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Help, interpretare mail HO re ILR

Discussion in 'ARHIVA' started by motanik, Jun 11, 2007.

  1. dst

    dst Member

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    I think in part this is for my benefit.

    Amongst other things I am working to coordinate a legal challenge on the Home Office interpretation of the 5 years needed to qualify for ILR.

    So far, only 3 people have passed their details to me however. We need about 15 people to give us the most options in making a challenge.


    CristianS, I do not believe writing to the Home Office will be especially valuable. They believe they are interpreting the Directive in a correct manner, and the view expressed by the Commission in their letter is non-binding.

    Only a Court can rule on this matter.

    I am sure the Romanian Embassy is also aware of the issue.

    I'd also warn against knee-jerk action. Yes, I am sure you all want to do something to change this. but it is better to approach this in a strategic manner, and to apply pressure through a coordinated multi-channel response.
     
  2. lilac

    lilac New Member

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    i received the same letter from Brussels.according to them we can apply for ilr after 5 years legally spent in uk.the thing is i could not find an application form on ho website.
     
  3. motanik

    motanik New Member

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  4. dst

    dst Member

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    Yes, you can apply for ILR after 5 years, but this does not mean it will be granted. How the UK counts the 5 years is the central point here - and this may differ from how the EU believe it should be interpreted.

    There are some people who it seems will not be able to include time counted before 1 January 2007 as part of their 5 years in the UK. My understanding of the Home Office position is that they are discounting time spent on an ECAA visa UNLESS this visa was extended past 1 January 2007.

    The letter from a Commission official is NOT a binding statement of law. Only a Court can provide this authoritative interpretation of the law.

    The point here is that the British government consider they are justified in how they recognise time counting toward the 5 years of ILR. The Commission may disagree with this, but this in itself is not sufficient to force a change.

    The most effective way to change this is to challenge it - take the UK government to Court. To do this, we need test cases, and for several weeks I have been looking for these.

    So if people have applied or are thinking about applying now for ILR it would be very useful if they could let me know. I will highlight these cases with lawyers who are looking to challenge the UK government on precisely this issue.

    Only some people will be affected by the UK position on ILR - as a general rule 5 years is what you need - but from what I have read here there are a few active posters that might lose out. There will be others than dont post on this board.

    To take this forward I will need to hear more about the individual circumstances of people so do please PM me or email at romanianevent [at] googlemail.com.

    Nothing I am doing has a cost. When legal action is taken this will be where fees are incurred, but we hope this can be funded by the Romanian community collectively, or divided across the many individuals that will benefit from a challenge. You are under no obligation by coming forward.
     
  5. freeeezzzzinnn

    freeeezzzzinnn New Member

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    http://www.ind.homeoffice.gov.uk/docume ... iew=Binary

    March/2007 IMMIGRATION DIRECTORATES' INSTRUCTIONS
    CHAPTER 6 SECTION 2
    PERSONS INTENDING TO ESTABLISH THEMSELVES
    IN BUSINESS UNDER THE PROVISIONS
    OF EC ASSOCIATION AGREEMENTS – APPLICATIONS FOR INDEFINITE LEAVE
    TO REMAIN


    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"


    "Applicants for ILR under ECAA need to have been granted initial leave in the category and then at least one extension of their leave."
    (1+3 years)

    "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."
    (nothing or certificate (EEA 2006 (Directive 2004/38), still self-employed)

    "Time spent purely as a self-employed person under the Accession Regulations may therefore count towards the five years"
    (1+3 years) + (nothing or certificate (EEA 2006 (Directive 2004/38), still self-employed) =5 years = ILR under ECAA



    SIGNPOST SERVICE - Answer to the enquiry 34827
    Reply
    It is true that Article 16 of Directive 2004/38 only applies to EU citizens. Bulgaria, however, signed a Europe Association Agreement with the EU in March 1993. The question arises as to whether this agreement has direct effect (ie., whether it can be relied upon by individuals in the member states of the EU). There is a line of case-law which suggests that the provisions of such agreements concerning freedom of establishment may be directly effective (Case C-63/99: Gloszczuk; Case C-257/99: Barkoci and Malik: Case C-235/99: Kondova; and Case C-268/99: Jany). The question is what effect such direct effect may have on the grant of permanent residence status. The suggestion may be that a citizen from e.g., Bulgaria, who has exercised his/her right of establishment in the UK since the entry into force of the Europe Agreement may already qualify. However, the Europe Agreement pre-dates Directive 2004/38, which grants permanent residence, and it is unlikely that this Directive has retrospective effect. It may be possible, using a combination of the Directive and the Europe Agreement, to claim that the time for your permanent residence should start as of the entry into force of the Directive, which would mean that the 5 years would expire somewhat sooner.

    This is, however, a moot point, and it would, if necessary, be advisable to obtain specialist legal advice on this issue.


    Guys what else do you need for people with ECAA status?
    Those with Work Permits Will suffer nobody else.
    Still those with work permit have right to work, but this is not in their favour and is not transferable to other states.
    HO has given you this combination..."Time spent purely as a self-employed person under the
    Accession Regulations may therefore count towards the five years,"
    HO doesn’t want to be challenged in ECJ therefore they have changed their internal guides, What else do you need print the document send it back to and ask them what is written in the document and why anybody who is working in HO have not been informed about their own internal Guides.
    Where is the problem here? Either I can't read or you guys don't want to see it.
     
  6. razvan1980

    razvan1980 New Member

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    thank you all for your contribution about the ILR issue. Unfortunately there are not enough people who put themselves up for a possible legal challenge. We need more people who have been in the UK for five years and exercised a "treaty right"- employee, self-employed, student. we need to challenge the HO interpretation of the directive before ECJ. to be able to do that we need strong evidence. please come forward if you have lived and worked legally in the UK for 5 years.

    lilac there is no application form on the HO website because the HO does not recognise such a status. we have to go before the court to challenge this interpretation.

    It seems that the European Commission will contact the UK authorities to put pressure on them to change their stance on permanent residence under EU law. please send your details to DST. we need mor e people who have an interest in the ILR issue. thank you
     

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