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UKSolicitorJA
UKSolicitorJA, Solicitor
Category: Immigration Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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I am the spouse of an EEA national. we been married

Resolved Question:

I am the spouse of an EEA national. we been married for 7 years now(from may 2008). My EEA spouse has had PR (2010) and I was issued with an RC in 2010. it expires on November this year. I am self sufficient so his my husband who has been working full time since 2006. my husband left the UK four months ago(December 201). We have separated but not divorce. Can I apply for PR as a retained right? I don't want to wait till November so can I apply for it now? the only benefit I receive is working and child tax credit and child benefit. I work 35 hours a week which includes as an employee and self employed. on the application form do I have to state that I received these 3 benefits? also, do I have to put down my children name on the application form? they are not my husband's children.  my husband is prepared to send me all the supporting documents I need to support my application.

Secondly,  having lived here continuously for 10 years , I applied in April(2015) for ILR(long stay). my claim for long stay was a combination of being here legally as a student and then the family member of an EEA national. I attained 10 years continuous stay in September 2014. after making the application in February 2015 I was refused in April on the basis that, in 2008 when I applied for an EEA residence card it was refused( I wasn't aware it was refused what I know is that it took more than 1 year for the card to be issued) my then solicitor was so incompetent and he never informed me it was refused because he delayed in returning some documents they requested. Anyway, my card was subsequently issued in November 2010. but before I applied for the residence card, I have been married to my spouse 5 months before (may 2008). he was exercising treaty right and was a qualified person. I have never travelled abroad so have resided here continuously for 10 years so I don't think they should have refused me the PR (long stay) because even though my card was refused( although later given) that shouldn't be a break in my continuous stay because I was a family member of an EEA national, exercising treaty rights and we both lived here. I have not been given any rights of appeal because I still have the right to be here but I feel I should ask for a judicial review( I understand it cost a lot of money) . I have sent the case worker a reconsideration letter ( quoted the eea acts law, and directorate guidelines to use discretion with eea applicants applying for PR on long stay) but he hasn't replied. what do you think? should I just forget about it and just go ahead to apply for my PR based on basis of a retained right under eea route?

Submitted: 2 years ago.
Category: Immigration Law
Expert:  UKSolicitorJA replied 2 years ago.
Hello,
You are correct that your application should not have been refused on the basis that your original residence card application was refused.
The guidance says that discretion must be applied favourably in your case if you meet all requirements although EEA residence is not normally counted for long residence applications.
If you really wish to, I would suggest that you go ahead and apply for PR on the basis of having a retained right of residence as it only costs £65 and it may be quicker than having to go through the reconsideration process. However, you may wish to ring up the Home Office to see first what the status of your reconsideration application is.
May I help further?
Customer: replied 2 years ago.

What about the questions I asked about my EEA PR application?

Can I go ahead and apply even though my residence card expires in November?

Am I obliged to put down the names of my children?

What happens if I choose not to state that I receive the 3 benefits I mentioned?

I am self sufficient and my spouse has been since 2006.

He left in December 2014 but is willing to send me the documents for my application

Customer: replied 2 years ago.
Relist: Incomplete answer.
My first question wasn't answered.
Expert:  UKSolicitorJA replied 2 years ago.
You may apply now for your PR residence card, you do not need to wait until November
You may do so if they are also applying for PR status
You should list the benefits you receive as your application may be refused otherwise
Hope this helps. Please leave positive feedback
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