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Thomas
Thomas, Solicitor
Category: UK Immigration Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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Hi, My permament residence card as a spouse of European

Resolved Question:

Hi,

My permament residence card as a spouse of European Union citizen (Belgian) has been refused.

We are still in shock of their decision as we thought we matched all the requirement. I arrived in UK in Sep 2003 as a student and graducate on June 2005. We got to know each other in 2004 as we were in the same University. I have been employed after my graduation and was on my own valid visa before Dec 2007. We got married on July 2007, so before my previous valid visa run out, I applied a residence card as a spouse of European union citizen who exerice his treaty right here. I was granted a 5 years residence card with the expired date of Dec 17,2012.
Before my previous residence card expired on Dec 2012, we decided to apply a permanent residence card based on below facts on Oct 2012:He was a PHD student between April 01,2004 - Sep 2009, during this period, he had a full sponsored scholar ship to cover all his expense. He was writing up his thesis and looking for a job during Sep 2009 to Aril 07, 2010, during this period, although he registered himself as a job seeker for a short period but didn't apply any benefits as I always have a full time professional job to cover all the expense as a family. He got a permanent job in Heriot watt university in April 2010.
We thought we matched all the requirement as both of us has been there for a relatively long time and I am always working after my study and he exerices his treaty rights here and we never claimed any benefits, we have been together since 2004 and got married in 2007, our daughter was born on Nov 10,2008.
The reson they refused me is mainly due to the insufficient documents we provided. As per the guildline of the application form, we provided as much documents as possible to the best of our knowledge like the bank statement, employment letter from both his employer and mine, unitility bills, mortage statement,etc. However, they think we were missing the documents like P60, sickness insurance which we have them all but due to the unclear guildeline we thought it's not necessary to provide them at the time we submitted our application.
Now they retained my passport and require me to leave the coutry ASAP before they force the deport. My questions are:
1, Do they have the legal right to deport me as I am a spouse of European Union CITIZEN who exerice his treaty right here? Also it is against human rights to deport me as I am a mother of a young child?
2, If I decided to appeal, what's my chance as they may argue although I have had all the documents they required for a pemanent residence card holder but I didn't provide enough evidence when we submitted our application.
3, If I decided to re apply a residence card rather than a permanet residence card, does it automatically override my appealing right?
4, What's the impact on my current employment?

Kind regards.
Ping
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

If you have not submitted complete documentation that was material to the application then the UKBA are entitled to reject the application on this basis.

In answer to your specific questions
1.There is practically zero chance of you getting deported provided that you remain married to your EEA husband and he remains in the UK. Additionally the fact that you have a child further reinforces your right to stay here.

EEA rights are a little different to rights under visas. Your legal right to remain and work in the UK stems from the fact that you are married to your husband. It continues whilst you are married and technically there is no requirement to even apply for a residence card (although there are practical reasons why you should).

This is different to spouses of UK nationals or other national who have indefinite leave to remain because there right to remain comes directly from whether or not the UKBA have given them leave to remain in their passport.

There is practically zero chance of you getting deported whilst your spouse is in the UK exercising treaty rights.

2If you have been granted a right of appeal then although you can do so it would probably be quicker and cheaper to simply submit a new application with all the documents. Appeals take a long time, require instructing counsel and you may only rely on evidence that was actually in existence at the time of the initial application.

3, If you are confident that the you now have all the documents that were initially omitted and which formed the basis of the rejection then I would simply apply for PR again for the above reasons. You need the documents for the PR application and so you would have to submit them with that application, so you would not have the originals to submit a further application for a residence card and quite frankly submitting two applications would simply confuse the UKBA and drag the whole thing out even longer.

4. Your right to work stems from the fact that you are married. It has not been altered because you were refused PR. Your right to work remains regardless of the rejection.


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Kind regards,


Tom
Thomas, Solicitor
Satisfied Customers: 6445
Experience: BA (Hons), PgDip, Practising Solicitor
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