EEA Family Permit application refused

Hello everyone

My wife made an application for a Family Permit last Thursday in Shanghai.

She just received a phone call from (I assume) the embassy stating that because i was already working in the UK She was not intitled to apply for a FP. That she needs to apply for either a visitor visa or long term settlement becuse I am already in the UK.
She is travelling now but will go into the visa application centre on thursday.

My back ground
British
Worked in Germany since 2003
Married may 2012
Wife joined me in Germany was fully registered and has/had a full residency card for 5 years

I took a job in the UK starting 8 Sept
She traveled with me to UK overnight 5 Sept and entered using the German Residency Card
She departed in October due to family reasons and in presently in China
Flight tickets are for middle of December

As the application was close to the 3 month period I wrote a covering letter and gave documentry proof of:
1. employment in Germany, proof of registration etc
2. Payslips and contracts for UK starting 8 Sept, utility bill in both nmes

I am on a 12 month contract, I use an umbrella company to handly my PAYE, the person said something along the lines that I was not entitled as I was using an umbrella company?? and that they also had a CN wife and was not allowed to use the FP

Wife clearly stated that I worked in Germany prior to coming and that she lived with me

Has the law changed, I understood I am fully within the rules to have my wife join me

Any suggestions greatly appreciated

Pete

What is the sense for the family permit.
As far as I understand the rules the Aufenthaltskarte-EU from germany is still valid.

I think you are correct. Regulation 9 is applicable. I think that you don't even need to be employed in the UK (Eind). Why would using an umbrella company matter?

What did they mean by 'a CN wife and was not allowed to use the FP'?

Another silly refusal?

Have she booked her travel already? Maybe flying via Germany to avoid the nonsense.

Thank you all for you comments
It was written very quickly before I left for work, I am now home to review the application for a Family visit. It seems she will have to pay before she can view appointments.

Regarding the comments
Yes Flight tickets Shanghai to uk (via Amsterdam) have been booked
My understanding was that she could not use the German residency card to enter the UK alone, hence the FP application
Why would using an umbrella company matters?
What did they mean by 'a CN wife and was not allowed to use the FP'?
I can only assume that he has considered that my working time in Germany was with the Umbrella company, the comment about wife was made by him. i.e. because he has a CN wife and he cannot use the FP option. I am wondering if I should write and ask for a reconsideration?
Presently it looks like She has to re-apply and will not get a refusal for the FP (this was hinted at, I await the full conversation) hence no appeal against the original FP application

I would be willing to travel to Amsterdam and pick her up if it was considered that the residency card was still valid and could be legally used. If this was the case I believe she would need to formally request the return of the passport and have a refusal entered.
What options are available to us if we then tried t enter especially if we appealed againt the refusal of the FP?

Pete

His is word for word what my wife remembers:

I got a call at 14:48 CN time this afternon, first it was a woman talked to me, she checked my name and my basic details first then asked me does your husband currently work in the UK, I said yes, then she said if your husband currrently work in the UK or he is a Biritish cityzen then I have no rights to appy an EEA FP, I asked what kind of visa then I can apply, she said we don't normally recommend applicants which kind of visa to apply but for my issue she said if you are going to live in the UK for longterm, you can apply longterm visa, she checked when I go to back to the UK and when I will come to China, I told the truth as the ticket is the partical documents in their hand, she said then you can apply visit visa which is valid for 6 months, I said I live in the UK after we moved from Germany but I come back to China now and then because I have a son here I need to come back to see him every so oftern, she said long term or 6 months visit visa are the only 2 options I can choose, I said what is the situation of my visa application, have I got rejected or what, what is the status, she said because I have very good experience for all my visits shown in my passport so the officer did not like to stamp anything bad in my passport that is why they call, I said the tickets are paid and if I apply another one time will not be enough, I said is there anything I can do to shorten the process to get the vsia before my travel date, she said I still have to go from the very beginning for all the processes. she said you can apply a new visa now and submit ASAP, I said I am not in Shanghai, I am in "City," "City province", then she gave the phone to a guy.

He told me he is the visa officer for my application, due to you are now working in the UK I have no rights to apply a EEA FP visa, he said he has got a wife from outside his own country UK, and he could neve applied an EEA FP for his wife either, I said well I am not quite sure for lots of your laws and regulations but my husband he knows everythng, is it possible he can give me his office number or whatever valid contact information, I said I can ask you to contact him at no time, he clearly said he has tried to give all the information to me and he did, he said there is no necessary to talk to anybody rather than the applicant itself. so I said is there any chance he can put my case as an enmergency as there is not enough time for applying a new visa, he said I can apply the right visa on line, this does not require a passport, then make an appointment, he checked when I will fly, he said time still enough, so I can can you mark in my application not let them post back my documentation because there is no points for doing that, I said as soon as I get back to Shanghai I will go to the visa center and submit the new form, I did mention we just came back from Germany and you just took the new job, as everything in the form.

I removed the City and proverence name

Petem wrote:
My understanding was that she could not use the German residency card to enter the UK alone, hence the FP application

You are waiting for her in the UK. Therefore the card is valid as visa exemption.

Hi everyone

I have put a request to UKVI as a reconsideration, also contacted Solvit although to be honest I don't see them doing anything before she is due to travel.

Can anyone answer me regarding the German Residency Card, is she legally allowed to use it now that I have left Germany? My understanding is no.

But if yes I believe she cannot use it to enter the UK alone, i.e. i would need to accompany her, is this correct?

For the moment we seem to have little option but to try for the visitors visa and hope they do process it in time and deal with the refusal later.

Thanks for your time
Pete

mgb wrote:

Petem wrote:
My understanding was that she could not use the German residency card to enter the UK alone, hence the FP application

You are waiting for her in the UK. Therefore the card is valid as visa exemption.

Hi mgb
Sorry did not refresh and see this till I already asked the question, where does it say this as i understood UK only accepted the German residency card as visa exempt when travelling with me. The same as an EEA spouse travelling to Europe?

I appreciate your help
Thanks
Pete

The rule is join or accompany. Independently if a visa is used or a visa exemption.
You could pick her up at the uk airport if you want to be on the safe side.

Hello

In the mean time I sent a reconsideration to to them, this is the reply:
Thank you for your below complaint. I have been asked to look into the matter and respond to you.

I have reviewed your wife's application for an EEA family permit, and am satisfied that the actions taken on her case were correct.

Guidance on our website (https://www.gov.uk/family-permit) states:
You can apply for an EEA family permit to accompany your family or partner to the UK (or join them after they've arrived) if:
- the person you'll be accompanying or joining is from the European Economic Area (EEA) but not the UK
- you're from outside the EEA

The Surinder Singh judgment was implemented into the 2006 Regulations by way of regulation 9. The requirement at regulation 9(2)(c) and 9(3) requires the British citizen to have transferred the centre of their life to another EEA member state, where they resided as a worker or self-employed person with their spouse or civil partner before returning to the UK. Full details can be found on: https://www.gov.uk/government/uploads/s ... dacted.pdf

I note that your wife was previously issued an EEA family permit, under the Surinder Singh judgement, as you were residing in Germany at the time and exercising your treaty rights.
In her current application, your wife confirmed that you are a British citizen and that you have returned to the UK to live and work. You are therefore no longer exercising your treaty rights. She therefore does not qualify for an EEA family permit.

Rather than refusing the application, the Entry Clearance Officer opted to telephone your wife and explain the situation and allow her to withdraw, which your wife agreed to do. Your wife has not been provided with a refusal notice as her application has not been refused.

As the Entry Clearance Officer explained to your wife, she is free to make an application under the Immigration Rules, depending on whether she wishes to just visit the UK or whether she intends to settle there.
Full guidance can be found on our website at: https://www.gov.uk/browse/visas-immigration

Firstly I have confirmed that my wife did not agree to withdraw, What is the opinion of the members as to next move. For sure we will apply in the mean time for a family visit,

Pete

Petem wrote:The Surinder Singh judgment was implemented into the 2006 Regulations by way of regulation 9. The requirement at regulation 9(2)(c) and 9(3) requires the British citizen to have transferred the centre of their life to another EEA member state, where they resided as a worker or self-employed person with their spouse or civil partner before returning to the UK. Full details can be found on: https://www.gov.uk/government/uploads/s ... dacted.pdf

I note that your wife was previously issued an EEA family permit, under the Surinder Singh judgement, as you were residing in Germany at the time and exercising your treaty rights.
In her current application, your wife confirmed that you are a British citizen and that you have returned to the UK to live and work. You are therefore no longer exercising your treaty rights. She therefore does not qualify for an EEA family permit.

That's an illogical refusal. They had already accepted that she had qualified under the Surinder Singh judgement by previously issuing an EEA family Permit for her. You were working in Germany since 2003. 9(2)(c) and 9(3) were surely satisfied.

Your recent return to the UK should not affect her status. If it did, then it would be impossible for spouses of British citizens who entered the UK under to Surinder Singh judgement to apply for further EEA Family Permits from outside the UK, nor EEA residence cards while in the UK, under the Surinder Singh judgement. They would be unable to attain PR.

Moreover, there is no requirement for you to be exercising your Treaty Rights in the UK (Eind).

Thanks Vinny for your support, I did in fact respond to the email with:

May I bring to your notice the contents of the government site:
Guidance
EEA family permit: EUN02

Site location: https://www.gov.uk/government/publicati ... ingh-cases
I quoted the full paragraph and and ended with:

I am clearly covered by the sentence " Example: A British national is exercising an economic Treaty right in Germany and living with his non-EEA national spouse and children. On the British national’s return to the UK, his non-EEA national family members can apply for an EEA family permit to join him under EC law."

Based on the above I must ask that you again reconsider your choice to refuse a Family Permit Visa for my wife, I also ask you to confirm that you have sought advice from European Operational Policy in this matter and that all relevant documentation is retained, including any communication.

Lets wait and see what this brings, sorry need to run to work to maintain myself as a qualified person
Pete

I would guess the ECO doesn't see a lot of Surinder Singh application in Asia and hence is not familiar with the nuances of the regulations. Make sure he seek advice from Liverpool. I would also complain.

Good for you to rush back to work but there is no need to be a qualified person in the UK (although it does help to pay the bills).

Wife attended the Visa Application Centre today, they returned everything but refused to accapt the new application with out an appointment. The first available appointment is for monday. another two hour trip each way. She went first thing CN time, needless to say I did not slept well last night.

Woke this morning to find the following email:

Thank you for your email.
To confirm, we have not refused your wife's application. The Entry Clearance Officer did not think that the application had been made under the correct category and therefore suggested your wife might want to withdraw. It is currently marked as 'deferred' on our system waiting for confirmation as to whether she wished to do so. In light of your email below I will ask the Entry Clearance Officer to consider your wife's application under the Surinder Singh judgement, and ensure that they refer to the European Operational Policy Unit should they need to do so.

Name removed (same as before)
Entry Clearance Manager
Shanghai Visa Section
UK Visas and Immigration

I will respond to them later.
Just read a message that she was already contacted and is heading back to the VAC. I will update you later

Hi
Sorry for the delay in responding, as an update on getting her documents back. The Visa Application Centre (VAC) refused to hand back her passport and documents until she signed an application withdrawal notice.

They would not budge, wife signed under duress and also had to pay for a copy of the document as they refused to give her a copy, she was also denied the use of her camera as a shot, had to photocopy it at a cost.

Further to her recall later in the day, they requested back all the documents for the Family Permit (FP) and passport, wife requested a receipt from them, it was initially refused, wife stood her ground as she had no proof of handing them over and they created one and signed it

Now to today, wife called to VAC, passport ready for collection, arrived to collect, no marriage certificate, wife had to wait over 2.5 hours for it to be delivered. She correctly informed them that this document can be requested at the border and if not returned then they will give an official statement that they lost it as she only had one copy.

The result is a FP, dated 9 Dec 2014, Multi, until 9 Jun 2015, endorsed EEA FP Family Member “My initial Surname”. Thankfully she can travel next week.

Once I chill a little I will be compiling a full and formal complaint in an attempt to recover our losses (wife had to cancel an internal flight to visit friends etc)

Just one other point of interest, only because of the problems we had was the reason wife could collect the documents. The VAC in Shanghai does not do any form of tracking, the first you know is when the post arrives, and I hope they are / will be reflecting this in their monthly records of visa applications. Not

Pete

@Petem: Congrats for the family permit. I note that you mentioned that your wife previously entered the UK with a German residency card so I just wanted to ask you whether your wife encountered any problems when she travelled from Germany to UK using the card as from what I understand people doing surinder singh in Germany still need to apply for a family permit for entry to UK.

Hi Logical_1

Regarding travels with German residency card, we had previously used it to enter Ireland flying into Dublin.

For the UK the only entry was in the very early hours of September 6 this year. based on previous entries with FP I expcted the usual questioning but this did not happen

We used the Channel tunnel freight and were driving a UK registered removal van filled with our property, no questions, no finger prints, we were let through, I never actually checked but the wife says the passport was stamped (what I would expect). This was on the French side.

Just a note: I believe we used it correctly as she already had a departing flight from the UK. It was a rush move to start a new job, hence the FP application to return to the UK and not any attempt to reuse the German residency card.