# Unmarried Partner Visa Refused



## kiwi1982 (Jul 20, 2012)

I have just received information from my immigration consultancy that my Unmarried Partner Visa was refused.

The reason was the application was made within the UK outside of my Youth Mobility Scheme Visa expiring. This is true as my Immigration Consultant sent an old form through to the Home Office which was rejected and then we had to reapply (at which point my YMS Visa had expired). 

My immigration consultancy is going to write a letter ASAP to the case worker who sent my application back. They think he/she may have just looked straight at my visa dates and rejected the application. 

I guess I have two questions:

Is it likely the Home Office will consider that this application was submitted due to an error by the immigration firm I used and hence not use the fact my UK application was made outside of my YMS expiring?

Secondly if the Home Office up hold their decision would both my girlfriend and I both need to return to NZ to apply in person? Or could I go down and she could continue working here while I sort it out with the consulate in the NZ


----------



## Joppa (Sep 7, 2009)

kiwi1982 said:


> I have just received information from my immigration consultancy that my Unmarried Partner Visa was refused.
> 
> The reason was the application was made within the UK outside of my Youth Mobility Scheme Visa expiring. This is true as my Immigration Consultant sent an old form through to the Home Office which was rejected and then we had to reapply (at which point my YMS Visa had expired).
> 
> My immigration consultancy is going to write a letter ASAP to the case worker who sent my application back. They think he/she may have just looked straight at my visa dates and rejected the application.





> Is it likely the Home Office will consider that this application was submitted due to an error by the immigration firm I used and hence not use the fact my UK application was made outside of my YMS expiring?


Regardless of who actually submitted your application, you are responsible for ensuring that the right form is sent within the validity of your existing Tier 5 YMS. So the answer is no. You can complain about the incompetence of your immigration firm and sue them for damages.



> Secondly if the Home Office uphold their decision, would both my girlfriend and I both need to return to NZ to apply in person? Or could I go down and she could continue working here while I sort it out with the consulate in the NZ


Your partner is a British citizen or settled in UK, right? Then only you need to return home and apply from there. You will have to make a fresh application, and pay again.


----------



## kiwi1982 (Jul 20, 2012)

Thanks Joppa 

You're always very helpful.

I figure my immigration consultancy contacting the Home Office is going to be fruitless although I remain mildly optimisitic.

With regard to the second question - my partner is an Irish (Republic) national. Well she holds an NZ and Irish passport and has been living and working in the UK for 3 years now. Does this essentially mean she comes under the same banner as British Citizen and therefore she could continue working while I went back and re-applied.

Would I need to take her passport with me also? 
Are you familiar with whether New Zealand offers the premium service or would I need to do a postal application from down there also?

Regards


----------



## Joppa (Sep 7, 2009)

kiwi1982 said:


> Thanks Joppa
> 
> You're always very helpful.
> 
> I figure my immigration consultancy contacting the Home Office is going to be fruitless although I remain mildly optimisitic.





> With regard to the second question - my partner is an Irish (Republic) national. Well she holds an NZ and Irish passport and has been living and working in the UK for 3 years now. Does this essentially mean she comes under the same banner as British Citizen and therefore she could continue working while I went back and re-applied.


I see. That changes everything. Presumably your legal firm sent an application for FLR as spouse, when it should have been for residence card as partner of an EU citizen (Irish) on EEA2. While Irish citizens have complete freedom to live and work in UK (and _vice versa _for British citizens in Ireland), for EU purposes, she should have lived in UK for 5 years to be regarded as settled in order for you to apply on FLR(M). Being an unmarried partner puts you in a slightly weaker position _vis-a-vis _UKBA, but a family member of an EU citizen exercising treaty rights in UK has the right to live in UK under EU rules. So maybe a representation on your behalf by your legal rep may yield result. But the fact they received your correct application after your visa has expired may have put paid to your chances. Just ask them they were applying for residence card under EU rules and not FLR(M) under UK immigration law.



> Would I need to take her passport with me also?
> Are you familiar with whether New Zealand offers the premium service or would I need to do a postal application from down there also?


Remember you are now applying for EEA family permit to be allowed to enter UK as family member of an EU citizen. See UK Border Agency | EEA family permits. There are no fees. You don't have to apply in NZ, and application can be submitted at any British diplomatic post outside UK. But it isn't just a question of popping over the Channel for a few days. According to the procedure in force in any country, it may take a week or more for your application to be processed, and often only postal application is available, making it awkward if you are staying in a hotel. So maybe going home and applying in NZ may be a better idea, as you can use your parental address or another relative's to send and receive your documents. You will need an endorsed or certified copy of her passport, which she should obtain from the Irish consulate in UK. 
For NZ, as all applications are sent to Manila for processing, there is no premium or priority service.


----------



## kiwi1982 (Jul 20, 2012)

Hi Joppa 

Here is the general outline of the refusal and how the immigration consultancy plan to seek reconsideration: 


_The Secretary of State for the Home Department (SSHD) refused the application as she was not satisfied that the applicant had leave to enter or remain at the time of the application and as a result, failed to fulfil E-LTRP.2.2 of Appendix FM of the Immigration Rules. The SSHD refers to no other provision of the Immigration Rules in respect of the application under paragraph 286. It is respectfully submitted that the SSHD has erred in this respect. 

E-LTRP.2.2. of Appendix FM states the following:

The applicant must not be in the UK in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX. . applies.

It is respectfully submitted that the applicant has not been in breach of immigration laws. The applicant is in a durable relationship with an EEA national, and therefore has a right to reside in the UK under Regulation 8(5) of the Immigration (European Economic Area) Regulations 2006. The SSHD was in possession of the applicant’s partner’ Irish passport and was satisfied that the applicant was in a durable relationship with the EEA national. The application should therefore not have been refused under E-LTRP.2.2. As there were no other grounds of refusal in respect of the application made under the Immigration Rules, further leave to remain should have been granted.

2.	The applicant should have been issued with a residence card under the EEA Regulations

It is also submitted that it is erroneous to suggest that the applicant no longer has any known basis of stay in the United Kingdom. As mentioned, the applicant has a right of residence under the Immigration (EEA) Regulations 2006. Please note that there is no requirement that an application form be submitted. The SSHD therefore had all the necessary documentation to be in a position to issue the applicant with confirmation of his right to reside under the Regulations and has failed to do so. If the SSHD was not satisfied that the applicant met the Immigration Rules, a residence card should have been granted in the alternative_


----------



## Joppa (Sep 7, 2009)

kiwi1982 said:


> Hi Joppa
> 
> Here is the general outline of the refusal and how the immigration consultancy plan to seek reconsideration:
> 
> ...


Some muddled thinking in trying to cover up the immigration advisor's own mistakes.
They (you) should not have applied for spouse visa under UK immigration rules, as your partner isn't considered 'settled' in UK (less than 5 years' residence). Your original application should have been for residence card under Immigration (EEA) regulations 2006, on form EEA2. They (the firm) cannot accuse UKBA of not switching the application from spouse to residence card, as it's not their job, and wrong form and application have been submitted. So you were correctly turned down.


----------



## kiwi1982 (Jul 20, 2012)

Joppa said:


> Some muddled thinking in trying to cover up the immigration advisor's own mistakes.
> They (you) should not have applied for spouse visa under UK immigration rules, as your partner isn't considered 'settled' in UK (less than 5 years' residence). Your original application should have been for residence card under Immigration (EEA) regulations 2006, on form EEA2. They (the firm) cannot accuse UKBA of not switching the application from spouse to residence card, as it's not their job, and wrong form and application have been submitted. So you were correctly turned down.


So in order to re-apply I need to leave the country and apply for a residence card using an EEA2 form?

Could I apply for this from France?


----------



## Joppa (Sep 7, 2009)

kiwi1982 said:


> So in order to re-apply I need to leave the country and apply for a residence card using an EEA2 form?
> 
> Could I apply for this from France?


This is a grey area.
You could claim you are now here under EU rules as family member of an EU citzien exercising treaty rights, and apply on EEA2.
Or leave UK (as your Tier 5 has expired) and apply for EEA family permit (you cannot apply for residence card from abroad). France is a possibility, but it's usually not so straightward as you may have to make postal application and wait for your permit to be returned by post, while you stay at a hotel, for example. Find out on UK Border Agency | France how you apply in France.


----------

