Unmarried UK/Non-EU couple: EEA2 vs FLR(M) vs ?

[Obie]

Thats a good point. It will be interesting to know if she succeeded in her appeal under the Carpenter provisions in community law.

I believe her refusal would have been on the basis that she is not a family member, as she was not married to the British national in question, neither has she resided in an EEA state with him.

Although the judges had some doubt about the soundness of that decision.

She did won on the Chen basis, as the child is a French national.

There is no doubt in mind of any member of the legal fraternity that, the directive applies as a whole to the family members or other family members of returning national. It is only the UKBA that are pretending to be stupid.

If their intepretation of Surinder Singh and EInd Principle is correct, then it undermines the whole definition and equal treatement awarded to the status of Union Citizen , which stupilates they should recieve same treatment in law regardless of their nationality.

[Rolfus]

HO has been granted leave to appeal to Upper Tribunal. Their main argument is that Surinder Singh doesn't apply to unmarried partners. Now why couldn't they have argued that when I had a legal team assembled at the First Tier Tribunal!

[Obie]

I am sorry to hear that Rolfus. I hope you win your case, and i wish you all the best. These people seem to be forgetting the source of rights in Surinder Singh cases, which is the migrant worker. If the migrant worker who is returning to his home country has rights similar to or on par with that of a union citizen who moves to, or establish his/her in another member state, it remains to be seen why the same rights will not be afforded to both categories of people.

The Judgements below mention the possibile applicability of Regulation 8 to Surinder Singh cases.

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean


Therefore i am lost why the judge never question the soundness of the ECO claims.

I am hopeful you will win eventually. They seem to have got back to you guys pretty quickly. Could it be because it was an appeal from ECO. I know someone who appealed to UTIAC, and it took about 2 months before he found out he has been granted it the right to proceed.
However the quicker, the faster the prospect of winning and disposing this matter.

The key is perseverance. Dont give up or feel discouraged. A relative of mine fought an 18 months battle under this same circumstance, in fact it a more hostile circumstance, as a right of appeal was not granted, and he won.

[Rolfus]

We had another day in court on April 12th at the Upper Immigration tribunal. It was only to hear arguments as to whether the Home Office should be allowed to appeal. If they are allowed, we will have to have another hearing to actually hear the legal arguments.

Six weeks later and the judge has still not ruled!

In the meantime we made another attempt to get the FP stamped in the passport on the basis that we won the appeal at the First Tier tribunal.This was met with absolute refusal.

Oh well, my son has only been prevented from visiting his own country with his mother for a quarter of his life, so I guess that the delays are all pretty reasonable.

[Obie]

What were the reasons for refusal ? Did they consider Zambrano ruling and its effect ?
I see no reason why the judge is wasting time. Even if they said the first judge erred in law, i dont think that is material anyway, as through you treaty rights, and by analogy to EEA NATIONAL, your partner would have qualified for the discretion under regulation 12(2) any way , which in actual fact would lead to the same outcome. I cant see any reason why she would not qualify under the so called discretion, which has no basis in the directive.

[Rolfus]

So far, every letter that has been sent to the Home Office, the UKBA or the UKBA office in Warsaw has been simply ignored.

So we filled in the on-line application form for a new EEA FP, this time on the basis of my partner being the mother of a British self-sufficient child, and quoting the case law established in Chen and Others (Free movement of persons) [2004] EUECJ C-200/02 (19 October 2004), clarified in M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC), and expanded in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09 (08 March 2011). In the covering letter, it said, in respect of the question "Have you ever been refused a visa" .....While leave to appeal the First-tier tribunal ruling has been granted to UKBA, no Stay of Effect was applied for or granted. The decision of the First-tier Tribunal is therefore effective until or unless a different decision is made by a higher tribunal. Please would you take this opportunity to stamp my passport with the EEA FP as an Extended Family Member of Rolfus

We also filled in a request for a visit visa.

My partner asked for two consecutive meetings at the embassy and attended on her own. They won't let two people through security, and they take away your telephone! The lady at the embassy was trying to be genuinely helpful and, after talking to her boss, and phoning Warsaw, said that as we had won the appeal my partner shouldn't apply for a new FP, but leave your passport and we'll stamp in the other, and don't apply for a visit visa, and if you do what you are trying to do everything will be refused.........

So my partner took away the new applications, but left her passport. One week later they confirmed by phone that "as the appeal is still ongoing you can't have the EEA FP"

Two weeks later we are still trying to fix a new appointment to submit the new applications.

I think that when the next meeting actually happens they will say that the online applications have expired so they can't accept the papers.....

[Rolfus]

I take it back! When my partner finally got an appointment on May 25th a very helpful lady took all the papers and said "its usually taking 2 weeks at the moment".
We shall see.
Still no ruling from the UIT on whether the Home Office appeal should be allowed to proceed.

[Rolfus]

It is now ten weeks since the hearing at the Upper Immigration Tribunal and still no ruling as to whether the Home Office counter appeal is to be allowed to proceed to a hearing. One might be forgiven for thinking that the judge does not find that the HO arguments are immediately convincing.

But on June 7th, UKBA rejected both my partner's new applications.

Summary of the reasons for rejecting the EEA FP application under Chen,M, & Zambrano:

-You have applied … as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty of Rome in the United Kingdom.
-257 (C) of the Immigration rules does not apply because your son is British and therefore not an EEA national under the definition in the Immigration Rules.
-There are reasons for judging that no special circumstances apply:
Application is judged to be for your benefit not your son’s
-And further:
No documentary proof that son is self sufficient supplied
Son judged not to be or have been deterred from traveling to UK because he can travel with father.

This line of reasoning has wholly ignored the basis of the application and the Zambrano judgment. It is wrongly stated that the application is as the family member of a European Economic Area national. It is stated in the covering letter “This new application is made as the mother of a Union Citizenâ€

[Directive/2004/38/EC]

Keep strong!

Note that my partner has an unblemished immigration history comprising six vists over seven years previously having held a student visa, several visit visas and an EEA FP.

In what context did your partner previously have an EEA FP, and what is different now?

[Rolfus]

All is explained in earlier posts on this thread.

The more I think about this the more I am shocked that despite having WON her appeal last November my partner still can't get the FP in her passport. And she, and my son, are now punished by her being denied even a visit visa.

And how can they have a policy of simply ignoring rulings like Zambrano?

[Rolfus]

This extract from ECIS CHAPTER 9 – APPEALS sheds light on the UKBA thinking.

[quote]3.14 Allowed appeals on cases which were initially refused on the basis that the person did not qualify under Regulation 8(2)-(5).
Allowed appeals on cases which were initially refused on the basis that the person did not qualify for consideration under Regulation 8 should be referred the ECO or (for in-country cases) to European Casework. In these cases those responsible should write to the appellant acknowledging the AIT determination and that the ECO/Secretary of State will now consider the application, exercising his discretion under Regulation 12(2), 16(5) or 17(4) as appropriate. A decision by the AIT to allow an appeal where we initially decided that the person did not qualify for a document does not mean that we are bound to grant. In such circumstances, the ECO/Secretary of State is simply required to consider granting a document. The AIT only has the power to require the ECO/Secretary of State to consider granting a document, it does not have the power to order one to be granted/issued. This is because s86(3)(b) of NIA 2002, only allows the AIT to exercise discretion belonging to the decision maker if the decision maker has exercised it him/herself. As we decided that we had no power to issue a document (because we considered-incorrectly- that the applicant did not meet any of the conditions of Regulation 8(2)-(5)), we will not yet have exercised our discretion in this case. Therefore, the AIT cannot conclude that the discretion “should have been exercised differentlyâ€

[Rolfus]

I have now drafted my partner's appeal against refusal of the visit visa. As the refusal was based on the risk that she might do work related activities, a key question is whether she actually has a directly effective EU right, irrespective of whether it is attested by an EEA FP.

Does anyone have any comments on what I have drafted to encapsulate that?

[quote]40 The ECO’s whole line of argument is based on the premise that it would be a breach of immigration rules for the Appellant to undertake work experience. This fails to consider the possibility that she already has an EU right that allows her to work in the UK. As has been discussed, there has been a successful appeal against refusal of a FP (Warsaw/xxxxx). In the determination it is established that the Appellant has derivative treaty rights entitling her to work in the UK. She is waiting for these rights to be attested to by an EEA Family Permit. That she has satisfied the factual conditions of this EU right has been established.

41 The direct effectivity of an EU right is described in M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC) (10 August 2010):
40. Whereas in W China the conditions for the existence of the right were not made out, on the IJ’s findings in the present case they were. Accordingly it is apparent as a matter of law that having satisfied the factual conditions for its existence M enjoys a derivative right of entry to make C’s right of entry effective. This is a right given by EU law. It is a directly effective right, that exists independently of the terms of the EEA Regulations and the Immigration Rules that in any event must be interpreted compatibly with EU law where it is possible to do so.

42 The position of the Appellant is exactly analogous. A judge has established that the factual conditions exist. Her right to work in the UK is directly effective under EU, and therefore British, law, irrespective of whether or not it has been attested to by an EEA Family Permit.

43 The Appellant is also the mother of a British Child and therefore has rights to reside and work under Article 20 TFEU. This has been confirmed by the UKBA in a Freedom of Information Act response reference 19033 of July 15th.
“You have also asked whether a non-EEA parent and primary carer of a minor British child under the ECJ’s ruling can get employment in the UK. Whilst the UK Border Agency is currently considering the full implications of the Ruiz Zambrano judgment, it is clear that the judgment enables those who acquire a right to reside on the basis of the judgment to also have a right to work. There is nothing currently to prevent reliance on the Ruiz Zambrano judgment from seeking to rely upon it when seeking employment. However, as employers are subjected to the civil penalties regime evidencing a right to work in the absence of documentation issued by the UK Border Agency may prove problematic in terms of the employer discharging their duty in law to ensure they only employ those who have a right to work in the UK.â€

[leonex4t5]

You are welcome Rolfus...

And also if you saw my 3rd question about taking on employment without a dresident document? and they responded that there was no provision to prevent taking employment in light of zambrano, but the employee will find it difficult to convince the employer.

I had to be very cheeky in my FOI question..lol i should be working with the press...lol

http://www.whatdotheyknow.com/request/7 ... 3.pdf.html

[Rolfus]

I wrote to the UKBA asking, in light of what the immigration lawyer community is now calling The Williams Letter, (a bit like The Zimmerman Telegram):

If a non-EU parent without an entry clearance but with Zambrano rights presents him/herself to a port officer, accompanied by the British child, will the parent be admitted to the UK?

I got a reply today:

I am writing to confirm that the UK position on the Ruiz Zambrano
judgment is still being finalised. Until it has been finalised we are
not in a position to answer your questions. However we aim to respond to
your questions within 28 working days.

Are we seriously expected to believe that they don't know what would happen???

But it would appear that they are close to finalising a position on Zambrano...

28 working days is six weeks in real money.

It is now 16 weeks since the hearing at the Upper Tribunal and still no news.

[Jambo]

Don't build your hopes up. Sounds to me as a standard ending for a letter in cases they don't provide an answer. The key words are "aim" and "respond". They have their targets but no one promises to meet them.

[Rolfus]

So we have a decision. Signed by the Judge only 11 weeks after the hearing, but it then took another 6 weeks before it was put in the post. UIT accepts all findings of fact, but says the legal arguments put forward by the first tier judge are insufficient. Original determination set aside.

So we have a new UIT hearing scheduled at the end of the month to argue again whether Surinder Singh should apply to Other Family Members. And if so, whether it is by construing the Regulations in the light of community law, or whether it is the doctrine of direct effect.

[Rolfus]

Another day in court today. No legal team helping me as I had decided to appear as a litigant in person. Two judges. Unbiased HOPO. Result: a ruling in favour of granting an EEA FP and a promise of a direction to give effect to the ruling. Unfortunately they did this by re-exercising discretion in our favour and have not ruled on the point of law, which was whether OFMs can benefit from the Surinder Singh principle. So it won't create a precedent that can help others.

Does anyone know what possibilities the Home office has for making another appeal?

By coincidence, last Friday we got an email saying they had reviewed the appeal and now intended to grant her visit visa.

By further coincidence there has been a decision on how Zambrano should be implemented, so I expect news on that appeal shortly.

Coincidence? "Once is happenstance, twice is coincidence, three times is enemy action" Ian Fleming.

[Obie]

I am pleased to hear the good news. It must be a huge relief. A proper written determination will be sent to you, which will detail the legal basis for their determination. It will be interesting to see its content.

[Directive/2004/38/EC]

Rolfus, thanks for the good news, and all the work you have clearly put in behind it!

[86ti]

Congratulations! Good to see that you were succesful after this long "journey". Thanks for the feedback.

[Obie]

It appears i was overjoyed to the point that i did not answer your question. I find it interesting that they decided to exercise the discretion themselves again. Under paragraph 86(3b) a court cannot exercise a discretion which the decision maker has not exercised first.

Considering that was the basis for which they found your previous judge erred in Law it is odd that the decided to do the same.

As i said one should wait for the promulgated decision, as it is bound to provide reasons and legal basis for their decision.

Yes the HO can appeal to the Upper Tribunal for permission to appeal to the court of appeal or they could appeal to the court of appeal directly, if permissions is refused

[Rolfus]

Still no written judgment from the Upper Tribunal, and of course no Family Permit.
But the good news is that UKBA have actually issued the visit visa that was originally rejected.(See post above for July 23rd).
This does prove that sometimes the refusal of a visa really is overturned on review by an Entry Clearance Manager.
The bad news is that it is only a six month visa. The letter says

The decision to refuse your application for entry clearance as a visitor to the United Kingdom has been reviewed and we are pleased to inform you that entry clearance has now been issued.
You applied for a two-year multi-entry entrance clearance but you have been granted entry clearance for six months.We are satisfied that entry clearance valid for six months is appropriate for your circumstances.
There is no refund available on your application for a two-year multi-entry visit visa and there is no right of appeal against this decision.
We regret that we are unable to enter into further discussions on this matter.

Can anyone think of a reason why it would be appropriate in her circumstances, or is this just UKBA being vindictive? It is hard to think of a better way of demonstrating a long-term connection to the UK than by being the mother of a British child.
Is there really no appeal? They call it a visit visa, but in reality it is a family visit visa. Is there an ombudsman who can look at this sort of decision?
So, one refusal has been overturned on ECM review, one refusal has been overturned by first the first tier tribunal, and now confirmed by the upper tribunal.There only remains the refusal of the application on the basis of Chen & Zambrano.
When we win that appeal, will my partner in future applications be able to answer the question "Has an application for a visa ever been refused" with a No, or will she still have to say Yes? Put another way, if an initial refusal is overturned on appeal and the visa granted, is it a refusal?
I have posted some thoughts on Zambrano on that sticky thread.

[Directive/2004/38/EC]

It may not satisfy you, but there is a UKBA complaints process. Link is in http://eumovement.wordpress.com/eu-coun ... d-kingdom/

I would also encourage you to consider doing a SAR to see what they wrote about the decision in her file.

I personally tend to think that if you have done a visa application, and from the original application a visa is eventually issued, than the application has been not been rejected. Another way to think about it that lots of visa applications are for a microsecond "mentally rejected" when the IO thinks there is not enough evidence of XYZ, and then they subsequently realize it is actually there. These are similar processes but with different players and different time scales.

[Rolfus]

Dear Directive,
Thank you for this advice.
By another curious coincidence we got the reply to our SAR the same day as the the visa.
There is nothing in it that is negative. Poor reporting of the court hearings by the HOPOs is the main feature.
I will try to use the complaint procedure.

[Directive/2004/38/EC]

You may also have a legal right to correct the information in the file... Not sure really how that works.