Grounds on which EEA Family Permit might be refused

[pedroramos999]

This is an absolute nightmare! Hope someone can advise me on this one:

I am Czech Republic national who has been legally living and working in the UK since 2004. I have been married to my wife who is a Chinese since May 2007. The marriage ceremony took place in the UK. My wife previously stayed in the UK on student visa.

I have been struggling to get an advice and it seems that I keep getting contradicting information from different sources.
My wife had to urgently travel back to China recently. When in China she applied for EEA Family Permit to join me in the UK as a spouse of EEA national. However, after a month long waiting she was refused EEA Family Permit on the grounds that she previously broke conditions of her student visas by not attending university.

I find this outrageous,disappointing and unbelievable that there is such law allowing to refuse my wife to join me in the UK on such grounds. Home Office website as well as EU websites are full of articles explaining that non-EEA family members have right to join their EEA family members as long as the EEA member works and lives in the UK legally.

Me and my wife are desperate, especially as it already been one month since she left UK and was supposed to be back now. We do not know what to do and now do not know what our rights as EU nationals are. Please help.

[vinny]

See also 21.4.16 Local refusal of an application for an EEA family permit and 21.4.17 Refusal on grounds of public policy, public security or public health.

They stated that she did not comply with the conditions of her previous leave as a student under the Immigration Rules. They may have used "7. The applicant is not lawfully resident in a Member State" as the reason for refusal of an EEA family permit.

i.e. Is the reason for refusal due to not satisfying 12(1)( b )(i), where:

12. —(1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and—

(a) the EEA national—

(i) is residing in the UK in accordance with these Regulations; or

(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and

( b ) the family member will be accompanying the EEA national to the United Kingdom or joining him there and—

(i) is lawfully resident in an EEA State; or

(ii) would meet the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom.

I'm only guessing on what may have happened.

However, there's an "or" between 12(1)( b )(i) and 12(1)( b )(ii). Does she meet the requirements of 12(1)( b )(ii)?

I think that if she satisfied the requirements in the Immigration Rules (other than those relating to entry clearance) for leave to enter as your spouse, then she should have been successful. I'm not sure what they mean by other than those relating to entry clearance. Does this mean that just being your legal and genuine spouse is sufficient?

[thsths]

i.e. Is the reason for refusal due to not satisfying 12(1)( b )(i)

However, there's an "or" between 12(1)( b )(i) and 12(1)( b )(ii). Does she meet the requirements of 12(1)( b )(ii)?

Yes, I think that is the problem. The UK law creates a distinction between moving within the EU and moving into the UK from without the EU, which is not present in the European legislation ( Directive 2004/38 ). In the later case, the UK reserves the right to apply much tighter requirements, again not covered by the European legislation. I can see why you would want to make such a distinction, but I don't think it is compliant with European law, and in any case it is not applicable to this situation. So I agree that the decision is absolutely outrageous.

Two question for the original poster: did your wife apply for the residence card using form EEA2 before she left? That would be a big advantage, because once the residence card is issued, she no longer needs a visa. And can you check the refusal letter against the procedures on UKvisas? It would be interesting to know who is responsible for the refusal, and the wording should give you some clues.

And here are your options:

1. The fastest way would be for her to just fly to the UK. According to 5(4) of the Directive she does not necessarily need a visa! Now this is a slightly risky thing to do. She needs the marriage certificate, proof that you are residing in the UK and employed, and proof of cohabitation (shared bills etc). It will also help if you were available at the airport, because they may want to see you and your passport. This is not going to be easy, but I think you chances of success are quite good. And if it fails, you can probably sue for damages (e.g. the cost of the flight, hotel in china etc). Of course you also need to convince the airline to let her on the flight.

2. Contact SOLVIT http://ec.europa.eu/solvit/site/index_en.htm . They help with problems concerning with European law, and I found them to be very responsive. They may have information contacts that would help your wife to get the visa.

3. Contact your MP (member of parliament). He can contact the home office and try to solve the case for you. Of course he may put more or less effort into this. He would also be the person that would have to fix the law, although I still have to find an MP that actually takes this serious.

4. Appeal the refusal. From what I have heard, this is going to take quite a while. But you may want to do it anyway to cover your options.

5. Complain to the Home Office. Formally you have to do this before escalating the case to the European commission. But you will not get a response within a reasonable time frame, and even if you get a response it will probably be useless.

6. Complain to the Europaen commission. They are responsible for breaches of the Directive, so you should at least inform them. Don't expect a fast response, but if they take on your case, they will have the most leverage. If you try 1. and it fails, they will certainly be interested.

7. Apply for a residence card (using EEA2). This will be a bit difficult logistically, and I wonder whether they would refuse it because she is not in the UK. Anyway, they would put a lot more thought into it before refusing it. Unfortunately, this would take 6 months, unless you also apply for EEA1 at the same time, in which case it may happen within 4 weeks.

And of course you can always take a lawyer and go to court. If you suffer any financial losses, you may be able to reclaim them.

[pedroramos999]

Thanx a lot to the last respondent. You are very informative and clearly you know a lot about the topic. Sorry being too emotional but me and my wife feel like they are ruining our life and we cannot do anything about it.

Anyway, to your question: yes, she applied for an Residence Card before she left. Application is still pending with Home Office. The problem is her passport is with her now and Home Office asked for her passport to be submitted within short time-period. Anyway, I am going to try it if our second application for EEA Family Permit fails.

As a last resort we would try to get her on plane and fly to UK together. However, I am not sure how for gods sake would airline allow her boarding.

I have also been thinking to fly with her together somewhere to EU and then travel to UK by bus or train. The immigration might be less strict than at LHR or other airports.

lastly, I am definitely going to contact that EU institution you suggested.

I still do not believe this. They British embassy in china seem to treat everyone like a criminal and believe they can do whatever they like. ---IT IS NOT OVER UNTIL IT'S OVER---

PS: do you have any idea whether non-EU family members need visa to travel to EU if accompained by EU family member?

[thsths]

Thanx a lot to the last respondent. You are very informative and clearly you know a lot about the topic. Sorry being too emotional but me and my wife feel like they are ruining our life and we cannot do anything about it.

Many participants here went to a similar phase, so we know how that is. Maybe that explains with this forum is so helpful. And luckily with the European law you have a lot of options, because it actually formulates rights (very much unlike the national immigration law, where you have to jump through hoops).

Anyway, to your question: yes, she applied for an Residence Card before she left. Application is still pending with Home Office. The problem is her passport is with her now and Home Office asked for her passport to be submitted within short time-period.

Excellent. Did they already ask for it? Usually they give you 21 days to do that, and with fedex from China that should be doable. (You may to send it to your address first, and then to the Home Office, just so you know where it is.) Once they receive the passport, they usually process the application within days. So this may be your best option.

As a last resort we would try to get her on plane and fly to UK together. However, I am not sure how for gods sake would airline allow her boarding.

I have also been thinking to fly with her together somewhere to EU and then travel to UK by bus or train. The immigration might be less strict than at LHR or other airports.

You have to ask the airline about their rules. Sometimes they know how it works, sometimes they are ignorant, it always depends. Going by ferry does not make a difference in my experience, except that you may find an inexperienced immigration officer. I am not sure whether that would help in your case.

PS: do you have any idea whether non-EU family members need visa to travel to EU if accompained by EU family member?

Check it for yourself. Directive 2004/38 says in Paragraph 5(4):

4. Where a Union citizen, or a family member who is not a
national of a Member State, does not have the necessary travel
documents or, if required, the necessary visas, the Member
State concerned shall, before turning them back, give such
persons every reasonable opportunity to obtain the necessary
documents or have them brought to them within a reasonable
period of time or to corroborate or prove by other means that
they are covered by the right of free movement and residence.

Now I am not a lawyer, but this does not look like a very precise statement to me. The good aspect is that the case work instructions for the immigration officers also contains a similar passage. So you can always point them to their manual, and if they follow it, you should both be able to get into the UK together.

[vinny]

Possible admission without a Family Permit is also covered in 11(4).

[pedroramos999]

thanx again guys. I am still trying to get to understand why she has been refused.
I'll copy exactly what the ECO wrote as a reason for refusal:
You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under Treaty establishing the European Community in the United Kingdom. However you have failed to produce evidence of your lawful residence in a Member State and I cannot be satisfied that you are lawfully resident in a Member State and thus have a right of movement as the family member of an European Economic Area national.

Furthermore I consider this to be a marriage of convenience.

Furthermore as you are applying from outside the EEA and you have been unable to demonstrate lawful residence in an EEA member state you are expected to meet the relevant requirements of the Immigration Rules for leave to enter as a spouse.

I have therefore considered your application under paragraph 281 of the immigration rules which state that
[/i]

Now the last time I tried to direct the ECO to issue my wife the family permit I only achieved that we received a response the same day: refusal.

I especially do not understand the meaning of the underline text. Also, we want to re-apply and make them understand by providing more evidence that this was not marriage of convenience. However, I find this whole thing ridiculous and very stressful.
_____________________________________________________________
what happens if I did not reply to Home Office within 21 days? as u probably know it was a postal strike here in the UK now and so I sent fax to home office that we will provide documents after the strike.
_____________________________________________________________
the dillema is re-apply for EEA family permit overseas or try to deliver our passports to Home Office ASAP???

[thsths]

However you have failed to produce evidence of your lawful residence in a Member State and I cannot be satisfied that you are lawfully resident in a Member State and thus have a right of movement as the family member of an European Economic Area national.

...

"Furthermore I consider this to be a marriage of convenience."

...

I especially do not understand the meaning of the underline text. Also, we want to re-apply and make them understand by providing more evidence that this was not marriage of convenience. However, I find this whole thing ridiculous and very stressful.

Well, there is a combination of reasons here. I still wonder whether the refusal was written locally or in the UK. I assume the former, but you would need to file a freedom of information request to find out.

The underlined part is what I mentioned earlier: the UK tries to apply stricter rules when you enter the EU than when you move within the EU. This is a worrying piece of legislation, but it is not meant for you anyway.

You said you got married in the UK, so I assume your wife got a Certificate of Approval (CoA)? Producing this should answer this first point, because it proves (in a way) legal residence in the UK. Once this is answered, paragraph 281 is no longer applicable.

The more worrying reason is the citing of "marriage of convenience". The directive says that "Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience." Again a broad statement, and the UK think it gives them the rights to ask extra questions.

What they want to see is proof of cohabitation and proof of living together. Usually this means bank statement and utility bills in both your names, or at least to the same address. Two shared bills are usually considered sufficient, and maybe a picture of the wedding. Once you have provided these, the whole process should probably go rather smoothly.

what happens if I did not reply to Home Office within 21 days? as u probably know it was a postal strike here in the UK now and so I sent fax to home office that we will provide documents after the strike.

I am not sure how important the 21 days are anyway, but I would expect them to extend the deadline for the duration of the strikes. So that would give you until the end of the month do send the passport.

the dillema is re-apply for EEA family permit overseas or try to deliver our passports to Home Office ASAP???

That is a difficult one. The Home Office may well come to the same conclusion as the embassy, unless you can provide proof of cohabitation. They might also be aware of refusal your wife got. And unfortunately you cannot ask the Home Office about this, because they never respond to important questions

I think you should write to SOLVIT and explain your situation. They have contacts into the Home Office that work, so they can tell you what the Home Office recommends in your case. I would recommend to be completely honest to the Home Office, which means you should tell them that your wife is in China at the moment (SOLVIT will probably tell you the same, but that is not a surprise).

SOLVIT also usually mentions the Paragrah 5(4) as a last option, but they do not recommend it. Personally I would say that you can probably chance it, if you have enough documents to show that it is not a marriage of convenience. And there is no need for you to fly to China, but you should be available at the airport when she arrives.

[pedroramos999]

yeah....as you can see, we are here in a bit of a difficult situation.

facts:

yes, we got Certificate of Approval before the marriage took place.

I am 99% sure the decision has been made in locally. (the ECO does not seem to like chinese going to UK.)

and lastly, we do not worry about the fact that they accused us of marriage of convenience. We have enough documents to to proof that it was not the case.

The only thing I am worried about is that the ECO seems to make a huge issue of the fact that my wife at some point in the past got student visa extension, however failed to attend the college. (stayed in the UK for 5 years, only last year she failed to attend) How ridiculous is blocking re-entry for such reason even though she is spouse of EEA-national who lives and works in the UK legally. The whole thing seems to be inappropriate and wrong.

I might have to wait now and see what happens with the second application. We planning to re-apply sometimes this week.