EEA Permanent Residence – Retained Rights – Successful Appeal
Our client had instructed us in order to help him with his EEA Permanent Residence on the basis of his residence in the UK under the Surinder Singh Route.
- Entered the UK under the Surinder Singh Route;
- Divorce initiated after 3 years of marriage and over 1 year of living together in the UK;
- Permanent Residence Applied on the basis of 5 years residence in the UK which included a period of residence under Retained Rights;
- Application Rejected because former Spouse’s Passport was not provided;
- Application submitted again and then Refused because of the same reason – no passport for spouse;
- Appeal won on the grounds below.
After filing his application the Home Office rejected the application on the basis that we had not provided the Sponsor’s Original Passport, although it had been declared on the cover letter that the passport was unavailable due to the divorce which the couple had gone through.
After filing the application again the Home Office accepted the application but went onto refuse the Permanent Residence on the basis that our client could not provide his former EEA Spouse’s Form of ID. So on this occasion we were given a right of appeal which was exercised.
The appeal was won for our client following our submissions whilst relying on the case of Barnett and others (EEA Regulations: rights and documentation)  UKUT 00142 (IAC), in which the headnote states:
(1) In applications under the Immigration (European Economic Area) Regulations 2006, care must be taken to identify both the relevant rights being asserted and the relevant documentary confirmation which is being sought in respect of those rights.
(2) The requirement in regulation 17(1)(a) and (2)(a) for the production of a valid passport relates to the passport of the applicant, not the EEA national.
(3) The “proof” that the Secretary of State can lawfully require in applications under regulations 17 and 18 in order to entitle a non EEA national to a residence card (regulation 17) or a permanent residence card (regulation 18) may, nevertheless, depending on the circumstances, entail the production of the passport or other identity document of an EEA national; but it is unlawful to refuse applications merely because such documentation is not forthcoming. The Secretary of State needs to show a valid reason why it is required.
(4) This is particularly so in the case of regulation 18, given that there is likely to be relevant material relating to such documentation on file from a previous, successful, application.
Fortunately for our client the Immigration Judge of the First-tier Tribunal accepted our arguments and allowed our client’s appeal.
The Application and the Appeal was based on the provisions of The Immigration (European Economic Area) Regulations 2016.
Our client was shortly afterwards granted his Permanent Residence and is now continuing with his life in the UK which had become so difficult due to his ex-wife.
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