (the employer is an international co). The applying parents did reside with her (and her son) in Poland, which they entered under special visas issued to them as family members of an EU citizen and where they had Article 10 residence cards. We also showed, in deference to 2016 Reg, that the house she owned in the UK could not be sold prior to move because it had been co-owned with her ex-husband and was tied up in ongoing divorce, but that it had been rented out during her time in Poland. The “SS Taskforce” seems to be really hung up on “returning to the same residence”.
That being said, the family did not know about McCarthy2 right of entry, so they applied for and were promptly denied EEA FPs in Warsaw (even before 2016 Regs took effect). They had filed an appeal against that, during which time, alarmed at the unveiled 2016 regulations, the sponsor had realised they could use existing Polish cards to fly to the UK — but, and this was I think a good idea given they had an EEA FP refusal, they flew to Ireland and traveled onwards to the UK overland/sea.
That being said, once we filed the applications — and, I am guessing, because of the pending appeal – we got a lot of hard time, HO refused to return their passports insisting they were in the UK “illegally”, and while trying to explain that they entered under Reg 11, we got an unintelligible tear-provokingly stupid response to a PAP (which has lately become a norm. I guess efforts to hire literate people for the Capita-staffed “Litigation” team at Lunar house proved predictably fruitless).
This is the only Singh case I dared file under the new rules in 2016 Regulations (even though I had some Singh pre-November 2016 applications approved afterwards, but they were the ones where issues of Center of life did not arise). Interestingly I thought this case reasonably strong on new rules and COL but weak on financial dependency, as we were only really able to show dependency already in Poland and prepared for a legal argument as to why that was acceptable. Ironically, it seems the “Taskforce” — which is actually the same infamous permanent migration interview team – seems to focus on COL only.
Update: Following the receipt of his Residence card, KV had applied for Pension Credit — and was, not promptly but 6 months later, denied. DWP denies, apparently, all Singh parents based on COL, refuses to accept any determinations by the UKVi which already gave them the Residence cards, quoting Dias — which is a dupe, Dias is not about that at all. There is material difference between clear mistake where everyone agrees that there was never a right of residence, and cases where right of residence is subject to examinations of the facts, which could go, according to the process employed by the govt, either way – and then re-determining it every — what, week? month? KV applied for Pension Credit THE NEXT WEEK after getting the Residence card. Does the government think it should not be bound by its own determinations at all? What about all of these people that are employed giving out Residence cards, at the taxpayer expense? are they engaging in completely meaning less job then, since cards seem to be good for nothing?
(Ironically after the reading of Appendix EU introduces as a whiff of the post-Brexit regime I concluded that they intend to, finally, accept Residence cards for face value and will not re-litigate them – but it will not repay KV two years of benefits lost! DWP would not even issue a mandatory reconsideration letter necessary for the appeal in the Social Security Tribunal until we resend whole SS file to them — they, due to their ignorance and stupidity, refused to recognise my argument that Residence card under the circumstances had to have been conclusive, as an argument at all, so were sabotaging illegally KV’s right of appeal. As of July 2018, we are awaiting for a hearing listing date in the Social Security Tribunal.
MM– The client came to me with a problem. After 3.5 years on Tier 2, she was being laid off at the end of next month. Quite a common problem, about which there is not much to do usually, unless one can find anotehr Tier 2 sponsor before their leave is curtailed — which is usually an unknown and hard to predict future date anywhere from 2 to 5-6 months from the SMS notification by the sponsor (I had in the past done a new Tier 2 at the end of October for someone who had been laid off in July).
But this person had one advantage – an EU citizen child, who derived EU citizenship from his father (who was not in a current relationship with the mother and does not live in the UK). I could see that she had a possible Chen application for a derivative residence card, but how to port it to still-valid Tier 2 correctly? Firstly, a derivative right to reside, HO says, will only be available where no other right exists, not by choice – eg it means that a person has to no longer have a Tier 2 leave in order to be issued with a residence card.
Yet, the client’s main concern was not to lose continuity that would be required for a future successful SET(LR) application, since those with derivative right of residence do not acquire PR under EU law. She asked me whether derivative right of residence was automatic, eg she could assert that it existed all along, since before Tier 2 is curtailed, whenever it is. I am still to be honest not clear on that — it seems by and large than yes, HO is treating it as an automatic right, as those applying for Chen derivative cards are issued full COA with right to work. Yet, their internal staff guidance says it can only be asserted when no other leave exists, and she still had T2 leave. It seemed to follow that Chen right would at the very least kick in at any moment when T2 leave is curtailed. Or maybe just at the moment when she is fired?
And how were we going to explain all this stuff about automatic rights 6.5 years later to someone who was still in primary school during Brexit? Those who use their direct EU right to reside as a spouse in SET(LR) applications have been successful at asserting it from the date of marriage, but that is today while such rights still exist — and this woman’s SET(LR) application is to come in 6.5 years, years after Brexit.
In the end, we filed ASAP – two weeks before planned lay-off date. As proof that she was about to lose T2 status, we enclosed her notice of upcoming lay-off – but we also at the same time partly relied on her then-still-ongoing earnings in that T2 job, and health coverage from that employer, to show that the EU child was actually self-sufficient. The same staff guidance on Chen applications seemed to suggest that it was OK for a Chen parent to rely on their still ongoing earning sunder a right to work in another immigration category to show initial self-sufficiency and then to start relying on an employment under the Chen right.
I am not a fan of circular EU self-sufficiency (eg one that relies on earnings one only has due to family members employment right that is a result of their self-sufficiency). So I also made sure we demonstrated £1000 a month child support the absent EU national father was paying thankfully through bank transfers, and also provided a letter from him proving his residence in another EU state.
Chen residence card was received in what I consider a record 3.5 months, although after initial irregular delay in issuing COA. But all is well — I assume derivative is a shorter queue then?
If you want to ask why this was not an Ibrahim/Texteira case, well, firstly the child is too small to be considered in education, and we had no access to proof that the father ever worked in the UK since after the child was born (which was here).
Sorry I almost never have time to write our stories of new cases, although there is a lot to tell.
Here is a selection of notable or simply memorable cases which I handled in the past. Status where I could is updated as of 30/7/2017 .
A few cases recently that were not particularly legally challenging, but involved unusual situations or required out-of-the-box thinking… Some I guess are just sad results of previously received incorrect advice or wrong beliefs.
TG. The client, a Russian citizen, had been married to her British husband since the 1990s, and have a son together who is over 18 now — but they have never lived in the UK. They lived in Russia for years, and then in Cyprus for 11 years (where applicant had successive residence cards as a wife of an EU citizen).
Sponsor worked all this time, but has now retired and the family decided to move to the UK last year, for the son’s A-levels. They traveled from Cyprus to Moscow, where they had apparently asked for advice from some consultant about applying for a “spouse visa” — and this was of course what they got, and surmised from it that they do not qualify, since there was no way the husband, now pensioner, was going to meet the financial requirement.
Wife got a visitor visa instead, and off they went. Out of fear of law breaking, she never stayed more than 3 months at a ttime in the UK and traveled to Moscow, where she slept at friends’ couches because her own flat was rented out (they were not apparently advised that the proceeds could also be used for spouse visa sponsorship!).
No one at any time had suggested to the poor woman that a Surinder Singh application was an option. Even though they lived for years under EU law and were familiar with the Directive, a possibility of using it to return to the UK simply had not occurred to them.
At one point the poor woman posted a frantic message in some FB group, screenshots of which had been forwarded to me by as many as two people! We got in touch and determined that they have all paperwork for a Surinder Singh application and there should be no problem with it — except of course, when they all came over and we were about to submit it, the problem arose.
Having been married for 20 years, the couple have hopelessly misplaced their original marriage certificate. Marriage took place in Russia years ago, and actually a new one could be obtained from the registry in Russia at any moment, they are usually issued on the spot. To one of the spouses. In person. Of whom both are in the UK of course, and the Referendum is looming ))
In fact, for many years, as it transpired, they carried around a bundle of docs which contained a translation of the marriage certificate by the British embassy in Moscow, and it worked everywhere — they told me somewhat grudgingly – but it was just that — a translation, it was not attached to the certificate itself and not even a copy of it. And we all painfully know that original marriage certificate is all but one set-in-stone requirement! I initially advised the couple that the application could still be made and will be considered on the basis of durable partnership – but upon reflection, I disfavoured such an approach, because durable partners’ status is not inherent in the treaties, and not retained in case of relationship breakdown or somehting happening to the sponsor (who is after all an OAP).
So I finally advised the couple to scramble for a power of attorney at a Russian consulate, with which to dispatch an emissary to Moscow to obtain a replacement certificate. So they were off to a night drive to Russian consulate in Edinburgh, since the nearest appointment in London was 18th of July. Miraculously, on 22 June a new marriage certificate was issued in Russia, and, after some delays in getting it here, application was filed on 29th June.
This was not the end, after waiting for 6 months, and just after on 26th November new version of Regulation 9 came into effect in EEA Regulations, and “Surinder Singh taskforce” was created in Sheffield, we received a request for further information, which included, among other things, specifically request to provide proof that the sponsor is now exercising Treaty Rights — which seemed bizarre, since there was Eind and HO always recognised that British Sponsors are not required to exercise Treaty Rights upon return.
In this case, however, even though the sponsor was not retired, I realised that the family had some savings and were not on public assitance – as such, we scrambled to get health insurance urgently for TG, which was thankfully not required for the husband — and enclosed bank statements showing considerable savings, as well as some non-employment income coming in, on a theory that he is exercising Treat Rights as a self-sufficient person. That worked! Finally, in February 2017 TG was issued with a Residence card.
DK. The client is a spouse of a Lithuanian citizen — she was born and raised in Lithuania, but has a Russian passport (happens a lot over there). The couple are both very young, in their mid-20s. Six years ago after they got married, the husband found a job in the UK and wanted to bring his wife here, but she was refused an EEA Family permit twice, both times illegally based on what I can tell, with some allegations that they did not prove that theirs was not a marriage of convenience (happens a lot, no legal basis whatsoever).
After that they moved to Norway and lived there for a few years, the client held a Norwegian residence card which is now a “qualifying EEA document” for UK entry under the Regulations, except it needs to be a “document titled Residence card of a family member of an EEA citizen”, and it was — but the title was only and entirely in Norwegian.
The couple entirely did not believe me that it should help them with UK entry, and actually wanted to apply for an EEA Family permit, but it turns out there is no VAC in Lithuania anymore, and the only way to apply was in Warzsaw, which, respectfully, is already 1/3 of the way to the UK anyway! How was she ever supposed to get back home without a passport, if she’d left it in Warszaw? In the end, I told the family to take a plane to Paris, and personally picked them up from CDG on my way back from Spain, and drove with them to Calais, armed with the printout of rthe Regulations and a Google translate of the title of the Norwegian document (to be fair, the document was still valid but entirely not impressive, I hope Norwegians improved their act somewhat in the last 5 years!).
There we missed a ferry and were sent to a pedestrian walk-through control hangar, where after at least 40 minutes of entirely pointless waiting, during which my daughter, who got mixed up in this inadvertently, nearly strangled me, I had to yell an a few people to eventually get their attention. Once they realised who we were and why, and I highlighted my profession, it all went better. A SIO soon emerged who was very knowledgeable and well prepared to deal with an unusual EU law matter, albeit in his own reasoning, but to a satisfactory result.
Border force was not particularly impressed with the Norwegian document. “Let’s all agree, we do not really know what this is”, the SIO said. I did not agree, but did not say anything, as it seems he was otherwise well-versed at to the client’s right of entry and was already scribbling away on the back of her Landing card (which I prepared). Upon establishing that the couple have been married for 6 years, he said he was very happy to admit her on the basis of the marriage certificate and explained to me for a long time why he was stampting her passport (I knew why and did not object to stamping, in fact I felt the “EEA Regulations” stamp that says “six months” would in fact help her explain how she got in, to anyone she encountered later, but whatever).
He did actually confuse the marriage certificate and the the birth certificate of the couple’s child (who was also present), but in the end, no harm no foul, as a just result was achieved. The family were wished a happy journey and it was all generally smiles and more. “Family permit is not mandatory, you know”– he said reassuringly to us. Yes, we knew!! If only more people in the Border Force knew! But, here we go. Another family’s start to a happy life in the UK.
Update – Residence Card issued on 18-03-17
EY. The client, a former non-EEA spouse with Retained right of residence and a Residence card confirming that, came to me wanting to apply for Permanent Residence card. An interesting question came up — could a non-EEA family member with retained right of residence, who has to exercise Treaty rights post-divorce, benefit in that exercise from retained worker status, or, more crucially, jobseeker status under Shabani?
It was a fascinating question, however we decided not to explore it further once I realised that the applicant had 5 full years within going into this, if counted form the date of the marriage (when both she and the future husband already lived in the UK). The client had previously only considered her EU residence from the time she left the country in 2010 and later re-entered with EEA Family permit, but of course in current practice after Metock, we consider all manners of immigration status as qualifying time for PR, so from date of marriage there was 5 years without ever going into fascinating questions above (too bad for jurisprudential science! But probably good for the applicant). And thankfully the ex-husband had been WRS registered!
The applicant in this case received a Permanent Residence card following our application, however there are further comments.
Firstly, the “PR date letter” she received appeared wrong, and put PR date erroneously on a 5th anniversary of her re-entry with an EEA Family permit, instead of of the start of her residence here while already married to her husband. On the facts of the application and evidence this was nonsensical, but it appeared not in her interest to attempt to have it reconsidered, as in practice it made no difference in her case.
Later, I had a chance to look further into her original question — can a person with a retained right of residence be a Shabani jobseeker or retain worker status following a 1+ year employment? I now believe that yes they can.
KI. The client first came to me in December 2015 for advice, and formulated his question thus: I have been, he says, in the UK illegally for some 15 years, now married to a British citizen, no kids, what can I do? I probed a bit and said, as I remember – go back to Russia and apply for a spouse visa, which you will get, if all you have done was overstay. After that followed an amusing exchange in which I surmised that the client was not hugely fond of Russia and considered going there an impossibility all round — which I made fun of, saying that Russia today is not the same Russia he left in the 1990s.
But there was of course more to this story — as I found out in April 2016, when the client called again, and said that in fact he had previously filed for asylum and an appeal against refusal was to be heard at the end of May. He had since decided to heed my earlier advice and attempt to indeed travel to Russia, in order to apply for a spouse visa – but could not obtain a Russian passport, since the last one he had expired years ago, and still said USSR on it.
In fact it turns out there have been problems with leaving Russia last time around and there is a possibility that passport may be refused, if there is a travel restriction in force. He went through a complex “confirmation of citizenship” process and was now awaiting a result of an application for a new passport, which we estimate to come through in July.
So he asked me to help him persuade the Tribunal to adjourn until the end of summer. The idea was actually quite sensible. If he is refused the Russian passport, clearly his fears of persecution were not entirely meritless — and this triggers a strong CHIKWAMBA argument, since the client otherwise meets all requirements of Appendix FM on a 5-year route, but for the immigration status.
And if he is issued with it, he will accept that Russia has changed, and travel there voluntarily! After some back and forth, we persuaded the reluctant Tribunal to see wisdom in proposed approach, and the appeal has been adjourned to 2 September, for which we thank the Tribunal immensely.
UPDATE. Having received a new Russian passport, KI took his SELT test and departed the UK on his own initiative on 21/08/16.
We initially intended to file for a spouse visa from Moscow on 2nd September, but I pulled the plug on that at the last moment, when I realised that the wife’s financial documents were just too funny – there were some problems with dates of dividend distributions in her company, and plus, most of funds were held on Paypal accounts (the company was an Ebay seller). This was doable but very complex. I had noticed, while looking over their financials again, that she seemed to have savings overall amounting to £62.5K which we would only have to wait until October to mature 6 months, so the application was rescheduled to 26th October.
Myself and the wife flew to Moscow to file the entry clearance application. These are a further adventure, as the very day we turned it all in at the VAC there, as it turned out later, was the day UKVI decided to transfer all Russian settlement applications to Sheffield! No one told us when we were there, however — they took out stuff!” Even though it later turned out stuff had to already go to Sheffield, so I personally didn’t even have to get on the plane!
At any rate, it ended well — Ki received his spouse visa in November 2016, and in just about 2 weeks! That, after 16 years in the UK illegally and a failed asylum application. Putting him myself on a plane to Russia was the scariest — in terms of responsibility — thing I had done in this practice so far! — so think very hard before trying this at home kids, immigration history and any refusals, especially asylum, have to be looked at VERY carefully to make sure character grounds of refusal would not apply.
OM. The client is an EU citizen of an A8 country, who has lived in the UK forever (pre-assession). Has two children born here more than 10 years ago, who have no passports. None. Because they have no citizenship. Their father was a failed asylum seeker from a third non-EU country whose passport at the time has been lost in HO, later he faded and left the country or basically contact was lost with him. But he was on the birth certificate and children have his surname.
So the mother’s EU country (which was barely just in the EU then) refused them passports, demanding that father’s identity be established first and he gave consent, which was first impossible without the father’s passport, and is now impossible without the father himself. In fact I personally believe the children likely have the father’s citizenship by birth, except it is impossible to prove with him initially without a passport, and now in the wind altogether.
The mother tried to get them passports of stateless persons, but hit the same roadblock — they were asking that she prove non-acquisition of parental citizenship. To this last demand, the EU country cheerfully acquiesed, but with the father’country there was the same problem as the first time around. So here they all stayed, basically trapped in the UK.
The mother by now could have acquired PR,and last could have made a move directly to register children as British under section 1(3), to which they’d have an entitlement (children born in the Uk to a parent who later becomes settled). But she never thought, or was advised, of that — so she never took particular care with record-keeping, and now of course here we are, document certifying PR is mandatory, the Referendum is near, unprecedented application surge is under way, and there is total and complete chaos.
But basically, these children could have been registered as British by entitlement years ago, no questions asked about the missing father other than a note that contact is lost — if only someone had advised this family correctly. Fascinating story.
UPDATE I have afterwards realised that the children may also be registered on the form T, under 1(4) as children who were born here and lived here for 10 years after birth. Apparently, the mother had considered this and dismissed it because she mistakenly believed that they need to have some nationality in order to be registered under this provision! This is a mistaken belief. Entitlement is entitlement. You do not need to already have a nationality.
UPDATE2. The mother finally received a document certifying permanent residence and I helped her check MN1s in March 2017, so hopefully these beautiful young women’s ordeal will soon be over. Application were made under 1(3).
UPDATE3 in July 2017 both gorgeous girls finally received British passports!
AR. EU: Worker who ceased activity before reaching UK retirement age, but since definitely retired. Old age vs incapacity/ self-employed or worker?/ which pension age applies?
The applicant and his wife are A8 EU citizens, but have resided in the UK as refugees (with applications pending) for several years prior to the accession. At the time of accession in May 2004, the applicant became self-employed and worked in this capacity until last week of May 2005, for just over a year, at which point he turned 60 year old. None of these facts are in dispute.
It was at that time that the Applicant made a mistake — as his wife, who had turned 60 earlier than year, was informed she reached state pension age, he had assumed that he too had reached pension age. He later filed for PR as worker who ceased activity, and application was denied with a very ill-articulated refusal letter, which simply did not make sense. It was only after the applicant and people who had been previously trying to help him came to me in 2015, that we realised that in fact he did not reach UK state pension age until he turned 65 in 2010. HO appears to concede to accepting pre-ascension residence, but their position is that he has not acquired PR because he ceased activity earlier, and not at the moment when he reached pension age. We concede this stems from literal reading of regulation 5.
This however is one of the cases where, due to the applicant’s obviously further advanced age at present, the circumstances cannot be improved and have to be argued as they are (e.g., he is not about to work any more).
We are arguing that, very briefly, that:
(a) Under the reasoning in Zubair  UKUT 00196(IAC), it follows that cessation of activity need not be immediately prior to the permanent incapacity, so long as it is the incapacity that now prevents continuation of activity. We posit that the same should apply to advanced old age, because it likewise prevents any future work. There is no need to treat old age differently from incapacity for this purpose.
(b) The nature of the activities actually carried out by the applicant between May 2004 and May 2005 represented work for hire more so than self-employment, even though it had taken a tax/accounting form of self-employment. It is the nature of activity that matters, not how it is legally organised and reported for tax purposes. Therefore applicant should be considered under 17(1)(a) of the 2004/38 directive and (5)(2)(a)(ii) or EEA 2006 Regulations, as worker “who ceased paid employment to take early retirement”
(c) As of May 2005, the rules on qualifying for Basic State Pension in the UK were such that they would not have provided the applicant with a pension, even if he had been the correct age for State Pension at the time, because he would not have had enough national insurance contributions. 2004/38 Directive provides in Art 17(1)(a) that “If the law of the host Member State does not grant the right to an old age pension to certain categories of self-employed persons, the age condition shall be deemed to have been met once the person concerned has reached the age of 60”. This should therefore apply to the applicant.
(d) The state pension age for men in Appellant’s home Member state, Estonia, was 60 for him at the time, and applying a higher age, that would place him at an immigration disadvantage in a host state, is contrary to the aims of the Directive 2004/38, Reg 883/2004 and TFEU more generally, as such restriction deters Free Movement.
As of September 2016, FTT denied the appeal, in a 12-page decision that takes apart every ground meticulously, but with errors — to be honest we appealed on papers, because we did not expect FTT to resolve this, since this would require essentially a policy change.
Right of appeal was denied by FTT and UT in one-paragraph nonsensical refusals that basiclally say judge right, me wrong — neither of the judges bothered to even read the grounds, obviously. The latest one in fact accidentally adopted my client’s position in denying him right of appeal, saying that he “worked for a year” apparently unaware of EEA Regulations whatsoever.
I have filed a JR as a practitioner because I find this incompetence insulting, but advised client to re-file for PR focusing specifically on the Lawrie-Blum v Land Berlin ground (eg that it was work, not self-emploiyment). I now believe that to be the strongest ground.
UPDATE I will no longer monitor this case or participate in it, on ethical grounds, because I have, for various reasons, developed a doubt in some initially given circumstances of the case.
PK. Surinder Singh as self-sufficient, time to accept O and B V Netherlands
The applicant is Russian and his wife is British and Russian (naturalised as British years earlier after her first marriage to a BC, but moved back to Russia after divorce). They have a child together and have been married for many years, for all of which they resided away from the UK, partly in Russia and partly in Spain, where they own property and have provided extensive evidence of residence.
The applicant has received a permanent residence card under Community law in Spain as a family member of an EU citizen. The wife, however, only ever resided in Spain as a self-sufficient person (source of wealth was in Russia). Surinder Singh application for a Residence card has now been filed in the UK in order to force SSHD acceptance of the famous judgement in O and B V. Netherlands, which, as is wide legal consensus, ruled that self-sufficiency-based cases should be accepted for Surinder Singh, and which she just as famously ignores (except the bits she likes). In my humble opinion this is a perfect test case for this principle, and not too soon considering judgement has been out for 2 years.
I welcome contact from anyone with similar applications pending in any stage, and also welcome anyone’s thoughts on whether or not it should matter to the ultimate outcome that source of wealth during self-sufficiency residence in Spain has been from the third country (Russia) and not the UK — eg, on the premise that policy of not accepting self-sufficiency may have something to do with circularity (eg that residence in a foreign state is not genuine if it is economically based in the UK). The case is in initial application stage and has not been refused, and so far we have not put this distinction as an argument (court in O and B v Netherlands does not make such distinction), however I now think maybe it may matter in the future. There are cases, for instance, where it was sufficiently argued that “center of life” could have been in a third country, and there could be a parallel in the thinking here.
UPDATE Residence card was received on first application, fueling my suspicion that actually HO does quietly recognise para 49 and 50 from this judgement, they just don’t want to admit it publicly or update the Regulations! Very apt, since no one has to appeal there is no judgment to set the precedent.
UPDATE Of course we now know that on 26/11/16 new Regulations came in effect that indeed accept self-sufficiency for Surinder Singh purposes, so this approval was probably a precursor to those changes.
KK. EEA sham marriage allegation, based only on the fact of interracial marriage as “reasonable suspicion”
This is a case that has taken most of my energy last year, and is only entering its full swing now. It is perhaps the first ever I have come close to injustice that left me speechless — my typical applicant, until then, was a Tier 1/2 migrant, and I have never been involved with dramatic numerous refusals, illegal stays, crushing allegations or “jurisprudence” worthy of a Kafka novel — I thought those things were all sort of lore more than reality. They simply did not happen to people I ever had to deal with. Over Christmas holidays 2014/2015, I advertised (first and only time in my life) in a Russian-language newspaper, and from that ad, this applicant’s wife has rang me. None of our lives, or my practice, were or ever will be the same again.
KK is an Indian citizen, who entered the UK illegally a number of years ago, living clandestinely until around 2010.
Wife and stepson are EU citizens (and have both been since issued with documents confirming PR, on applications I filed in the meantime).
The couple have been married since 2012 and HO has alleged marriage of convenience, as it says, because it had undertaken a visit to the applicant’s home and did not find either of them there (they have moved some months prior and notified the solicitor of the time, who apparently didn’t bother notifying HO since his was the posting address on file). It is 100% obvious, in fact, it is because it’s an interracial marriage. The HO’s entire initial case against the couple was, additionally, based on that failed visit to an old address, a premise that was recently destroyed in Agho. So the couple, just like the couple in strikingly similar case in Agho, would have eventually prevailed in appeals, have they continued and been decently represented. Unfortunately this didn’t happen.
The couple had an FTT hearing, where they were represented very poorly — the entire argument was factual in nature, and even though the representative, whom I know, tried to argue on a “common sense level” that a home visit to an old address is not evidence, no serious Papajorgji challenged was mounted at all. The case, which was baffingly listed in Birmingham even though the appellants live in London, with effect that half of the witnesses could not make it, was allowed to turn into a character assassination of the couple, and focus somehow ended up on each of their prior relationship’s, not the nonexistent evidence against them. The judge, who behaved abhorrently and should not be on the bench at all, based on what is written in that determination, literally made fun of the couple, and made far reaching, entirely unsubstantiated characterisations, that went beyond even any HO allegations. Witnesses were completely misrecorded and misinterpreted, and questions and answers mismatched on purpose. Kafka could not have imagine that. But the most appalling was the behaviour of the advisor, who, perhaps due to feeling as if he’d bee just run over by a train, mysteriously advised the couple not to appeal further but to re-apply.
He then charged them for two more reapplications, all insignificant in terms of supporting evidence, the result of which was “the claim to be married” being certified against future appeals. This was the point at which they came to me. By then, of course, the “factual determination” that a sham marriage took place, spewed out by the FTT two years back, stuck forever as the couple failed to challenge it.
Unchallenged, it technically stands. It took a lot of work to overcome the certification and regain the right of appeal. In several months, we have put together a 2kg case that relied entirely on the last 4 years of cohabitation evidence, and included evidence of miscarriage, letters from school, a report by a child psychiatrist engaged to evaluate the family dynamics — a woman with multiple PhDs, as well as signed affidavits from people whose testimony was misquoted in the first appeal, numerous new photos and bookings, bank accounts, daily mobile phone records, etc etc.
After six months, the couple were invited to a marriage interview. My advice, after very careful consideration, was not to attend.
The couple, who were getting advice from friends, unfortunately insisted on attending — in some communities, these interviews are considered good news, which trust me they are not. I should have insisted more firmly on not attending — but of course, they did, and I went with them, but this didn’t change very much. They have done not so bad — considering that 90% of the interviews were again, for some reason, focusing on their prior relationships and their initial meeting and marriage proposal five years ago, instead of present day.
Having sat through both interviews, I am confident that overall, the applicants showed overwhelming agreement on most questions and circumstances. The inevitable refusals that followed were appalling in their low quality — these were standard interview-based refusals, when random answers are taken out of context and inadequate conclusions are then made. Most likely this was only on interviews’ notes, not at all on the transcript. Two kilograms of evidence of cohabitation that we sent, including medical, educational, etc etc was ignored completely, including a report from a psychologist with several PhDs, my own affidavit and 8 pages of representations. I do not really know how to describe this refusal other than as a “barf”.About as much effort went into considering this case. “Pearls before swine” doesn’t even start to describe it. But, lo and behold, right of appeal has been won again, which was what we set out to do.
We are challenging this on all imaginable grounds, including Art 14 ground — I am looking to show, that interracial EEA marriages are automatically prejudged as “reasonable grounds of suspicion”, and somehow Papajoprgji is effectively bypassed, against lack of any empirical evidence that in fact marriage fraud is somehow more prevalent among those couples (it absolutely isn’t).
I also wonder if this is not the case, similar to cases involved in recent TOEIC dispute, where deception is routinely alleged by HO against categories of people based on attributes, rather than facts of individual cases.
We are also challenging use of interviews in particular, and interview here, both in that they were incompetently and incorrectly interpreted, and in that they generally lack probative value HO appears to place in them (there are some recent studies on that).
We are challenging the re-reliance on the previous FTT determination in the decision — even though by agreeing that certification was overcome, HO clearly agreed that new evidence of subsequent cohabitation was presented, that had not previously existed.
As we are expecting the hearing date, a lot of questions stand to be asked. Most of all, how long does that last? How far does the initial FTT decision “stand” as a factual determination, even if the couple did not appreciate the legal meaning of failure to pursue further appeals? Suppose, we were, absurdly, to accept that determination as indeed some sort of finding of facts — facts of the time, 3 years ago. What about subsequent 3 years of cohabitation as a married couple after that first appeal? Do we care now about the origins of the marriage, if we can positively establish that it is genuine today?
Where is the line?
And last but not least, sham marriage allegations should be scrutinised in the same way as fraud allegations, such as, some theory must be advances as to motive and reward, absent both of which there cannot be a finding.
I am not having any more testimony or interviews, and no more character assassinations, This is going to be a legal argument now, and assassination will be of the methods government uses to target people based on racial bias and reach premature and amateur conclusions in defiance of professional opinions and empirical evidence.
I am aware of at least one other similar case now in appeals, and there is a possibility that an organised Art 14 challenge to HO policy of automatically targeting interracial couples with nothing else for “reasonable suspicion”, and to sort out how all this slides by and around Papajoprgji, would do better in higher courts, if any of the accomplished PA barristers would be persuaded to take it on, but a group of appellants with similar legal questions need to get together then. Also looking to pull resources — something I don’t have — together with someone on finally toppling this whole nonsense with using interviews as a substitute for any meaningful consideration process.
UPDATE ***APPEAL ALLOWED!!!!** In full with cost award of £140 (Tribunal Fee) to the Applicant, which the judge took up on his own initiative.
Update2 Apparently SSHD filed for permission to Appeal to the Upper Tribunal, in which HOPO drew extensive and winding grounds that can be summed up as “judge was wrong because he didn’t listen to her”. I assume this is some sort of diversionary tactic by HO to file hopeless PTA applications in order to frustrate post-decision relief. Three months on, we are still waiting for FTT to rule on permission!
Update3 **July 2018 ** Permission was refused in October 2017 — at least this is what was promulgated with a very strange permission decision, lacking a crucial page in which the conclusion stood to be drawn. However in December the fee award was paid to the client so we concluded HO accepts the decision. However there was no further implementation, and all my PAPs, calls, emails, including – crucially – to the SAT “determinations” team at Fleetbank house, as well as client MP enquiries, for the next 6 months were met with the zombie automatic stupidity responses in the vein of “your client just has to be patient” – SAR request confirmed the worst fears, whoever was dealing with this in the SAT team, entered permission result as GRANTED and the system thought that they were waiting for the UT listing. Clearly not the same people who paid my client the fee award!
By the time a year anniversary of the allowed appeal rolled by, the clients were insisting I contact the Guardian and sign up a barrister to sue for damages. I had barely persuaded them to give it a bit more wait until I go through complaints process – the last thing I could think of.
Eventually I was able to get to a live human with IQ over 70, but that was only after filing a complaint TWICE — first complaint was answered by the same Capita type people in the same moronic fashion — I had to apply for review of the complaint, which is the only situation in which it actually gets forwarded to HO staff who can read.
This was referred to one of the senior people on SAT team whose internal review concluded that an activist caseworker on the team had taken it upon themselves, after studying the existing pages of the cryptic permission decision, to conclude that the PTA judge must have meant to grant it. So he or she just changed it to granted on the system and did not think twice about the fact that indeed it was filed as REFUSED in the Tribunal so nothing was going to happen on it. Notably the admin personnel in the SAT team also did not engage on any level above moronic idiocy, while |I was sending emails etc. It was only the complaint that brought any light to this.
In the meantime KK was briefly detained in an immigration raid on his workplace and there was a lot of commotion around that.
The SAT team acknowledged that the whole thing was their fault, eventually, promised to immediately implement the FTT decision and agreed an ex-gratia payment of £1000 to the client in consideration of the delay incurred, the brief detention (it was only a couple of hours), and further costs of money they paid me to chase it up. they requested re-enrolment of biometrics – as it was now more than THREE YEARS since the application was filed! – which KK enroled and we were waiting for the Residence card.
So you can imagine our surprise when at the same time we get… a listing for the substantial hearing of the SSHD appeal in the UT!!! Apparently it was preceded by a corrected notice of the FTT PTA decision, dated cheerfully 8 months after it was refused and 14 months after the FTT allowed the appeal in the case, in which “refused” was changed to “granted” by hand and it was unintelligibly signed and stamped as “amended notice”. Except, the SAT team swears, it did not apply for that correction — then who did?
The very short notice UT hearing was to be on the 27th of July 2018, which I hopefully did not attend as I was just on my way back from California on that day. I armed myself with a copy of the letter the manager of the SAT team sent to the UT notifying them that they have conceded the appeal, it was being implemented and that he was begging the Tribunal to consider the SHHD appeal withdrawn under S17. I sent a letter of consent on our part. Neither of us heard from the UT in response. Meanwhile there was a lot of finger pointing as to whose actions actually caused the FTT to amend the decision notice all this time later and cause us all all this trouble.
The day before the mysterious hearing no one applied was was to take place, KK received a Residence card — 5 years and 9 months after his marriage, 4 years an 6 months after he lost the first “sham marriage” appeal, and and 3 years and 2 months after we made the latest application! As the curtain falls on my UK representation practice in favour of the UK-US transatlantic practice, one of my first cases ever becomes one of the last ones to be resolved.
Some mystery still remains though. He filled out the ex-gratia bank details form and still waiting for that £1000 though, and no one heard from the UT in response to the SSHD concession!
IL. Simple EEA case, but HO enforcement refused to stop illegally hounding and bullying applicant for months after COA.
This is a simple EEA Residence card application, where two very young people, my oldest daughter’s age, both of the same cultural background, got married. The marriage is thankfully not in question, but, lo and behold, his parents interfered. They decided that because the young man, who is an EU citizen, had only barely gotten his first job at the time, somehow this was not enough for the wife to apply for a Residence card (sheer nonsense, of course it was enough), so they suggested she should apply for ASYLUM instead, I kid you not. Asylum.
A very young woman already married to a working EU citizen is forced by evil in-laws to apply for ASYLUM. I never heard anything so bizarre, but it happened, and it nearly ruined the young woman’s life.
Somehow this application was hastily put together in such as way that the fact that she was indeed married to an EU citizen exercising treaty rights was entirely left out of it. I frankly think that this was the in-laws attempt to get rid of her, because there is no other rational explanation to a proposition that applying for asylum on these facts would ever be a good idea. But young people tend to listen to older people. So this happened, she applied, was rejected on fast-track and put on reporting. Then she came to me.
The RC application was not a problem, other than the young husband literally reporting his debit card stolen days after sending it, and second time getting postal order wrong, but eventually it was sent and registered. Meanwhile, the girl continued to report, despite me telling her not to go (because requiring her to report was illegal, and she had a legal right to live and work in the UK based on her marriage, period — HO even recognises as a matter of policy that this right exists). Young people do listen to older people, but threatening G4S employees in uniform told her she has to report, and nothing I said would persuade her otherwise. I have given her letters to Home Office and Reporting Centre, informing them of her status and requesting that reporting was canceled, and have written to EEA casework explaining the situation, but nothing of sorts was done.
Instead, she was hounded, literally laughed at by G4S reporting centre employees, she was, considering she was very young and vulnerable, terrified, stressed, constantly afraid — she was told that she has no rights, that she is illegal until she “gets a visa”, that she could be deported “any moment”. COA took TWO MONTHS to issue — but then , when she went there with COA — a document from The Home Office which confirms her RIGHT TO WORK, she was instead given — by the reporting centre — a document requiring her to immediately leave the UK or be deported within 7 days. Literally. The Home Office gave her this while she was holding in her hands a Certificate of an application with right to work as a family member of an EEA citizen. THIS is how our government respects the EU it so much wants you people to stay in.
The applicant was by then crying and afraid to go back to the RC, and thankfully next reporting date was after the Christmas holidays, when she was told she will most likely be detained. They told her her COA was meaningless because she had no case, and the letter she was given came “straight from her caseworker”.
Since the new document was technically a valid notice, we challenged it immediately with a PAP, and thankfully not everyone in Litigation was on holiday yet, so we immediately got an apology and reporting requirements were canceled. We also got an additional paper confirming that she was not required to leave the UK (clearly, even HO itself had no confidence that they own enforcement people will in fact leave her alone, so out of control they are!). HO however refused to apologise for behaviour of RC employees, or provide any retraining that would make them aware of EU rights.
It appears that nothing in their process is designed to make enforcement OR asylum caseworkers aware that an EEA application has been made. In fact according to HO, it was perfectly normal NOT TO expect EEA casework to bother with canceling reporting requirements — they expected ME to contact the Asylum caseworker to cancel reporting requirements. How would I have done that? I had no idea who it was, I did not represent her in the asylum application, do not know who did, and was not shown those files.
The RC application is now pending, inexplicably, well in excess of 6 months. UPDATE as of 20th June, the application is pending for 9 months, the longest ever in my practice. We initiated a second PAP yesterday.
UPDATE A second PAP response releaved that the residence card has indeed been issued on 13th June, basically 9 months (!) after the application. So, the war is won! But the battle is not over. The reason we never received the card or the paperwork is that ALL OF IT went to my OLD office, from which there is no longer any forwarding, and the HO being notified of change of address FIVE TIMES. We literally ought to get together and force some sort of sea change in HO#s COMPLETE inability to manage addresses. Every applicant to whom this happens thinks it’s an accident — but it isn’t. In my last office move it happened to virtually ALL cases, caseworkers do not give ANYthought at all to address status, and BRP/BRCs get sent almost automatically to the same address that was entered when biometrics was enrolled. This didn’t use to be so bad, but now it is, and ONLY in EEA Casework. This is a second BRC this month that has been sent to an address so old, my company has no longer any connection with it — and the first one DX actually claimed to have delievered there! In this case, I managed to obtain DX tracking number and, having given up arguing with HO BRC delivery people, the client and I have scheduled redelivery and are going to spend the day together lying in wait in reception area at Millennium BC, waiting for a DX courier to show up! ( I am sure management will be thrilled).
UPDATE After some negotiating with the management of our old office location, we had managed to retrieve the residence card from DX on the scheduled redelivery date! The rest of the poor young woman’s documents were, however, missing hopelessly, including the passport she had not by then, seen for two years. After about 6 weeks have passed since the approval date, I realised that it was not just down to the docs having made a round-trip with the Royal Mail to the old address — by this time, they’d have been already re-sent to the new one! In this case exceptionally, which I usually don’t do, I contacted some management-level HO employees and got them involved in looking for the file. It then, immediately, turned up within days — but when it did, some of the reason for the prior confusion became apparent. The approval letter was, once again, issued WITHOUT TOWN AND POSTCODE in the address. Wow.
NO. Non-EEA PR based on family member + retained right of residence, ex-spouse refuses to provide evidence
A simple case, where an EEA and non-EEA have been married for many years in the country of origin, have children together, and at one point in 2009-2010 together came to the UK, the wife got a Residence card, and they all have since worked in the same place, both he and her, and still do. There is no problem with the marriage, with length of marriage, with treaty rights, everything is very straightforward.
The couple divorced 3 years ago, which should be meaningless because the wife automatically retained right of residence, based both on length of residence and custody of EEA children.
Not so simple, apparently. Firstly, poor woman did not know about retained right of residence, and abusive ex-husband threatened to “throw her out of the country”, so she lived for 2 years underground, afraid of everything and entirely unaware of her 100% straightforward rights.
Meanwhile, she has completed 5 years in the UK – and because both of them have worked before, throughout and after the divorce in the same place, we knew there was no problem with ROR treaty rights requirement. I suggested a PR application based on combination of direct and retained residence rights.
But the ex-husband, now in a new relationship, refused to provide ANY evidence of work, including even to give permission for the mutual employer to provide a letter. Thankfully Barnet has absolved her from providing his original ID, but husband’s treaty rights remain an issue. After some historic legal disputes on this, HO has recognised that in ROR cases and upon the applicant detailing her efforts to obtain evidence, consideration should be given to requesting evidence form HMRC, so as not to enable abuse in some relationships to continue after the marriage. This of course does not work in all cases, but should work here, as the ex-sponsor is a continuous PAYE employee. As this is now covered directly in modernised caseworker guidance on ROR cases, we requested in our application that this enquiry be made, and referred to the guidance.
UPDATE Approval was received in May 2016, after almost 8 months. However we are thankful that Home Office acted correctly and professionally, even though not timely, in this sensitive case.
SS. AN reconsideration, turns out Tribunal appeal won on Immigration Rules was recorded as “human rights only” on CID.
The applicant is a former asylum seeker who had a fresh claim application pending since early 2000s or so, that was never decided.
He filed for 14-year ILR days before 9th July 2012, and was eventually rejected because HO said he had been served with IS151 at one point during all these years. Details around that service are blurry, and additionally, during the appeal, HO denied that a fresh claim application ever existed. Various other events took place in the interim, which had to do with a failed application to be recognised as an EEA dependant of his now-brother-in law, which was not seriously disputed.
But the applicant was, notably, very well represented in the ILR appeal, and determination was very favourable to him.
The judge found, among other things, that fresh claim application indeed was filed, that HO absolutely failed to take into account appeals pending on EEA claim and the fresh asylum claim, when issuing the liability to removal notice, and basically found that the applicant had not been liable to removal at the time he had been allegedly served, because he had every right to be here.
The determination explicitly said, that “The Appellant succeeds under the Immigration Rules”, by which he meant that the Applicant qualifies for 14-year ILR, because he cannot be said to have defied an IS151, because it was served on him at the time he was here legally.
Presumably this is in reference to the pending fresh claim creating a sort of old equivalent to what we now call “3C” leave, eg legal status
that will have continued all the way until ILR was granted. I actually somewhat disagree with that determination, although I have no idea what the law was at the time in 2000, which is what matters here. But importantly, the Tribunal made the decision, the applicant benefited, and SSHD did not appeal — so, what more to ask for? It is the HomeOffice that usually tells people that if they fail to further appeal, this means they accept the decision.
Additionally, HO’s own decried guidance here and there tells its employees, that “having leave” is a binary state, you wither have it or you don’t, and this, they claim, is always easy to tell. If thatis true, then taken together with FTT determination, the applicant indeed had leave at the time he was, as we now learn, illegally served with notice of liability to removal. Because if he had been in fact liable for removal, but fresh claim suspended that removal, this would not have been found. Plus, HO itself admitted it knew nothing of the fresh claim as it wasn’t on CID.
When the applicant filed AN, however, he was refused — NOT on character grounds, as some may suppose. No. They refused him on general requirements grounds, as they are now instructed to find that only legal residence counts towards a 5-year period. And the applicant, they say, was here illegally (this of course despite us actually sending them a copy of Appeal decision). At that point we stated reading SAR CID printout, and discovered that the appeal, for all its glory, was recorded as “On human right grounds only”, leading anyone to believe that indeed Tribunal agreed that he had been here illegally during the relevant time, and was simply given ILR out of compassion for good character and length of residence since early age. This now turns out to be a trend of possibly deliberately misrecorded appeal results, which I am now investigating.
UPDATE 7th August 2016. Apparently, our reconsideration request was successful. The client has been just granted British citizenship. the whole process from start to finish took about 18 months.
SA. Non-EEA family member denied PR and loses appeal, misses mother’s funeral overseas because HO won’t return passport, on exactly the same period of residence on which we ultimately get PR card issued, with mostly the same evidence.
This is one of those unlucky situations you get now and again, which go on for years, and it is very clear that everyone is here to stay, but very hard to achieve final documents, because EEA sponsor’s work life in the UK is long, weak and intermittent, and her record keeping skills are terrible, and she is also perhaps somewhat out to spite her husband, with whom marriage after many years is becoming problematic.
The applicant was a military doctor by training and has initially entered the UK on HSMP more than ten years ago, but soon thereafter met and married an EEA national. He held a residence card and they lived together, him working as a home carer for many years for the same company, pretty much his entire life in the UK, and caring for the same patients. The wife has worked too, but more intermittently, on, off, employment agencies, self employment (mostly cleaning and more cleaning), some babysitting. She had WRS even, so things weren’t that bad, but there were gaps. When, after 5 years of marriage, he applied for PR in 2012, he was refused due to a few months of a gap in evidence of employment — which he has, shortsightedly, decided to present as self-sufficiency. He relied on his own much steadier earnings at the time as source of funds, which was not (although could have been) picked up as a problem, however failed on sickness insurance, which he did not demonstrate.
He lost an appeal, again, on lack of health insurance, in which he was represented by the same lawyer as KK above. During this time, HO came down with full force of its illegal persecuting on him, in complete ignorance of his obvious and continuing EU rights (the gap was short and by then has ended), they retained his passports and won’t give them back, threatened him with removal, his mother died overseas and he was unable to visit her, or the funeral. This was complete, utter nonsensical cruelty.
This person’s entire life has been screwed with, he was treated cruelly, and all of this was entirely against EU law, but no one in the HO will ever answer for that. Nor will that adviser who represented him, but somehow gloriously failed to see that the wife, during the infamous “gap”, did not need self-sufficiency, as she actually retained worker status (having previously worked in the UK way more than a year) during new job search. The adviser later finally got him another 5-year residence card and told him to apply for PR in another 5 years.
The HO did not see that there was retained worker status during this period, the advisor did not see it, and FTT judge did not see it. The applicant did not know any better, the adviser was incompetent, and HO and FTT technically do not have to take initiative to look for arguments to help the applicant.
So, essentially, after he came to me and we re-gathered all the original evidence of the first 5 years, and presented it in light of retention of worker status during the period the applicant had previously been trying to describe as self-sufficiency, he received the PR — based on exactly the same, original period of residence.
Apparently, he has previously been around to see a number of lawyers and NO ONE told him that you can base your claim to PR based on ANY 5 years of past residence, not just the ones preceding the application.
Seriously? It is ALWAYS in the applicant’s best interest to claim PR on the earliest period possible for which a claim could have been made (in this particular case, more recent periods were out of question as the wife worked less, not more). No one cares how many years ago it ended!
This was also my first successful application filed as a letter, and not on that ridiculous tree-killer of a form. A form simply does not appear to accommodate a PR application based on long-past period of residence, not ending in present day.
UPDATE In August 2016 I represented the applicant in this case SA in a naturalisation application, and in November 2016 he became a British citizen.
PS. HO repeatedly tells EU family that EU citizen wife and kids cannot acquire PR as “family members”, and should exercise their own Treaty rights
This is a true story, folks — a bit over a year ago these wonderful people, a Portuguese family of 5 who I now consider my friends (they are all now British, so there is nothing else I can do for them professionally!), and who have lived in the UK for many years (their younger children having been born here), decided to apply for British citizenship, in light of then-brooding uncertainty over UK status in the EU.
The father, who had worked for 7 years as a waiter, nonetheless studied the law and got it down pretty well. He knew that (a) they could all apply directly to citizenship, which was then possible, (b) his wife will have acquired PR at the same time as him, as his family member, (b) the middle child, who was born in the UK before the time PR was acquired, will have to be registered by entitlement, (c) the youngest, born after 5 years, will apply directly for BC passport, and (d) the oldest, who came from Portugal with the parents initially, will be registered at discretion after parents naturalise, on premise that she has acquired PR at the same time as them. He was absolutely right on all counts (indeed he was the first and probably only client to ever walk into my office, who was right on everything — and, with him he somehow brought a printer cable, lack of which I lamented on Facebook that morning).
You won’t imagine, however, the barrage of bollocks he had received from NCS, the Home Office helpline, and several other people he went to, innocently trying to validate his absolutely correct conclusions. Ironically no one really disputed that he could apply directly to citizenship, which was by then well known. A different problem arose.
He was told, above all, that his wife and older daughter could not have possibly acquired PR at the same time as him, because they were also EU citizens. Family member route, he was told, was only for non-EEA family members, while EU citizens had to exercise Treaty Rights. “What about my 10-year old”! – he asked. “She should be self-sufficient, because you work”, they said, “but she will have needed health insurance”. Seriously? Someone actually thinks that Free Movement Directive intended to EXCLUDE EU citizen family members, so that each EU citizen could move around with a host of non-EU family members, but EU citizens would have to each sweat their own? Really?
This is the complete rubbish nonsense that shows how little effort everyone in this system actually makes to try to understand the origin and principles of EU law.
Needless to say, once that meeting with the printer cable took place, the plan was set in motion and actually worked very well and the whole family are now happily British.
Well, very well, unless you consider that someone actually photocopied and stamped as true copies 6 years worth of WEEKLY payslips (we had to keep the originals as they were the only guarantee of the baby’s direct passport application ;-).