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EUSS for extended family

Use this section for any queries concerning the EU Settlement Scheme, for applicants holding pre-settled and settled status.

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe

Obie
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Re: EUSS for extended family

Post by Obie » Wed Jul 21, 2021 9:15 am

Did you apply for EEA family permit or EU settlement scheme permit?

Why did you not apply for EU settlement scheme permit?
Smooth seas do not make skilful sailors

Kash143
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Re: EUSS for extended family

Post by Kash143 » Wed Jul 21, 2021 9:20 am

I am going for the Judicial review, I hope they will withdraw their decision on initial correspondence otherwise I will take this to further. There is clear breach of withdrawal agreement and poor prep of home office personnel

Kash143
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Re: EUSS for extended family

Post by Kash143 » Wed Jul 21, 2021 10:32 am

Dear Obie I applied on 23rd of Jan 2020 when it was EEA permit and case is decided only in April 2021 in my favour

Obie
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Re: EUSS for extended family

Post by Obie » Wed Jul 21, 2021 10:37 am

I am referring to your mother's, not siblings.
Smooth seas do not make skilful sailors

Kash143
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Re: EUSS for extended family

Post by Kash143 » Wed Jul 21, 2021 10:40 am

I am bit surprised by their decision, after successful appeal, home office asked us to submit passports for visa pasting including my mother so it was the same appeal. We submitted the passports as per request of HO and they refused it :shock:

The decision to refuse your visa application has been overturned and we are now able to issue it.

Please submit your passport to the Visa Application Centre (VAC) where you made your original visa application. (USA, FIJI and New Zealand applicants, see Guidance Notes below.)

You must only attend the VAC during its opening hours. It also may be possible to submit documents via courier. Please see the Guidance Notes for advice on opening hours and addresses.

We will make every effort to issue your visa as quickly as possible, but we can only start the process when you have submitted your passport and the VAC has told us that they are holding it.

Obie
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Re: EUSS for extended family

Post by Obie » Wed Jul 21, 2021 10:56 am

They should have considered issuing your mother settlement scheme permit. A bit strange how things turned out.
Smooth seas do not make skilful sailors

Kash143
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Re: EUSS for extended family

Post by Kash143 » Wed Jul 21, 2021 11:12 am

Dear Obie I feel they should have considered all of them as there is clear law for applications before 31/12/2020. In my case
1) applied before Brexit
2) won the appeal
3) HO did not contest the decision
4) Asked for the passport submission
5) at the end they ignored appeal decision/ withdrawal agreement. I feel letters are mechanical and they just added relationship or readymade letters without reviewing whole case

tpveen
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Re: EUSS for extended family

Post by tpveen » Wed Jul 21, 2021 11:43 am

Agreed these emails are auto gernated, there is only to seen that sponsor has pre settle or settled status.i was applied in February 2020 with euss and appeal was allowed as extended family member in may 2021. So i got same email. If you care fully read there is trick answer

I am writing to inform you that whilst your application for an EEA family permit has been successful following your allowed appeal, the EEA family permit route ended on 30 June 2021. Any EEA family permit, regardless of the date it was issued, is not valid for travel to the UK after 30 June 2021. This includes a permit issued as a result of a successful appeal.

As any EEA family permit issued to you would not be valid, your passport will not be endorsed with an EEA family permit even though your application etc

So trick is mentioned if you see that there is mentioned If you do not meet the requirements and we are unable to switch your EEA family permit to an EU Settlement scheme family permit, we will contact you to let you know and advise of next steps.
So means they home office showing just making people change, to applicants brain, also before 30/12/20 sent application they will remain in probationary period which will force home office to switch in other categories, all is drama so relax.

euspouse07
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Re: EUSS for extended family

Post by euspouse07 » Wed Jul 21, 2021 11:57 am

@Kash143
After reading, it seems you have applied for EEA family permits for your mother, brother and sister-in-law.
I'm not surprised that they have issued those letter in respect of you brother and sister in law as a lot of people are getting the same worded letters.
They should have considered your mother's application under EUSS and should have issued one as she falls in that category of family members under EUSS. You can still make an application for her under EUSS. You can use a copy of the determination as evidence of dependency and relationship.

But the real question remains the same, what would be the fate of extended family members with the allowed appeal. Interestingly, a large chunk of appeals is waiting for hearing as EEA family permit applications in respect of extended family members were submitted till the 30th Dec 2020!!
Kindly update this forum about the update in your case.

euspouse07
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Re: EUSS for extended family

Post by euspouse07 » Wed Jul 21, 2021 11:59 am

@Kash143
After reading, it seems you have applied for EEA family permits for your mother, brother and sister-in-law.
I'm not surprised that they have issued those letter in respect of you brother and sister in law as a lot of people are getting the same worded letters.
They should have considered your mother's application under EUSS and should have issued one as she falls in that category of family members under EUSS. You can still make an application for her under EUSS. You can use a copy of the determination as evidence of dependency and relationship.

But the real question remains the same, what would be the fate of extended family members with the allowed appeal. Interestingly, a large chunk of appeals is waiting for hearing as EEA family permit applications in respect of extended family members were submitted till the 30th Dec 2020!!
Kindly update this forum about the update in your case.

Kash143
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Re: EUSS for extended family

Post by Kash143 » Wed Jul 21, 2021 12:06 pm

@euspouses

Dear I am going to contest their decision even in european courts as they are bound to withdrawal agreement and it can be challenged. I have sent emails to local MP, 3millions and will go for judicial review. It is total mockery of justice. I spent my time, money and I am emotionally drained now. I will request all of those who have similar decision we should raise it to EU NGOs like 3millions

Kash143
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Re: EUSS for extended family

Post by Kash143 » Wed Jul 21, 2021 12:07 pm

Hopefully by this weekend We will send the first letter of claim to HO and they have answer in 14 days I will update you all

tpveen
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Re: EUSS for extended family

Post by tpveen » Wed Jul 21, 2021 6:04 pm

Obie wrote:
Wed Jul 21, 2021 9:15 am
Did you apply for EEA family permit or EU settlement scheme permit?

Why did you not apply for EU settlement scheme permit?
Yes i did apply for eu settlement scheme in February 2021 and won appeal and i have submitted passport but i received same emails that we will review it that

If you do not meet the requirements and we are unable to switch your EEA family permit to an EU Settlement scheme family permit, we will contact you to let you know and advise of next steps.

So its auto gernated emails , because common sense explains that if they have our passports and will not endorsed permits, people will eat the name lord of justice, i hope this email will help you.

tpveen
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Re: EUSS for extended family

Post by tpveen » Wed Jul 21, 2021 6:07 pm

tpveen wrote:
Wed Jul 21, 2021 6:04 pm
Obie wrote:
Wed Jul 21, 2021 9:15 am
Did you apply for EEA family permit or EU settlement scheme permit?

Why did you not apply for EU settlement scheme permit?
Yes i did apply for eu settlement scheme in February 2020 and won appeal and i have submitted passport but i received same emails that we will review it that

If you do not meet the requirements and we are unable to switch your EEA family permit to an EU Settlement scheme family permit, we will contact you to let you know and advise of next steps.

So its auto gernated emails , because common sense explains that if they have our passports and will not endorsed permits, people will eat the name lord of justice, i hope this email will help you.
in last post date was not written correctly.

Obie
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Re: EUSS for extended family

Post by Obie » Wed Jul 21, 2021 6:14 pm

tpveen wrote:
Wed Jul 21, 2021 6:04 pm
Obie wrote:
Wed Jul 21, 2021 9:15 am
Did you apply for EEA family permit or EU settlement scheme permit?

Why did you not apply for EU settlement scheme permit?
Yes i did apply for eu settlement scheme in February 2021 and won appeal and i have submitted passport but i received same emails that we will review it that

If you do not meet the requirements and we are unable to switch your EEA family permit to an EU Settlement scheme family permit, we will contact you to let you know and advise of next steps.

So its auto gernated emails , because common sense explains that if they have our passports and will not endorsed permits, people will eat the name lord of justice, i hope this email will help you.
I did not ask you those questions.
Smooth seas do not make skilful sailors

Kash143
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Re: EUSS for extended family

Post by Kash143 » Wed Jul 21, 2021 7:20 pm

Dear Obie my application is lodged since jan 2020 and there was no gap in the process therefore i couldnt apply for the EUSS.
My question is can they apply these new laws to old application which are decided in favour?
Is there any provision in withdrawal agreement which says old application before 31/12/20 will be treated according to the free movement law?

Kash143
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Re: EUSS for extended family

Post by Kash143 » Thu Jul 22, 2021 9:21 am

https://www.legislation.gov.uk/ukpga/20 ... /index.htm


These articles provide that the restriction of a protected person’s entry or residence rights on the grounds of conduct committed before the end of the implementation period must be made in accordance with Chapter VI of Directive 2004/83/EC, and Article 5 of Annex I of the FMOPA. These articles also provide that protected persons can continue to be removed from the UK as a result of fraud and/or abuse of their rights, as is currently the case under the EEA Regulations 2016

Kash143
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Re: EUSS for extended family

Post by Kash143 » Thu Jul 22, 2021 9:27 am

Article 20


Restrictions of the rights of residence and entry


1. The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under this Title, where that conduct occurred before the end of the transition period, shall be considered in accordance with Chapter VI of Directive 2004/38/EC.

2. The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under this Title, where that conduct occurred after the end of the transition period, may constitute grounds for restricting the right of residence by the host State or the right of entry in the State of work in accordance with national legislation.
3. The host State or the State of work may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Title in the case of the abuse of those rights or fraud, as set out in Article 35 of Directive 2004/38/EC.Such measures shall be subject to the procedural safeguards provided for in Article 21 of this Agreement.
4. The host State or the State of work may remove applicants who submitted fraudulent or abusive applications from its territory under the conditions set out in Directive 2004/38/EC, in particular Articles 31 and 35 thereof, even before a final judgment has been handed down in the case of judicial redress sought against any rejection of such an application.

tpveen
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Re: EUSS for extended family

Post by tpveen » Thu Jul 22, 2021 12:14 pm

My application was on january 2020 and refused January 2020 for extended family member, I was also applied euss, but after submitting application there is nothing comes up that application is for euss on application form, only comes up with eea swiss family permit, so im February 2020 made an appeal which was heared in may 2021. After 14 days judge sent decision with allowed appeal. Than after further 14 days received email from home office submit that submit passport where initially i was made appication.

After further 3 weeks received this email from office as following.

I am writing to inform you that whilst your application for an EEA family permit has been successful following your allowed appeal, the EEA family permit route ended on 30 June 2021. Any EEA family permit, regardless of the date it was issued, is not valid for travel to the UK after 30 June 2021. This includes a permit issued as a result of a successful appeal.

As any EEA family permit issued to you would not be valid, your passport will not be endorsed with an EEA family permit even though your application was successful.

We will therefore review your circumstances to see whether you are eligible for an EU settlement scheme family permit instead. This route is not closing, and if you do meet the requirements you will be issued with a permit that is valid for six months to travel to the UK. If you do not meet the requirements and we are unable to switch your EEA family permit to an EU Settlement scheme family permit, we will contact you to let you know and advise of next steps.

We will contact you if we require any further information. We are working through applications as quickly as we can and will provide an update as soon as possible.

So even people did apply for euss or eea application form show only eea swiss family permit.
I think this could be a problem for people who applied after probationary period and got permits and they were only allowd up to 30 june 21. It is to inform you that home office hided many things and postponed applications to create difficulty for waiting of 30 june.

More over my mother who she is direct family member she applied euss on 28 june there was nothing came on application about that this application for euss, there was only eea swiss application , and after few weeks my mother received email that you applied for eea how ever we will see also in term of euss for your application.

So in my point of wiew these emails are auto generated and where people who have applied as extended family member up to probationary period and after allowed appeal asked for submitt passports
Will definitely overturned to euss. Because this will breech lord of justice and many people will go in judicial review or supreme court, where court can deal to home office. So applications who were applied prior to probationary period for eea will definitely have euss. That appeals went delayed or due to crona court of immigration were closed for 5 months than very much delayed because eea or euss had same. Slowly jome office ised to trick. Other side after allowed appeal asking for submission of passport doesn' make sense.
If they doesn't want to issue the permits. So these emails are auto gernated , and every one will have euss who applied until probationary period. I am not sure what was the last date of probationary period as
Home office changed the web pages time by time, I can just give a guess that probationary period was about October 2020. After that eea which were granted now must to be go back. Good luck for every one

Kash143
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Re: EUSS for extended family

Post by Kash143 » Fri Jul 23, 2021 11:39 am

Just need your suggestion before causing huge stir, I have started the legal process but at the same time I have sent an email to local MP and independent monitoring agency.( IMA) Should I wait for legal process out come before giving further details to the MP and IMA ? Will it affect the legal proceeding or positive impact on the case

euspouse07
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Re: EUSS for extended family

Post by euspouse07 » Fri Jul 23, 2021 9:35 pm

I believe you should explore all the options

Kash143
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Re: EUSS for extended family

Post by Kash143 » Tue Jul 27, 2021 5:04 pm

Successful appeal binding on Home Office
41.7 The Home Office is under a legal duty to give effect to the determination of the Tribunal: it is not entitled to reconsider the matter afresh (Boafo, R (on the application of) v SSHD [2002] EWCA Civ 44).

41.8 If the Home Office does not seek to appeal the determination, then the only basis upon which it can be set aside is if the Home Office uncovers 'fresh evidence … which is relevant, credible and not previously available with due diligence' (Saribal v SSHD [2002] EWHC 1542 (Admin)).

41.9 In SSHD v TB (Jamaica) [2008] EWCA Civ 977, the Court of Appeal said that an unappealed determination of the Tribunal was binding on the Home Office save:

... where there is relevant fresh evidence that was not available at the date of hearing, or a change in the law, and the principle has no application where there is a change in circumstances or there are new events after the date of decision (para 35)

41.10 In Chomanga (binding effect of unappealed decisions) Zimbabwe [2011] UKUT 312 (IAC), the Tribunal emphasised that in the absence of fraud or one of the exceptions in para 35 of TB (Jamaica) [2008] EWCA Civ 977 applying, it is not open to the Home Office to seek to make a new decision by reference to evidence which was available at the time of the Tribunal's determination, but which it failed to put in evidence before the Tribunal. In Mubu and others (immigration appeals – res judicata) [2012] UKUT 00398 (IAC), while rejecting the argument that there was any estoppel or application of the principle of res judicata, the Tribunal held that the Devaseelan [2002] UKIAT 00702 principles applied in such cases and that it was not open to the Home Office to seek to relitigate the same issue by reference to evidence which it could have put before the previous Tribunal had it acted with reasonable diligence.

41.10A The Tribunal in OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 00065 (IAC) noted that neither the First-tier Tribunal nor the Upper Tribunal (exercising its appellate jurisdiction) has power to direct the respondent to grant any particular form or duration of leave. The only action the Tribunal can take is to allow the appeal on the grounds specified in s.84. As such, where – as in that case – the Tribunal was given consent under s.85 (see further paras 5.5-5.6) to consider the fact that at the date of the hearing, the appellants met the Rules for ILR based on long residence, it could not direct that ILR be granted. The Tribunal further noted that since no application had been made to the Home Office under the long residence Rules (as the appellants had completed ten years' lawful continuous residence whilst the appeal was pending), an application would need to be made by the successful appellants to the Secretary of State for indefinite leave to remain (including the payment of any fee for that application). It went on to say:

37. Unless waived by the respondent, the requirement to make such an application is, thus, unaffected by the allowing of a human rights appeal. … in the absence of any policy to give successful human rights appellants a particular period of limited leave, all that the respondent is required to do is grant the appellant a period of leave that is sufficient to enable the appellant to make the application for indefinite leave to remain…

38. If an appellant, whose appeal has been allowed by reference to paragraph 276B, subsequently fails to make an application for indefinite leave to remain, then he or she will continue to be subject to such limited leave as the respondent has granted, in consequence of the allowing of the human rights appeal.

Kash143
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Re: EUSS for extended family

Post by Kash143 » Wed Jul 28, 2021 7:44 am

The presumption against the retroactive operation of legislation

186. At common law there is a presumption that a statute does not have "retrospective" effect. The statement in Maxwell on The Interpretation of Statutes, 12th ed (1969), p 215 is frequently quoted:

"Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication."

Obie
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Re: EUSS for extended family

Post by Obie » Wed Jul 28, 2021 7:51 am

Kash143 wrote:
Wed Jul 28, 2021 7:44 am
The presumption against the retroactive operation of legislation

186. At common law there is a presumption that a statute does not have "retrospective" effect. The statement in Maxwell on The Interpretation of Statutes, 12th ed (1969), p 215 is frequently quoted:

"Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication."
There is no retrospective effect given to statutory provision here. The provision giving effect was withdrawn and the Home Office are saying there is no provision to grant entry, due to repealing of the provision.
Smooth seas do not make skilful sailors

Kash143
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Re: EUSS for extended family

Post by Kash143 » Thu Jul 29, 2021 12:06 pm

Thank you for your letter before claim of 26 July 2021 in accordance with the
procedures set out in the pre-action protocol for Judicial Review in which you are
requesting the implementation of appeal decisions on the EEA family permit
applications dated 24 January 2021.
You have raised this PAP on behalf of your clients because they did not have appeal
decisions implemented on their EEA Family Permit applications.
Regarding applications and , your clients received
letters dated 20 July 2021, in which they were informed of the reasons why the
appeal decision on their EEA FP could not be implemented. They were also
informed that their applications were assessed under the EUSS Family Permit
scheme and they did not qualify.
As your clients were previously informed, the EEA family permit route ended on 30
June 2021. Any EEA family permit, regardless of the date it was issued, is not valid
for travel to the UK after 30 June 2021. This includes a permit issued as a result of a
successful appeal.
As the EEA FP route has now closed, we are unable to offer your clients documents
under the EEA FP scheme.
Your clients applied as extended family members on the EEA FP scheme. However,
their relationships to their sponsor do not allow them to qualify under the EUSS FP
scheme.
In their letter dated 20 July 2021, your clients were informed they do not qualify for
an EUSS family permit because they did not provided adequate evidence to prove
that they are a 'family member' as defined by Appendix EU - (a spouse; civil partner;
durable partner; child, grandchild, great-grandchild under 21; dependent child,

grandchild, great-grandchild over 21; or dependent parent, grandparent, great-
grandparent)- of a relevant EEA or Swiss citizen or of their spouse or civil partner.

If your clients still wish to travel to the UK, they will need to consider whether another
entry clearance route is suitable for their circumstances. Please advise your clients
to visit Gov.uk to find out more about the different entry clearance visas available.

However, it is noted that applicant mother applied with their relationship to
the sponsor listed as his mother. Their EUSS consideration notice has not
acknowledged this as defined by Appendix EU in error.
I have therefore highlighted this case to the relevant team to provide the applicant
with an updated decision notice related to the criteria for an EUSS Family Permit for
mother. They will provide this to your client as soon as possible.
However, as the EEA FP route has now closed, we are unable to offer your client
documents under the EEA FP scheme.
I trust that this response is acceptable, and you will now feel it inappropriate to
proceed to Judicial Review. Should you lodge a Judicial Review of our decision the
Secretary of State will fully defend their position and seek any legal costs in doing
so.
Yours faithfully,

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