EEA Family permit refusal

[guevara]

Hi guys my application for an EEA family permit was refused on the grounds of paragraph 12(5) of the EEA REGULATIONS 2006 - (5) (But an EEA family permit shall not be issued under this regulation if the applicant or the
EEA national concerned falls to be excluded from the United Kingdom on grounds of public
policy, public security or public health in accordance with regulation 21.)

I Appealed and i received a letter from the ECM in which he upheld the ECO's decision.

The ECM's decision was based on the fact that i served a sentence for fraud and that the rehabilitation of offenders act 1974 states that a person who has been detained during her majesty's pleasure for a term exceeding 30 months is excluded from rehabilitation.

May i also add that after my sentence (my only record- the judge also refused to recommend deportation but the home office went ahead with it) i was issued with a deportation order, in which i left voluntarily, i also stayed out of the UK for over three years. Consequently the deportaion order was lifted after a sucessfull appeal and i applied for an EEA family permit and was granted one which has since expired but when i applied for a second EEA permit i was refused.

The ECM has now forwarded my appeal to the AIT. Any help or suggestions on a way forward would be appreciated.

[Obie]

Firstly the ECO is right and wrong. However i think the law is on your side on this occassion.

It is Home Office policy to remove EEA nationals or their family member who have served a custodial sentence of 24 months or more for other offences and 12 month for Sexual, drugs or violent offences, under Regulation 21 , not national rules.

However they will need to satisfy them self that the threat you pose is Present, sufficiently serious, and affects one of the fundament interest of society. .

(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in
addition to complying with the preceding paragraphs of this regulation, be taken in accordance
with the following principles—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and
sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of
general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision.

The phrase ‘genuine, present and sufficiently serious threat’ is concerned with an existing or
perceived threat by an individual to members of the public in a Member State. Whether or
not such a threat exists is a matter for judgement in the individual circumstances of each
case. However, the following points should be taken into account:
• The phrase ‘fundamental interests of society’ is assumed to mean the values and moral
set up of society and takes account of those who wish to overturn society, such as neo-
Nazis and Islamic fundamentalists, and those who commit serious or persistent crimes.

If the deportation order has been successfully revoked, they cannot refuse you on that basis. You cannot refuse someone EEA family permit for previous conviction. The ECO has to provide evidence that your continue to pose threats to the UK, for the refusal to be lawful.

If they don't have such evidence, i am confident it will be overturned on appeal.

[guevara]

Firstly the ECO is right and wrong. However i think the law is on your side on this occassion.

It is Home Office policy to remove EEA nationals or their family member who have served a custodial sentence of 24 months or more for other offences and 12 month for Sexual, drugs or violent offences, under Regulation 21 , not national rules.

However they will need to satisfy them self that the threat you pose is Present, sufficiently serious, and affects one of the fundament interest of society. .

(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in
addition to complying with the preceding paragraphs of this regulation, be taken in accordance
with the following principles—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and
sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of
general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision.

The phrase ‘genuine, present and sufficiently serious threat’ is concerned with an existing or
perceived threat by an individual to members of the public in a Member State. Whether or
not such a threat exists is a matter for judgement in the individual circumstances of each
case. However, the following points should be taken into account:
• The phrase ‘fundamental interests of society’ is assumed to mean the values and moral
set up of society and takes account of those who wish to overturn society, such as neo-
Nazis and Islamic fundamentalists, and those who commit serious or persistent crimes.

If the deportation order has been successfully revoked, they cannot refuse you on that basis. You cannot refuse someone EEA family permit for previous conviction. The ECO has to provide evidence that your continue to pose threats to the UK, for the refusal to be lawful.

If they don't have such evidence, i am confident it will be overturned on appeal.

That is exactly what i told the ECO that the previous immigration judge had ruled that i wasnt a threat to society and he revoked the deportation order on those basis and i also addressed The phrase ‘genuine, present and sufficiently serious threat’ as written in the directive 2004 38 EC but the ECM then talks about the rehabilitation of offenders act, in the initial refusal letter from the ECO he was going on about consideration under paragraph 320 of the immigration rules but the ECM has since corrected that as an error because i told him that it was wrong but what knacks me is that why did they issue me with a previous EEA permit. They have no such evidence because i have stayed clean and learnt from my past mistake.

[Obie]

Absolutely. Previous conviction only counts, in as far as it shows a pattern of criminal behaviour. Because one's conviction doesn't become spent doesn't mean they pose a threat, utter rubbish.

The rules for custodial sentence threshold, before EEA family member can be considered for deportation were lowered quite recently, this nevertheless justifies his decision.

You don't meet the criteria, and the ECM are perfectly aware. They just want to continue wasting your time.

You should have counteract his argument that, EU rules doesn't allow a life time ban, and by him saying, because your conviction will never become spent you don't qualify for EEA family permit, is he essentially saying you are barred for a life time.

Perhaps you should show them a copy of the judges determination letter overturning the deportation order.


You situation has been assessed and deportation overturned, period.

Except new information comes to light. The refusal is unlawful and i am sure the AIT will see it that way.

They are simply trying to waste your time.

These people are truly wasting taxpayers money. Whats the point .

[guevara]

I sent the ECO a letter from the home office confirming the lifting of the deportation order, letters from the EU with regards public security and policy decisions and the AIT appeal judge's determination documents. Small minded incompetent officials, i am sure he wasnt too happy on being corrected on trying to use paragraph 320 and the fact that i told him that their refusal was illegal and based on misinterpretation of the law, they probably expected me to beg, idiots.

[Obie]

So basically they wrote on the refusal, that an unspent conviction precludes a family member from EEA family permit, under Regulation 12(5).

This is crazy.

Have you filled and sent the AIT 2 form for the appeal.

I am sure it will be overturned, and they know it. They are just seeking to wast time, and punish you for knowing your rights.

By the way, what country are you applying from, just out of interest, so i could note this behaviour for future reference.

[guevara]

So basically they wrote on the refusal, that an unspent conviction precludes a family member from EEA family permit, under Regulation 12(5).

This is crazy.

Have you filled and sent the AIT 2 form for the appeal.

I am sure it will be overturned, and they know it. They are just seeking to wast time, and punish you for knowing your rights.

By the way, what country are you applying from, just out of interest, so i could note this behaviour for future reference.

UK embassy,Dublin; yes i have filled out the A1T2 form
i would fight them all the way, thanks for the advice.

[Obie]

I have always thought, those guys at that particular embassy are a few fries short of an happy meal, and my belief has been validated.

Incidentally i have had few dealing with them in the past, and i must say it wasn't very pleasant.

Best of luck with your appeal. If your partner is with you and you have a compelling reason to visit the UK, then you can go without the permit and you will be fine.

[dublin3]

Dear you are in totally in same situation as I am but after the deportation I didn't apply yet but I will as soon as I will get my EU fam card.
Now I want to know that how did you apply to uplift your deportation order? because I was deported from UK as well so I think I need to do the same and how long did it take to uplift the order from the court?
it will be really helpful for me if you pass me this information.
Thanks!

[guevara]

Dear you are in totally in same situation as I am but after the deportation I didn't apply yet but I will as soon as I will get my EU fam card.
Now I want to know that how did you apply to uplift your deportation order? because I was deported from UK as well so I think I need to do the same and how long did it take to uplift the order from the court?
it will be really helpful for me if you pass me this information.
Thanks!

I applied directly to the home office for revocation of the deportation order, it was denied so i took them to the AIT and the judge ruled that due to my community rights and the fact that i was not a threat that theyhad to lift the order. you write to them applying to have the order lifted and make sure you tell them about your EEA RIGHTS;

[guevara]

I have always thought, those guys at that particular embassy are a few fries short of an happy meal, and my belief has been validated.

Incidentally i have had few dealing with them in the past, and i must say it wasn't very pleasant.

Best of luck with your appeal. If your partner is with you and you have a compelling reason to visit the UK, then you can go without the permit and you will be fine.

my partner has already fired off a stinker to the incompetent fools, i intend to travel via Belfast with my partner for xmas, not going to let the ignoramuses disrupt my plans.

[Obie]

Realistically speaking, the order should be revoked immediately when you make an application for an EEA family permit.

You only have to apply to the HO for it to be revoked, if it was originally issued on ground of public policy, public health or public security. If it was issued under national law and since then, you have acquired community rights, then there is no need to apply for revokation.

If the Secretary of State thinks, you still continue to pose a threat, and you conduct meets the threshold for refusal under the EEA rules, he will reissue a deportation under Regulation 21.

9.1 Deportation orders made on grounds other than public policy or public security
If the deportation order was clearly not made on any grounds of public policy or public security (see paragraph 8.3 above) and the subject has since acquired a right of residence under EC Law the order should be revoked immediately.
If the deportation order was made either on conducive grounds or on the recommendation of a court then it may only be maintained if this can be justified on public policy/public security grounds. This should be the initial consideration before taking into account factors set out below.

Good on your spouse.

[dublin3]

Dear you are in totally in same situation as I am but after the deportation I didn't apply yet but I will as soon as I will get my EU fam card.
Now I want to know that how did you apply to uplift your deportation order? because I was deported from UK as well so I think I need to do the same and how long did it take to uplift the order from the court?
it will be really helpful for me if you pass me this information.
Thanks!

I applied directly to the home office for revocation of the deportation order, it was denied so i took them to the AIT and the judge ruled that due to my community rights and the fact that i was not a threat that theyhad to lift the order. you write to them applying to have the order lifted and make sure you tell them about your EEA RIGHTS;

And can you please tell me how long did this whole process take in your case?
I am going to write a letter tomorrow and see what will be the outcome.

[guevara]

Dear you are in totally in same situation as I am but after the deportation I didn't apply yet but I will as soon as I will get my EU fam card.
Now I want to know that how did you apply to uplift your deportation order? because I was deported from UK as well so I think I need to do the same and how long did it take to uplift the order from the court?
it will be really helpful for me if you pass me this information.
Thanks!

I applied directly to the home office for revocation of the deportation order, it was denied so i took them to the AIT and the judge ruled that due to my community rights and the fact that i was not a threat that theyhad to lift the order. you write to them applying to have the order lifted and make sure you tell them about your EEA RIGHTS;

And can you please tell me how long did this whole process take in your case?
I am going to write a letter tomorrow and see what will be the outcome.

28-40 DAYS for letter writen to home office to be answered, if positive then you might get it lifted within 1 month, if negative then another 6-7 months for the appeal process to play out. Goodluck

[dublin3]

Cheers mate this is really very important information for me I try to find it on internet but couldn't get it what do you think what are my chances are my prison sentence was 9 months and it was for deception(carrying fake documents)
I am really worried about it.
Thanks again

[guevara]

Cheers mate this is really very important information for me I try to find it on internet but couldn't get it what do you think what are my chances are my prison sentence was 9 months and it was for deception(carrying fake documents)
I am really worried about it.
Thanks again

Dont worry about that, just post it to UK Border Agency, Revocation of Deportation Order, Lunar House, 40 Wellesley Road, Croydon, Surrey CR9 2BY. Make sure you send it by registered post because they tell a lot of porkies.

[TracyCK]

This is similar to what we are facing with Spain currently. Take a look at my last post in my current thread and here you will find links to 2 documents issued by the EU Commission and Courts that very clearly show that you have the law on your side.

The Guidelines for a better transposition of the Directive from March this year is priceless imo, and crystal clear in outlining where Member States are going wrong

The Case Law Judgement against Spain (3 years ago!) highlights exactly how this type of case is argued when Member States decide to make their own inerpretations of what are actually very clear guidelines. You can probably find a similar judgement against the UK, but the reasoning will be the same.

They have not documented WHY you are a current threat to Public Policy and therefore the refusal is utterly invalid.

Presumably, you have an EEA Family Member Residence Permit? This entitles you to travel with your partner anywhere in the EU without any additional Visa. The UK know this but still try to insist on application of this. You would be within your rights to simply travel there and argue your way in, but this is pretty scary unless fully informed of your rights with a contact number of someone offical who can help when they try to play hardball at the destination.

I would recommend sending your case to SOLVIT, perhaps they can get this resolved quickly - it seems pretty clear to me.

[guevara]

This is similar to what we are facing with Spain currently. Take a look at my last post in my current thread and here you will find links to 2 documents issued by the EU Commission and Courts that very clearly show that you have the law on your side.

The Guidelines for a better transposition of the Directive from March this year is priceless imo, and crystal clear in outlining where Member States are going wrong

The Case Law Judgement against Spain (3 years ago!) highlights exactly how this type of case is argued when Member States decide to make their own inerpretations of what are actually very clear guidelines. You can probably find a similar judgement against the UK, but the reasoning will be the same.

They have not documented WHY you are a current threat to Public Policy and therefore the refusal is utterly invalid.

Presumably, you have an EEA Family Member Residence Permit? This entitles you to travel with your partner anywhere in the EU without any additional Visa. The UK know this but still try to insist on application of this. You would be within your rights to simply travel there and argue your way in, but this is pretty scary unless fully informed of your rights with a contact number of someone offical who can help when they try to play hardball at the destination.

I would recommend sending your case to SOLVIT, perhaps they can get this resolved quickly - it seems pretty clear to me.

Yes it is similar apart from the bit were you have to apply to get your hubby's deportation order lifted, i think you would definetly need to do that before they would let him into Spain. I think with the Spanish side you would need to write them a letter with emphasis on your comunity rights and quoting 1 or 2 case laws.
Solvit is a waste of time, write directly to the EU office at JLS-CHAP@ec.europa.eu and sg-plaintes@ec.europa.eu

[guevara]

I would like to thank Obie for his help and advice, nice one Obie and stay blessed.. My appeal was allowed by the Honourable Immigration Judge and i intend to write to the Incompetent staff at Dublin Embassy to get my EEA family permit..
The UKBA needs to train its staff, no wonder the system is jammed up with unnecessary appeals and incompetent staff who are incapable of understanding simply laws or plain English.

[Obie]

I am totally pleased for you.

The refusal was rubbish in the first place, and they were just seeking to waste your time and cause undue hinderance to you.

I wish you all the best for the future. I am sure they will get to you soon.

You need not worry too much about getting to them.

These people are the true wasters of taxpayers money, pursuing these cases with little or no merit.

Enjoy your stay in the UK

[guevara]

I am totally pleased for you.

The refusal was rubbish in the first place, and they were just seeking to waste your time and cause undue hinderance to you.

I wish you all the best for the future. I am sure they will get to you soon.

You need not worry too much about getting to them.

These people are the true wasters of taxpayers money, pursuing these cases with little or no merit.

Enjoy your stay in the UK

Thanx a lot, really appreciated.