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Negotiating the hostile environment - a route to permanent residence

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Negotiating the ‘hostile environment’: one non-EEA family member's route to permanent residence

In many cases, family members of nationals of states in the European Economic Area (‘EEA’) can enjoy a simplified route to permanent residence in the UK.  However, their rights depend very closely on their EEA partner, and they are particularly vulnerable in cases of relationship breakdown.

Read on to find out how we dealt with a recent and challenging case:

Our client had applied for confirmation of permanent residence (‘PR’) based on 5 years' residence in the UK with his French wife, but his application and appeal were refused.  The requirement for a person in his position would be to show a continuous 5-year period during which he and his wife were married and living in the UK, and that she was ‘exercising treaty rights’ (for example, she was working or self-employed) during that time.  His problem was that having separated from his wife in 2008, and subsequently divorced, he did not have access to evidence of her employment history.  His ex-wife refused to co-operate with him in any way.

Our client was immediately thrown into a situation where he could not prove he had a right to live and work in the UK.  The family courts also refused to order contact with his sons, because his residence status was considered precarious.

We assisted our client on a number of fronts:

  1. Our solicitors immediately made a new application for confirmation of permanent residence, with a note that fresh evidence would be forthcoming.
  1. We used available public records to locate our client's ex-wife and provide evidence that she was living in the UK at the relevant times.  However, she still refused to provide any other evidence to support his case.
  1. We identified the fact that his ex was highly likely to have indefinite leave to remain (‘ILR’) in the UK. Before a change in the regulations in 2006, Europeans who had been exercising free movement rights in the UK for the required period used to apply for ILR instead of automatically acquiring permanent residence.  However, their ILR should be treated in the same way as PR in applications made by their family members. This was a crucial fact because it would mean our client no longer had to establish that his wife was working in the UK during the time he lived here with her.
  1. We identified the Home Office's policy relating to European cases where a relationship has broken down.  In some cases the Home Office will request work history information from HMRC to prove a European family member's exercise of treaty rights.  The policy did not match our client's situation exactly, and we argued that it should be applied by analogy. Although the application was initially refused, we appealed and continued to make further representations.  This led to the decision being withdrawn while the Home Office made further enquiries.
  1. Our client was finally provided with confirmation of his right of permanent residence at the end of November, 30 months after we made his application, and over four and a half years after he had actually acquired that right.

There are valuable lessons to be drawn from the case, and one of the most important is that persistence in dealing with the Home Office and Tribunal is vital!  The policy that directs the Home Office to request HMRC records must be drawn to the attention of caseworkers and the Tribunal, as it is often ignored.  It is also worth pointing out that the Data Protection Act does allow enquiries to be made about third parties in cases where a person's rights are in question.

It is also very important to understand the full immigration history of both spouses in a case like this. Where the European partner had PR for all or part of the period relied on, this can cut the evidential burden significantly.  In our client's case, the fact that European applicants used to apply for ILR meant that the Home Office’s own records already contained the evidence they needed.

Our client also had great difficulty in related contact proceedings in the family court.  Family representatives in these situations should very strongly resist attempts by the court to require ‘proof of immigration status’ as a precondition of contact.  The courts must be provided with complete information about the European system of residence rights, so that non-cooperation by the European partner cannot be used to hinder a proper consideration of the case.

Although rights derived under European law are stronger in many ways that permission granted under domestic Immigration Rules, the drive to create a ‘hostile environment’ has created a situation that places non-EEA family members at a great disadvantage.  European residence documents have for a long time been optional, and there is still no legal requirement to apply for them. However, with the advent of laws requiring employers, landlords, universities and hospitals to check immigration status, the possession of residence papers has become a necessity.  The application process for European status documents often takes 6 months; may require evidence going back a number of years, and sometimes provides no interim proof of rights.

It is worth pointing out that if the new “right to rent” provisions of the Immigration Act 2014 had applied while his case was being resolved, it would also have been almost impossible for our client to find anywhere to live until he could produce his PR card.

Our client is now considering whether to make a claim against the Home Office.

If you have a question about European residence documents and proving a right of residence, please contact Kitty Falls, solicitors in the Immigration team.