EEA Residence Card refusal

[phrathat]

We looked at the posts discussing similar to this problems but couldn’t find the answer.

My partner (non-EU national) applied for an EEA Residence Card for him as a confirmation of his right of residence in the UK on the grounds that he is in a “durable relationshipâ€

[thsths]

The HO official agreed that the provided evidence demonstrates that we’ve been in relationship for over 2 years but because my partner (non-EU national) was staying unlawfully in the UK at the time of application, the Resident Card was not issued. My partner was asked to leave the UK.

I am sorry that your application got refused. With the recent stance of "being tough on immigrants", the UK has tightened up any kind of corner case. It seems that they feel a refusal can be justified, and so you got caught up in this new development.

The issue is that the European right of free movement is not actually extended to partners of European citizens (or "extended family members" in UK terms). Instead, each state is asked to "facilitate entry and residence in accordance with its national legislation". But under the national legislation, in country application from overstayers are usually rejected. So there is a certain logic to it.

We appealed to this decision and have an AIT hearing next month. What kind of arguments shall we use to fight this case?

You should consult a lawyer about this. You could argue a number of points, depending on the exact reasons of refusal. For example the argument that you can live in another country is clearly bogus, as it is a flat out refusal of the European right of free movement. Under UK law it may be valid, but under EU law it is not. Depending on your case you could also claim that applying from abroad is an unreasonable obstacle.

You can find the UK law at http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary , and your case comes under "2.4 extended family members". I think there is also some case law from the ECJ which should be applicable, but I am not familiar with the details. But I found this article gherson on the subject, and a report for a similar case.

Tom

[phrathat]

Thanks for your reply.

I looked at the Gherson and HO websites and, if I’m correct, it seems that they must consider each case individually so it could go either way. I think we will try to find a lawyer to help us with the appeal.

Also, what could it be an unreasonable obstacle to argue against applying from outside the UK? Do you think that the fact that I’m also doing a degree in the UK (while working) could be used as an argument? i.e. that his deportation would create "an effective obstacle" to my exercise of Treaty rights?

Anyone knows the ECJ case law to point me into right direction?

Thanks again

[Wanderer]

Thanks for your reply.

I looked at the Gherson and HO websites and, if I’m correct, it seems that they must consider each case individually so it could go either way. I think we will try to find a lawyer to help us with the appeal.

Also, what could it be an unreasonable obstacle to argue against applying from outside the UK? Do you think that the fact that I’m also doing a degree in the UK (while working) could be used as an argument? i.e. that his deportation would create "an effective obstacle" to my exercise of Treaty rights?

Anyone knows the ECJ case law to point me into right direction?

Thanks again

I think the HO uses UK immigration law in lieu on EEA law when the applicant is out of status.

Best to apply from home country and get it over with.

[phrathat]

But if he goes back to his home country and applies there, will he get an entry visa without a doubt? Or is there still a risk of the application being rejected?

[thsths]

Best to apply from home country and get it over with.

Under UK law that would be my usual advice, but under EU law I am not so sure. I would certainly wait for the appeal, because I think there is a good chance that it is successful.

Another option for the OP would be to get a visitor visa for another European country, and then apply from there. The two issues are getting the visa, and will the application be accepted?

If you decide to go back, then you should do it before October, to avoid being caught in the overstayer ban.

And then there is the option of getting married (but not in the UK).

Tom

[phrathat]

I understand that the best thing to do is to get a lawyer, prepare for the appeal and see what happens.

Thanks again for your suggestions!

[tasha75]

We appealed to this decision and have an AIT hearing next month. What kind of arguments shall we use to fight this case?

phrathat,
I had my appeal last year and my barrister argued (and this was accepted by the judge), that since my partner (EU) hasn't been here long enough to acquire a right to permanent residence, and we are not married, hence there is no Immigration rule in respect of which I could seek entry clearance. But we also have children, so this played a big part in the appeal. We won the appeal on Human rights (family life) but using the European law and Baumbast and Chen case laws.

[phrathat]

Thank you tasha75,

that means that there is no UK immigration rule to let my partner stay in the UK but still could use EU law to defend our appeal. We thought that we had to do it under the EU law but wasn’t sure which arguments to use. Still looking for a lawyer to help us.

Does anyone know if there is a way of accessing past AIT cases?

[isceon]

why don t you get Ghersons&co to represent you?

[xhesika]

gherson are expensive and dont accept legal aid clients, and the person who has posted this topic is doing a degree so maybe she cannot afford them to represent her and her partner.

my advise is, take a trip down to your local citizens advice bureau, ask them A for some advise on your case, B if youre eligible for legal aid C if you are eligible for legal aid (even if youre not, you still get the first hour with any participating solicitor for free) for them to recommend a good solicitor.

[phrathat]

Just to let you all know that my partner got an EEA residence card at last:) It took us two years! Can’t imagine it's all over. Thanks everyone for support!

[Ben]

Just to let you all know that my partner got an EEA residence card at last:) It took us two years! Can’t imagine it's all over. Thanks everyone for support!

Congrats! Could you tell us how you won the appeal?

[phrathat]

Well, we didn’t. On the day of the appeal, we were told that the decision was withdrawn and that HO were going to look again at my partner’s case. And now they told us that they were issuing a residence card for him (still waiting for his passport though), apparently there was some development, in his favour, in the case law.

[Ben]

Well, we didn’t. On the day of the appeal, we were told that the decision was withdrawn and that HO were going to look again at my partner’s case. And now they told us that they were issuing a residence card for him (still waiting for his passport though), apparently there was some development, in his favour, in the case law.

Sounds like the Metock judgement saved the day!

[bebe2]

does this only apply to spouse ,what about extended family e.g cousin

[Ben]

does this only apply to spouse ,what about extended family e.g cousin

It applies to family members of a Union citizen.

The right of a national of a non-member country who is a family member of a Union citizen to accompany or join that citizen cannot be made conditional on prior lawful residence in another Member State

Whether the above reference to family members means only those described in Article 2(2) of the Directive, or whether it extends to those described in Article 3(2), I honestly don't know for sure. However, one would hope that when "family members" are referred to in a judgement of the ECJ, it would mean mean all family members, with no grey area.

Certainly the Irish Department of Justice are interpreting it to mean all family members (2(2) and 3(2)), but whether the UK is doing the same, I don't know.