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ILR - mounting a legal challenge against the Home Office

Discussion in 'ENGLISH' started by dst, Jun 14, 2007.

  1. dst

    dst Member

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    From what I have read on this Forum I think there could be a strong basis for a legal challenge against the Home Office regarding its interpretation of time that counts towards ILR.

    You will know that you are required to be lawfully resident for a period of 5 years, but that in some circumstances the Home Office will not include time spend in the UK before 1 January 2007 as part of this. I think this largely affects self-employed people although other Forum members may be able to suggest similarly discriminated against

    I need 10-15 examples of people who are or think they will be affected by this. I think this means I am looking for people who are self-employed but did not extend their ECAA visa -
    This is a very serious request.

    Also I want to hear from anyone who has had their application for ILR turned down,
     
  2. freeeezzzzinnn

    freeeezzzzinnn New Member

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    DST may I ask what heppened to their changed view:

    http://www.ind.homeoffice.gov.uk/docume ... iew=Binary
    DEVELOPMENTS RESULTING FROM ACCESSION
    "Bulgaria and Romania joined the EU on 1 January 2007. Bulgarian and Romanian
    nationals may exercise their treaty right of self-employment and so do not need
    grants of leave under ECAA. The Agreements in any case lapsed upon accession.
    We have therefore deleted the immigration rules relating to leave to enter and limited
    leave to remain under ECAA, but we have retained those for indefinite leave to
    remain, to allow people who have been granted leave under ECAA to achieve
    settlement under domestic law should they wish to apply for it. They will otherwise
    be eligible for permanent residence under EU law if they exercise treaty rights for five
    years under the Accession Regulations. This document therefore deals only with
    applications for ILR.
    Applicants for ILR under ECAA need to have been granted initial leave in the
    category and then at least one extension of their leave. They do not need to obtain a
    second extension, even if their leave to remain expires before they have spent five
    years in the category. Time spent purely as a self-employed person under the
    Accession Regulations may therefore count towards the five years, but applicants
    must still"

    Is there any problems expirienced yet?
     
  3. che

    che New Member

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    what about people who worked as au-pairs? I know that now, after one year worked an au-pir can obtain blue card, however, I do not think that if you worked 2 years as an au-pair prior to 1 jnuary 07 will count at all, i do not think they will consider it as self-employed, or will they, sorry don't know. However, the whole sistem seems a bit useless, as there are faster ways to secure a work permit in the uk, than counting 5 years. And as we already have the right tolive here...why go for things such residency?can't really understand, i personally wouldn't. Why bother?
     
  4. ukok

    ukok New Member

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    Sfatuiesc pe toti cei veniti in UK inainte de 2007 ca self employed si care aveau intrebari si probleme cu obtinerea ILR sa-l contacteze pe DST URGENT. El este in masura sa va ajute avind relatiile necesare.
    Poate daca "admin" sau moderatorii cunosc astfel de persoane care nu mai sint prea active pe forum, poate ii pot contacta personal.
    Este o sansa unica ca cineva sa ofere asemenea sprijin.
     
  5. dst

    dst Member

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    anellores, you raise an interesting point. Where there is free movement, and in some instances the right to work freely, the ILR status is no longer particularly relevant. It will become even less so after full worker rights are extended to all Romanians. Arguably ILR is only worth pursuing if you wish to obtain British nationality.

    But there are some Romanians at least who had been present in the UK for, or approaching 5 years, prior to Romania's accession to the EU. The initial stance of the UK government had been to discount time spent. This would hit self-employed workers particularly. However, the UK does appear to have shifted its position on this matter - it was out of line with the practice elsewhere in the EU.

    If the ILR issue is still affecting some people, do get in contact.

    Your point about au-pairs is a slightly different case.

    The general rule is that if you have worked in the UK for a continuous period of one year, then you are able to apply for the status of being exempt from worker restrictions i.e. you are no longer tied to a particular job or employer, but have full and free access to the UK labour market. Romanians working under SBS would appear to be eligible for this as their work permit grants are for one year. Workers under SAWS would not be eligible.

    Aupairs are admitted under a separate scheme. It is not immediately obvious to me that spending one year as an aupair entitles one to general access to the UK labour market. The Labour attache at the Romanian Embassy would be best placed to answer this question. He can be contacted at social_affairs [a t] roemb.co.uk


    UKOK, I have send you a PM. You will have to explain your point to me in English. My Romanian is not of a high enough standard to understand your post
     
  6. claule07

    claule07 New Member

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    Hi There,

    DST has a very good point there, I was told that I can not obtain citizenship until only 5 year after Romania joined EU…luckily when I’ve started asking questions I still had 2 weeks left of my spouse visa and therefore I was still under the UK Emigration rules…therefore I just got my ILR 3 moths later.

    Question for you DST, as I see you are very knowledgeable in this matters.
    My brother is a self-employed bricklayer for over a year in UK, but he’ve hurt his back, and is very difficult for him to carry on in this position is he now eligible to work freely in UK as an employee? Or he must stay under the self employed status?

    Thanks a lot.
    Best regards,
    Claudia M
     
  7. Oana

    Oana New Member

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    Claudia statutul de self-employed nu ii da fratelui tau drept de munca nici dupa un an nici dupa 3 sau 4.Si eu sunt self-employed si iti spun sincer ca m-am interesat in fel si chip in domeniul asta.Doar dupa 5 ani va putea avea permanent residence si atunci implicit drept de munca (employee).
    Imi pare rau pt fratele tau,multa sanatate !!. -kiss- iss-
     
  8. claule07

    claule07 New Member

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    Mersi mult Oana.
     
  9. razvan1980

    razvan1980 New Member

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    thank you DST for raising this issue.

    I think it is going to be an insurmountable task to find 10-15 people who did not extend their visas. I found it hard to find 10-15 people who extended their visas and I got only 2 or three.

    It is an important point that should be tackled but practically it is going to be difficult to take people in such circumstances on board for a legal challenge.

    The good news is that the last wave of ECAA ILR will start soon and and we will have food for thought.

    Thanks for your help and support in our struggles with the mighty Home Office...
     
  10. che

    che New Member

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    Sorry, maybe I didn't get you right in the first instnce, are you actually looking for people who have been here as self-employed before 2007, their visa expired before they did anything about it, and they overstayed their visas and remained in UK ? If so, there may be hundreds of cases. But maybe I've missunderstood.
     
  11. dst

    dst Member

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    anellores

    There is only a small group of people that would be relevant here. If someone had overstayed a visa, then it would appear they are in breach of law. ILR requires 5 years of continuous legal stay in the UK. Being here 4 1/2 years legally, and 6 months illegally would not result in one qualifying for ILR.

    The issue, potentially open to legal challenge, was that some people - usually self-employed - were finding that although they had been here legally for a continuous period prior to 1 January 2007 were not having all this time counted by the Home Office as part of the 5 year ILR requirement.

    Of course, someone can stay in the UK indefinitely as self-employed, but what if you wanted to change your worker status?

    The position of the European Commission seems to be that time spent as a Romanian citizen in the UK + time spent as a Romanian EU citizen in the UK should all be added up. The UK does do this in most circumstances, but not all. There are a small number of people who did not meet an administrative requirement (an extended grant of leave under ECAA) and who are finding that time spent in the UK prior to 1 Jan 2007 is not counting toward the 5 years of ILR even if they have been here legally at all times.

    These are the people that could perhaps mount a legal challenge.
     
  12. che

    che New Member

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    Ok, I've got you now. But I knew that HO DOES take into consideration the period you have legally stayed in Uk as self-employed, previous to 07, don't they anymore???I mean you are the only one I hear they might not, as in other parts of the forum I have read about people applying for residency as they have just met the 5 years criteria? Anyway, I shouldn't perhaps enter the discussion as I am not directly involved.
     
  13. dst

    dst Member

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    As noted in my post, the general rule is that time spent in the UK prior to 1 Jan 2007 is taken into account by the HO in determining qualification for ILR.

    But there some people - those that did not apply for extended leave to remain under the pre 2007 rules (the ECAA rules) - who although here and working legally, have found that the UK discriminates against them. This is a small group of people, but for those that it affects, it is clearly a most important issue. The European Commission considers the UK is wrong to adopt the position it does, but the Commission can only offer an opinion, not an authoritative interpretation of EU law. Unless a Court judgement is made, the UK would be under no obligation to alter its administrative rule regarding this small group of people.

    But this does not affect the vast majority of Romanians. In most cases, time spent legally and continuously in the UK prior to 1 Jan 2007 will accrue toward the 5 year ILR requirement.
     
  14. axa

    axa New Member

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    What about people who came here with HSMP before 2007, got FLR before 2007, and are now thinking to ILR and naturalization. Are they affected?

    Regards,
    A.
     
  15. iancuflorian93

    iancuflorian93 Member

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    In aceeasi situatie sunt si eu ,am venit in uk, in 2005 ianuarie cu Work Permit ,am avut deja o extensie de 2 ani in decembrie 2007 ,acum ma pregatesc sa prelungesc pe inca 2 ani Work Permit (am obtinut in ianuarie 2007 si Blue Certificat) dar din ce stiu se vor lua in considerare cei 5 ani necesari pentru ILR daca nu ai schimbat statutul tau (acelasi angajator sau Work Permit)nu am folosit Blue pana acum ,din octombrie incep sa sun la Home Office (trebuie insistat mult pana ma lamuresc ,deoarece acolo daca suni de 10 ori primesti 10 raspunsuri )trebuie sa le pui cap la cap dupa aceea si vezi care dau majoritatea -sad4- ad4- ,mai este cineva in situatia asta?? -hello- ello-
     
  16. Anonymous

    Anonymous Guest


    Ce inseamna ' nu am folosit Blue pana acum'? Odata ce ai aplicat pentru el, esti in baza de date.Din cate stiu eu odata ce ai aplicat pt. Blue Card, numaratoarea incepe de la 0.Ai dreptate cu statutul, nu trebuie schimbat.Dar din moment ce tu ai blue deja ti-ai schimbat statutul.
     
  17. iancuflorian93

    iancuflorian93 Member

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    m-am interesat la home office si au spus ca atata timp cat sunt in Work Permit valabil si nu schimb angajatorul ca sa folosesc Blue Certificatul se iau in considerare pentru ILR ,
     
  18. axa

    axa New Member

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    Dar este valabil si la HSMP? Pentru ca la HSMP nu este nici o restrictie de angajator, pe viza scrie doar "no recourse to public funds"... atat. Am lucrat 3 ani la diverse firme si acum sunt self employed, de tranzitie, pana deschid eu o firma... Nu se poate spune ca mi-am schimbat statutul, nu?
     
  19. Anonymous

    Anonymous Guest

    Iti urez bafta, dar nu au ei de unde sa stie daca tu folosesti blue sau nu.In momentul in care folosesti blue, nu trebuie decat sa il arati angajatorului, actual sau nu.Si il primesti inapoi.Ei nu au de unde sa stie ce ai aratat tu.Nu ai fost intrebat de ce ai aplicat, daca nu aveai de gand sa il folosesti?
    In fine, asa cum iti spuneam, sper sa ai bafta.Dar cand aplici pt ILR trebuie sa specifici ce statut ai.Nu poti avea si drept restrictionat de munca (WP) si nerestrictionat (blue card) in acelasi timp.Ce vei completa pe alicatie??Asa cum iti spuneam , nu poti sa omiti blue cardul, pt ca esti in baza de date.
     
  20. iancuflorian93

    iancuflorian93 Member

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    ei spun ca trebuie sa faci dovada ca ai acelasi statut pe o perioada de 5 ani ,si eu cand aplic pot face dovada ca nu am schimbat angajatorul adica nu am folosit Blue Certificatul
     

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