EEA FP refused on mistaken grounds...

[Mark.Boats]

Hi All

I previously asked for advice about applying for a family permit, please see this thread:

http://www.immigrationboards.com/viewtopic.php?t=129730

We just received a call to collect my partner's passport, and enclosed was the following letter of refusal:



The reason for refusal is in this paragraph at the bottom of the first page (with my own bold added for emphasis):

Although you state that you are in a relationship with Mr XXXXX, I note that you are not married to him and neither are you his civil partner. Therefore, you are not the family member of Mr XXXXX for the purposes of the EEA regulations and you do not qualify for an EEA family permit on this basis.

Am I missing something here or have they fundamentally missed the entire section of the regulations relating to unmarried partners in a durable relationship with a qualifying person?

Of course we intend to appeal, any advice on doing so? Should we appeal online? We don't need to submit any extra paperwork as our appeal is based on the reason for refusal being invalid, if you see what I mean?

[Mark.Boats]

OK, here's a draft of what we intend to submit for our "Grounds for appeal"

I am appealing the refusal of my application for an EEA family permit on the grounds that I believe the Entry Clearance Officer's justification for refusal is unlawful. The reason for refusal has been taken without reference to the appropriate legislation and a decision was made in ignorance.

Firstly, note that I shall refer to “The Immigration (European Economic Area) Regulations 2006” as “The Regulations” in this document

Regulation 8 of The Regulations states that “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

Reg.8,Para(5) states that a person is an extended family member of an EEA national “if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.”

My partner and I have submitted documents to show that we have lived our lives together for more than the two year guideline for “durable relationships” as if we were husband and wife, therefore I believe that I qualify as an “extended family member” of Mr. XXXXX for the purposes of this application.

The ECO asserts that, as Mr. XXXXX and I are not married, they are “not satisfied that (I) meet all of the requirements of Regulation 12” of The Regulations.

While it is true that I do not meet the requirements of Reg.12,Para(1) of The Regulations, the ECO has failed to note that Regulation 12, Paragraph 2 states:

(2) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if—
(a) the relevant EEA national satisfies the condition in paragraph (1)(a);
(b) the extended family member wishes to accompany the relevant EEA national to the
United Kingdom or to join him there; and
(c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the
EEA family permit.

As we intend to travel together to the United Kingdom, Mr.XXXXX satisfies the condition in Reg.12,Para(1)(a).

As I intend to accompany Mr. XXXXX when we travel to the United Kingdom, I meet the criteria in Reg.12,Para(2)(b)

It only falls upon the ECO to decide whether Paragraph (2)(c) of Regulation 12 applies to my application.

Regulation 12, Paragraph (3) also states that:

(3)Where an entry clearance officer receives an application under paragraph (2) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.”

Unless I am mistaken, no “extensive examination” of my personal circumstances has been undertaken, and I have been given no reasons justifying a refusal under Reg.12,Para(2) of The Regulations.

As such, I consider the refusal of my application to not be in accordance with The Immigration (European Economic Area) Regulations 2006 and request that said refusal be overturned with immediate effect, and my EEA family permit granted.

[EUsmileWEallsmile]

You would not be the first to have had an application rejected on the wrong grounds.

Bear in mind that Singh explicitly applies to married / durable partners. This may be your problem.

[Mark.Boats]

Thanks for the reply - I'm aware of the Surinder Singh judgement, but as I was aware it applies, as you say, to "durable relationships"

My partner and I have been living as if we were a married couple for two years and two months, we didn't just say "we're in a relationship" as the refusal letter implies, we submitted detailed evidence to show that we meet the requirements of being classed as durable partners

That said, the refusal doesn't question our "durable relationship", it just states (incorrectly, IMO) that as unmarried partners we do not meet the requirements of Reg.12

We're considering contacting the Embassy here in Zagreb to see if they can handle this locally, the appeal would have to be sent to the UK and I can see the whole process dragging on for weeks, all because of some ignorant ECO in Belgrade!!

[Jambo]

You would not be the first to have had an application rejected on the wrong grounds.

Bear in mind that Singh explicitly applies to married / durable partners. This may be your problem.

I believe EUsmileWEallsmile means civil partners and not durable relationship. The UKBA has a narrow view that only married/CP are considered family members for Singh based application (it could also be what the ECO was trying to say in the refusal letter). It would interesting to see how the HO would defend the view in court although I suspect it would be quicker to wait for July (when Croatia joins the EU) than for an appeal date.

[Mark.Boats]

You would not be the first to have had an application rejected on the wrong grounds.

Bear in mind that Singh explicitly applies to married / durable partners. This may be your problem.

I believe EUsmileWEallsmile means civil partners and not durable relationship. The UKBA has a narrow view that only married/CP are considered family members for Singh based application (it could also be what the ECO was trying to say in the refusal letter). It would interesting to see how the HO would defend the view in court although I suspect it would be quicker to wait for July (when Croatia joins the EU) than for an appeal date.

Ah OK, I see what you're getting at now. I have seen success stories of unmarried Singh couples so there must be some light at the end of the tunnel. I wish we'd known about this before we submitted...

Croatia is set to join the EU, but my partner will be subject to immigration control and unable to work unless we marry

Neither of us wanted to cheapen something that means a lot to both of us but it looks increasingly likely it could be the only option...


On a separate note, the UKBA have also failed to return our original documents, all we got was her passport and this letter. They have all our original paperwork including employment contracts and discharge certificates, which I will need to prove my sea time when I come to take qualifications in the next few years...

[Mark.Boats]

OK...

I've done some more digging, and hidden away in Section 3.14 of Chapter 9 of the ECIS:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

We have this:

[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€

[vinny]

You would not be the first to have had an application rejected on the wrong grounds.

Bear in mind that Singh explicitly applies to married / durable partners. This may be your problem.

I believe EUsmileWEallsmile means civil partners and not durable relationship. The UKBA has a narrow view that only married/CP are considered family members for Singh based application (it could also be what the ECO was trying to say in the refusal letter).

See also Chen Zembrano Singh EEA Family Permit.

[Mark.Boats]

See also Chen Zembrano Singh EEA Family Permit.

Thanks vinny

I had literally just finished reading Rolfus' thread where it appears he successfully argued his case, but for the life of me I can't find out how he argued it!! I left a reply there asking him if he had anything that might help our situation...

Maybe it's because we got home at ~1500 and I've not really done anything but look at legislation and the appeals procedure since, I think maybe I'll come back to it tomorrow!!

[Obie]

I accept that the EEA regulation is quite cumbersome and difficult to understand, and that on a literal reading, it may seem to preclude durable partner of British Citizen who are returning home from qualifying.
This is clearly wrong, and may amout to discrimination on grounds of nationality.

A returning national has rights under article 45 of the TFEU, just like any other EEA national. To withdraw their rights on the basis of a narrow minded interpretation of Singh, is clearly wrong. If the UK was under any illusion as to the scope and extent of Singh, then Eind should have well and truely erased those illusion.

I will suggest you appeal the decison, as every national courts are obliged to apply community law in its entirety, and to abandon any national rules that may seek to deprive community law of its full effect.

[Mark.Boats]

Hi Obie - thanks for your reply

I agree with everything you say, and understand how the EU law trumps UK interpretation. The problem is, the UKBA are so incompetent and slow I don't think they'll overturn the original decision and we'll have to go to court to argue our case

By the time the idiots have got round to that, 1st July will be here and Croatia will already be in the EU, we'll be stuck in a situation where we can't get a family permit as she's no longer a non-EU national, and we also can't get a work permit because my partner wouldn't qualify based on the UKBA's statement of intent on the accesion of Croatia

Ergo: We'd be screwed!! And the only way we could actually live in the UK and both work is by us getting married, which is something we always said we'd never do just for the sake of immigration as it would cheapen the entire experience that we only intend to do once in our lives...

How would you think the best way would be to word an appeal to steer the UKBA away from setting themselves up for another loss in court, with the associated cost, both monetary and in time...?

[ukforever]

Hi Obie - thanks for your reply

I agree with everything you say, and understand how the EU law trumps UK interpretation. The problem is, the UKBA are so incompetent and slow I don't think they'll overturn the original decision and we'll have to go to court to argue our case

By the time the idiots have got round to that, 1st July will be here and Croatia will already be in the EU, we'll be stuck in a situation where we can't get a family permit as she's no longer a non-EU national, and we also can't get a work permit because my partner wouldn't qualify based on the UKBA's statement of intent on the accesion of Croatia

Ergo: We'd be screwed!! And the only way we could actually live in the UK and both work is by us getting married, which is something we always said we'd never do just for the sake of immigration as it would cheapen the entire experience that we only intend to do once in our lives...

How would you think the best way would be to word an appeal to steer the UKBA away from setting themselves up for another loss in court, with the associated cost, both monetary and in time...?

they don't care about time or costs,its not their money its the tax payers money,they don't give a shit..they will drag you with the appeal for months and u can read about members of this forum,as a matter of fact one of them was battling for more than 7 months and at the end he got his family permit and as u said by the 1st of july,u will loose the advantage of getting your partner in the country as an non-eu citizen,what i suggest is for u,whether to try and apply again maybe from another country or try to seek admission at port in calais,or if u can board a plane which is unlikely because u are not married and not covered by eu laws concerning traveling with marriage certificate,or get married..!!
calais is more appealing for your case,i don't know if its the right option but considering the facts,u have little time and choice on how to proceed ..

[Mark.Boats]

Thanks ukforever

It does seem like we're in a catch 22 here. If we appeal on the basis that they misinterpreted EUlaw when they put reg 9 in the rules they could easily drag it out until she is an Eu citizen, and I assume no longer qualifies for a FP!!!

[wiggsy]

am i missing something... doesnt your family member gain the SAME rights as the EEA national upon return?...

therefore full work/etc rights just like you?

[vinny]

am i missing something... doesnt your family member gain the SAME rights as the EEA national upon return?...

therefore full work/etc rights just like you?

The reason for refusal is in this paragraph at the bottom of the first page (with my own bold added for emphasis):

Although you state that you are in a relationship with Mr XXXXX, I note that you are not married to him and neither are you his civil partner. Therefore, you are not the family member of Mr XXXXX for the purposes of the EEA regulations and you do not qualify for an EEA family permit on this basis.

Am I missing something here or have they fundamentally missed the entire section of the regulations relating to unmarried partners in a durable relationship with a qualifying person?

The UKBA does not consider unmarried partners to be family members.

[Mark.Boats]

Thanks everybody...

It appears our hand is forced then, we wanted to wait until after all of the immigration bullshit was dealt with before we married, and do it in the UK, but now it seems to be the only real way forwards...

[EUsmileWEallsmile]

@Mark.Boats, sorry for my post earlier, I had indeed meant to say that the UK interprets Singh in a narrow way. Singh predated the directive 2004/38/ec. The judgement was based on a case pertaining to workers.

The directive 2004/38/ec consolidated freedom of movement into one piece of legislation whereas before there were separate ones for workers; students and self-sufficient. It also introduced a category of "other family" member. The UK transposition (the regulations) are in many ways a copy of the previous regulations and I'm pretty sure treated Singh cases in a similar way; ie for family members of workers, but not "other family" members.

[wiggsy]

The UKBA does not consider unmarried partners to be family members.

no, but if they successfully gain the EEAFP - even after croatia join - then she will automatically be entitled to work etc as any other spouse? or am i wrong? - NATIONALITY IS NOT AN ISSUE... ETC? - can apply for an EEA FP even for an EU citizen, - Cant you?

[Mark.Boats]

The UKBA does not consider unmarried partners to be family members.

no, but if they successfully gain the EEAFP - even after croatia join - then she will automatically be entitled to work etc as any other spouse? or am i wrong? - NATIONALITY IS NOT AN ISSUE... ETC? - can apply for an EEA FP even for an EU citizen, - Cant you?

The UKBA seem to say on the family permit website that you can't:

What is an EEA family permit?
An EEA family permit is a form of 'entry clearance' to the UK (similar to a visa). It is for nationals of countries outside the European Economic Area (EEA) who are family members of EEA nationals.

[EUsmileWEallsmile]

No visa can be imposed on EU nationals.

[ukforever]

but i think that Croatia would have transitional period of 5 years like the one romanians and bilgarians had..so i don't think she would get to work anything she wants,also she need to ask for permission to work,like what the A2 countries citizens were asked to do when seeking work in the uk,but not anymore ,from the 1st of january 2014 they all have the right to access any work and free movement,there is no restrictions whatsoever after that date..

[Mark.Boats]

but i think that Croatia would have transitional period of 5 years like the one romanians and bilgarians had..so i don't think she would get to work anything she wants,also she need to ask for permission to work,like what the A2 countries citizens were asked to do when seeking work in the uk,but not anymore ,from the 1st of january 2014 they all have the right to access any work and free movement,there is no restrictions whatsoever after that date..

The Bill was signed into law at the end of January and the UKBA plan to restrict workers as you say

However, spouses of British Citizens will be exempt from the restrictions, the same way Bulgarians and Romanians are now

She will apply for a blue registration certificate which will demonstrate her right to work in the UK

[wiggsy]

No visa can be imposed on EU nationals.

but dependant EU citizens who dont excersise treaty rights need a RC? or do they? - a spouse who is "restricted" can apply for a FP which removes any restrictions due to their circumstances... cant they ? or?

[Directive/2004/38/EC]

No visa can be imposed on EU nationals.

but dependant EU citizens who dont excersise treaty rights need a RC? or do they? - a spouse who is "restricted" can apply for a FP which removes any restrictions due to their circumstances... cant they ? or?

EU citizens never ever require a visa (aka. FP) to enter another EU member state

[EUsmileWEallsmile]

In general, an EU citizen family member can apply for a residence certificate if they wish, but they don't have to. Things can be a little trickier for nationals of new member states due requirement for a work permit, but at the end of the day, they are EU citizens.