No right of appeal against refusal of residence card to EFM

Use this section for queries concerning applications on any of the EEA series of forms, and also for applications for EEA Family Permits.

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Re: No right of appeal against refusal of residence card to

Postby Obie » Thu Oct 27, 2016 10:29 am

Why did judge complain about salary?
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Re: No right of appeal against refusal of residence card to

Postby Frank001 » Thu Oct 27, 2016 10:31 am

Obie wrote:Why did judge complain about salary?

Hi Obie sorry it was auto correct salary=sala
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Re: No right of appeal against refusal of residence card to

Postby Obie » Thu Oct 27, 2016 10:34 am

What does your lawyer suggest?
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Re: No right of appeal against refusal of residence card to

Postby Frank001 » Thu Oct 27, 2016 10:36 am

Obie wrote:What does your lawyer suggest?

Except sala one point was this

. So sitting as a judge of the First-tier Tribunal I am constrained to find that the appellant does not have a valid right of appeal. 17. This matter was always going to have to go back to the respondent for the exercise under Regulation 17(4) to be performed. Under the new dispensation, the only route by which this can happen is through the appellant making a fresh application. If I had jurisdiction to do so, I would find the appellant and the sponsor to be credible witnesses whose account of a genuine and durable relationship is supported by a mass of documentary evidence, much of it new from the respondent's perspective. The asserted discrepancies largely melt away when considered in the context of the interviews as a whole and/or in the context of the surrounding evidence, and any that remain are not of such import or significance as to sustain the suspicion that the relationship is a sham.
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Re: No right of appeal against refusal of residence card to

Postby Obie » Thu Oct 27, 2016 10:44 am

You were giving the right of appeal to the Upper Tribunal.
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Re: No right of appeal against refusal of residence card to

Postby Frank001 » Thu Oct 27, 2016 10:50 am

Obie wrote:You were giving the right of appeal to the Upper Tribunal.

Yes . And last paragraph from judge I wrote it already in my last message. So what do u think about that? on paragraph he has mentioned about fresh application, I didn't understand much.
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Re: No right of appeal against refusal of residence card to

Postby avjones » Thu Oct 27, 2016 11:51 pm

I wouldn't want to give any definite view without seeing the whole case in context.

But it looks as if you had a nice judge, who made comments which would certainly help in any fresh application.
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Re: No right of appeal against refusal of residence card to

Postby Frank001 » Thu Oct 27, 2016 11:56 pm

avjones wrote:I wouldn't want to give any definite view without seeing the whole case in context.

But it looks as if you had a nice judge, who made comments which would certainly help in any fresh application.

Except that comment rest of them was only about sala that he need to follow. I have given as much as documents I could give.but don't understand one thing that if I don't have appeal right how I can win /appeal from UT. Which one is more better option fresh applications /UT
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Re: No right of appeal against refusal of residence card to

Postby Obie » Fri Oct 28, 2016 12:01 am

Quite a good finding, similar to mind.

I spoke to a senior presenting officer, who is a good friend of man.

He told me that in case where a court made a positive finding, the Secretary of State will object in future proceeding to it being used as the tribunal who made it, did not have jurisdictions. He said the Secretary of state will not seek to use finding to refuse in cases were an appellants appeal was dismissed.

He has a point, as well as you. I will see how Home office address the point of postive finding in their response to my PAP.

A friend of mine received a response to his today, was told they will consider taking account of the views expressed within 2 months.
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Re: No right of appeal against refusal of residence card to

Postby avjones » Fri Oct 28, 2016 12:36 am

Obie wrote:He told me that in case where a court made a positive finding, the Secretary of State will object in future proceeding to it being used as the tribunal who made it, did not have jurisdictions. He said the Secretary of state will not seek to use finding to refuse in cases were an appellants appeal was dismissed.

He has a point, as well as you. I will see how Home office address the point of postive finding in their response to my PAP.


I think that would be quite hard to justify as a public authority. Can't imagine wanting to make that argument myself!

I think it would be hard for the SSHD to completely ignore it, jurisdiction or otherwise.

I've had similar ETS-style cases which have sneaked into the FTT where they shouldn't have done, and had positive findings of fact with no jurisdiction. That can be used as a (good) argument against out-of-country-only appeal rights against a s10 decision.
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Re: No right of appeal against refusal of residence card to

Postby Obie » Fri Oct 28, 2016 12:47 am

It may be persuasive, but clearly not binding. I think Sala was decided poorly and is not good law. Assuming it was correctly decided, then the judge has no jurisdiction , any comments made could be treated as obiter, as the primary issue was whether or not their was jurisdiction.

Assuming a judge without jurisdiction made a finding which was clearly wrong and unfavourable to the Secretary of state, in circumstances where she will have no basis to challenge it.

Justice cannot require that such finding be binding on her, in circumstances where she had no basis for challenging them due to the jurisdiction issue.

I don't tend to agree with presenting officers a lot, but is one of the fairest of them, I respect him immensely and when my grounds are made up, he always concede before we go in for a hearing.
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Re: No right of appeal against refusal of residence card to

Postby avjones » Fri Oct 28, 2016 12:51 am

I don't think they are completely binding, but nor do I think they are irrelevant. We'll have to wait and see, I suppose.

Some of the Senior HOPOs are extremely pleasant and reasonable people, I agree.
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Re: No right of appeal against refusal of residence card to

Postby Obie » Fri Oct 28, 2016 12:56 am

I personally feel the findings will be beneficial to OP, if he threatens the Home Office to reconsider the present application and refusal, than a new application.

I have had terrible experience of Home Office, especially in OFM cases, they always find new reasons to refuse everytime.
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Re: No right of appeal against refusal of residence card to

Postby avjones » Fri Oct 28, 2016 1:09 am

I agree with you on both points.
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Re: No right of appeal against refusal of residence card to

Postby mohsin1 » Mon Oct 31, 2016 2:49 am

hi obie if judge give postive finding did you know anyone who already have postive finding reciently? and home office reconsidering his case and got any decision?
kindly update me because my hesring is on after 2 weeks.
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Re: No right of appeal against refusal of residence card to

Postby Obie » Mon Oct 31, 2016 12:28 pm

mohsin1 wrote:hi obie if judge give postive finding did you know anyone who already have postive finding reciently? and home office reconsidering his case and got any decision?
kindly update me because my hesring is on after 2 weeks.


I don't knw anyone as the decision of Sala came out about a month ago,,so it is unlikely that decisions would have been made on affected applicants or appellant.
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Re: No right of appeal against refusal of residence card to

Postby avjones » Mon Oct 31, 2016 4:48 pm

same here, I'm not aware of any, and it is a bit to soon to be sure
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Re: No right of appeal against refusal of residence card to

Postby Obie » Wed Nov 02, 2016 10:48 pm

Just to update ..

Over the past few days an issue arose as to whether or not there was a jurisdiction for the Upper Tribunal to look at my application for permission to appeal to the Court of Appeal.

I submitted argument that the power exist, and today I gathered that it has been recorded as a lawful application for permission to appeal.

Also gathered from a senior HOPO, that the Home Office have recorded on their system that they will reconsider case having regards to the views expressed by the UT withing 8 weeks, subject to any further evidence they will require being submitted.

So all in all, things seem to be shaping for the best. One can only hope that they will start acting in a pragmatic manner and prevent further stress and waste of money for poor applicant and appellant.

Will still try and pursue Sala even if he succeeds. Will see if COA will enteretain it, giving the fact that it is an issue of general importance.
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Re: No right of appeal against refusal of residence card to

Postby avjones » Wed Nov 02, 2016 11:09 pm

Thanks for the update
Amanda Jones

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People should always consider obtaining professional advice about their own particular circumstances.
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Re: No right of appeal against refusal of residence card to

Postby avjones » Tue Nov 29, 2016 3:31 pm

Quite possible the Home Office will appeal to the Upper Tribunal and say no jurisdiction.
Amanda Jones

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People should always consider obtaining professional advice about their own particular circumstances.
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