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Refusals for EEA family permit

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

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Directive/2004/38/EC
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Post by Directive/2004/38/EC » Sun Jul 29, 2012 11:14 am

Actually I just reread it and I would personally send it.

I think it lays out the law. Many ECOs do not understand it, and so to not include this will likely cause another refusal on grounds like the past two refusals.

Is there any particular item you think is too harsh?

I hope it is not arrogant. But it is certainly not deferential.

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Post by Jambo » Sun Jul 29, 2012 11:41 am

In the case of Donald, I agree the text is not harsh at all. The ECO definitely earned it.

I feel the harsh tone in 12 ("please refer to..."), 14 ("should you have..."), 15 ("if you refuse, I will complain").

Also, the points are concise which is good but can also be read as you dictate them - "there is no requirement ...". Maybe better to say "Regulation xx doesn't require me ... ".

Just my own view.

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Sun Jul 29, 2012 2:03 pm

Thank you for the feedback. I have tweaked it to smooth the bumps.

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Post by EUsmileWEallsmile » Sun Jul 29, 2012 2:33 pm

Directive, regarding your letter.

1. I wouldn't be too inclined to offer up the possibility of a refusal under 12(5) - rare as these should be.
2. I might be minded to add a line reminding the ECO that they cannot apply the national immigration rules to EU applications.
3. I might consider adding a line inviting ECO to make contact should they have any doubts about the application or require clarification over anything (for some, getting to a VAC can be an adventure in itself - it's all fine saying that people can reapply, but in practice this can be difficult).

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Post by prince1475 » Sun Jul 29, 2012 3:42 pm

Does any one have email id of UKBA to complain against delay in decision of EEA FP,i have email on this id Chennai.visaenquiry@fco.gov.uk almost everyday once i cross 15 working days and with whatever changes jambo told me but didn't receive a single reply from them so now i want to complain to UKBA regarding this why they are taking so long even if their intention is to refuse the visa they should and give the valid reason but they should not take so long,just cant wait so long its killing me.
Last edited by prince1475 on Sun Jul 29, 2012 3:59 pm, edited 1 time in total.

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Post by Jambo » Sun Jul 29, 2012 3:54 pm


donald_f
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Post by donald_f » Mon Jul 30, 2012 10:58 am

Directive, Can you rephrase this point.

If this application is refused on Regulations other than those that apply to my applications under European Regulations, as was the case in the previous 2 applications. I will formally complain to senior management of UKBA, will formally complain to the European Commission, and will seek compensation. (See previous paragraph)

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complain regarding my case.

Post by donald_f » Mon Jul 30, 2012 11:36 am

Is this the link where I can submit a complain regarding my case.

http://ec.europa.eu/eu_law/your_rights/ ... rms_en.htm

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Mon Jul 30, 2012 12:26 pm

That is the place!

Like with anything immigration related, keep a copy of EVERYTHING you sumit

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Post by donald_f » Mon Oct 22, 2012 5:31 am

Directive/2004/38/EC wrote:I have edited my example letter some more. I think it is far from perfect, and I would appreciate any feedback on its contents. https://dl.dropbox.com/u/27885818/priva ... rdraft.doc

If I were you, which I am not, I would do a very simple reapplication. I would personal not answer any of the questions on the application about your or the EU citizens assets, nor about what either of you are presently doing, nor about what you plan to do in the UK. It is not relevant to an application, and I think you can see from the refusal letters that the information you provided was used against your application. I would answer these questions with "not material for this application".

I would also, if I were doing it, submit ONLY the following documentation:
- The Eu citizen's passport
- the two applicant passports
- the marriage certificate
- the child's birth certificate
- Nothing else!

I would also submit a letter from the EU citizen saying:
(1) I wish to exercise my right of free movement to go to the UK, and will do that with my family members.
(2) Attached is the required proof of their identity and of the family relationship.
(3) Issue the visa please.
I would not give them any story. They do not need it, and it can only be used badly. They just need to issue the visa, and the EU citizen's cover letter says that.
Have submitted a fresh application (third application) as per the draft letter above. Hoping to receive my EEA permit sticker this time....

Also there is an appeal against the decision by UKBA which is submitted and pending...
..

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Post by Directive/2004/38/EC » Mon Oct 22, 2012 7:08 am

You owe me a fruit juice if they finally issue the FP (as lawfully required!) this time. Please let us know how the new application and the appeal go.

For the appeal, did you request in writing that the appeal fee be refunded if the appeal was successful?

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Post by donald_f » Mon Oct 22, 2012 7:24 am

Directive/2004/38/EC wrote:You owe me a fruit juice if they finally issue the FP (as lawfully required!) this time. Please let us know how the new application and the appeal go.
Fruit Juice...anyday even without the FP..
Till the day I receive my FP this thread will be active
Directive/2004/38/EC wrote:For the appeal, did you request in writing that the appeal fee be refunded if the appeal was successful?
I don't think I have written that in my appeal, but I think as a policy if the decision is in my favor they refund the fees. I have read this somewhere.

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Post by Directive/2004/38/EC » Mon Oct 22, 2012 11:45 am

Please keep posting updates until both you have the FP and your appeal is finished.

Fruit Juice in India is bound to be better!

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Post by giorgosa » Tue Oct 23, 2012 11:26 am

The processing times that UKBA site refers to is working days?
http://www.ukba.homeoffice.gov.uk/count ... %20English

for example in Turkey there is a 4 day holiday this week, is it going to effect our application made last friday? I suppose ECOs follow only UK holidays...

thank you

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Tue Oct 23, 2012 12:32 pm

giorgosa wrote:The processing times that UKBA site refers to is working days?
http://www.ukba.homeoffice.gov.uk/count ... %20English

for example in Turkey there is a 4 day holiday this week, is it going to effect our application made last friday? I suppose ECOs follow only UK holidays...
Processing times are a very statistical average. Each individual case will be different.

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Post by donald_f » Tue Nov 06, 2012 3:00 pm

Bad News guys

Received 3rd refusal............

Same reason >>> "Qualified Person"

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Post by Jambo » Tue Nov 06, 2012 10:48 pm

donald_f wrote:Bad News guys

Received 3rd refusal............

Same reason >>> "Qualified Person"
Could you please share the text of the refusal letter?

Have you attached a letter to the application highlighting the mistakes in the previous refusal? Have you used the same solicitor?

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Post by donald_f » Wed Nov 07, 2012 4:53 am

Jambo wrote:
donald_f wrote:Bad News guys

Received 3rd refusal............

Same reason >>> "Qualified Person"
Could you please share the text of the refusal letter?

Have you attached a letter to the application highlighting the mistakes in the previous refusal? Have you used the same solicitor?
I have attached the same letter drafted by "Directive/2004/38/EC"
No, I have done this application on my own

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Post by donald_f » Wed Nov 07, 2012 4:56 am

Home Office UK Border Agency
Nationality: Indian
NOTICE OF IMMIGRATION DECISION In compliance with the Immigration (Notices) Regulations 2003 made under section 105 of the Nationality, Immigration and Asylum Act 2002
REFUSAL OF ENTRY CLEARANCE
Post reference: BOMBAY X To: Date of Birth:
Your Application
GV51 (EEA) (ERA) Rev 10/11
You have applied for admission to the United Kingdom by virtue of European Community Law 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.
The Decision

• Regulation 6 of the Immigration (European Economic Area) Regulations 2006 requires you to show that your sponsor is a "qualified person". The onus is on you and your sponsor to show that he/she is a qualified person. You have submitted no evidence at all that your sponsor is actively seeking employment in the UK. • I note that you have applied for an entry clearance on two occasions previously, which have both been unsuccessful. Your latest refusal of 16/07/2012 reads as follows: "Regulation 6 of the Immigration (European Economic Area) Regulations 2006 requires you to show that your sponsor is a "qualified person". The onus is on you and your sponsor to show that she is a jobseeker or has employment in the UK.
I note that you previously applied under the same category; that application was refused on 19/6/2012 for the following reasons:
"You have provided no evidence that your sponsor is searching for work, or any evidence of her ability to do so. In your application form you state that you are searching for work, and the job adverts you have supplied are for you.
Within your current application you have submitted a supporting letter from this states that, in part, the following documents have been provided:
Evidence of accommodation arranged for your stay; and Details of potential job opportunities for your sponsor and yourself.
It is not relevant to your application whether or not you are or have been seeking employment in the UK.

Your sponsor has qualifications in chemistry, and I note there are various printouts from job websites in this field. I also note that the accommodation evidence indicates that you intend to stay in London; however the various print outs from job websites cover the following areas in the UK: Runcorn; Oxfordshire; the North East; Harrogate; Cambridgeshire; the West Midlands; Lincolnshire; Gloucestershire; East Sussex; Derbyshire; Dartford; and Flitwick. It is reasonable to expect a person seeking employment in the UK to have a reasonable idea of where they intend to settle and live; the spread of locations of these jobs are indicative of someone simply printing off job advertisements to lodge with your application; there is no evidence whatsoever that your sponsor has actually applied for any of the employment positions in the UK. It is reasonable to expect your sponsor to show that she is genuinely a job seeker or has gained employment in the UK; this would include acknowledgement that she has applied for employment; there is no such documentation to show this.
I also note that you have faded to provide a copy of your sponsor's Home Office registration. This is a requirement under EEA regulations and following such registration your sponsor would be given an EEA residence permit card for the UK. There is no evidence to show that your sponsor is in the UK and/or is genuinely actively seeking employment.
Taking into account your circumstances, based on the information and documentation that you have provided and considering your application as a whole, I am not satisfied that you have adequately demonstrated that your sponsor is exercising his Treaty rights and therefore that you meet the requirements for non-EEA national spouse of an EEA National applying for an EEA Family Permit
I have also taken account of article 8 of the Human Rights Act. I consider that refusing this application is justified and proportionate in the exercise of the immigration control. I do not believe that refusing this application will interfere with family life, for the purposes of article 8 (1), as you can continue to enjoy that in India."

• I have noted the contents of your accompanying letter and the belief that you do in fact meet all of the requirements of Regulation 12:
"12.—(1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and—
(a) the EEA national—
(i) is residing in the UK in accordance with these Regulations; or
(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and
(b) the family member will be accompanying the EEA national to the United Kingdom or joining him there and—
(i) is lawfully resident in an EEA State; or
(ii) would meet the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom."

• Regulation 6 stipulates: "Qualified person"
6.—(1) In these Regulations, "qualified person" means a person who is an EEA national and in The United Kingdom as—(a) a jobseeker; (b) a worker; (c) a self-employed person; (d) a self-sufficient person; or (e) a student. (2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if—(a) he is temporarily unable to work as the result of an illness or accident; (b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and—(i) he was employed for one year or more before becoming unemployed; (ii) he has been unemployed for no more than six months; or (iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged; (c) he is involuntarily unemployed and has embarked on vocational training; or (d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment. (3) A person who is no longer in self-employment shall not cease to be treated as a self-employed person for the purpose of paragraph (1)(c) if he is temporarily unable to pursue his activity as a self-employed person as the result of an illness or accident. (4) For the purpose of paragraph (1)(a), "jobseeker" means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.

• In your previous and current application it would appear to be you whom is the jobseeker. You have again failed to provide any evidence that your sponsor is actively seeking employment in the UK or that she has the skills, experience or qualifications that would enable her to engage in employment in the UK. • As you are unable to demonstrate that your sponsor is a qualified person I am not satisfied that you are able to demonstrate that, as per the requirements of Regulation 12, your sponsor will be an EEA national residing in the United Kingdom in accordance with the EEA Regulations • I have also taken account of article 8 of the Human Rights Act. I consider that refusing this application is justified and proportionate in the exercise of the immigration control. I do not believe that refusing this application will interfere with family life, for the purposes of article 8(1), as you can continue to enjoy that in India.
I therefore refuse your EEA family permit application because I am not satisfied that you meet all of the requirements of Regulation 12 of the Immigration (European Economic Area) Regulations 2006.
Your right of appeal
You are entitled to appeal against this decision under Regulation 29 of the Immigration (European Economic Area) (Amendment) Regulations 2003. If you wish to appeal you must complete the attached IAFT-2 Notice of Appeal form. An information sheet has also been provided. Should you require further advice or assistance please visit www.iustice.qov.uk

If you decide to appeal against the refusal of this application, the decision will be reviewed with your grounds of appeal and the supporting documents you provide. You are strongly advised to complete all sections of the form and submit all relevant documents with your Notice of Appeal, as it may be possible to resolve the points at issue without an appeal hearing.
The completed Notice of Appeal form must arrive no later than 28 days after the date you received this notice and you must make sure that it is signed and dated.
Entry Clearance Officer: JM
Date of refusal: 05/11/2012
Date sent to applicant: How sent: [via VAC, postal service or courier]
If notice personally handed to you by an Entry Clearance Officer, please sign below: Applicant's signature: Date

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Post by Jambo » Wed Nov 07, 2012 7:45 am

Well it is clearly that someone in the post required significant training and is not familiar with EEA regulations. I believe they leave you no choice but an appeal.

I would write a harsh concise letter to the ECM for reconsideration before the appeal. Maybe there is someone with some sense there.

I would say:

8<-----------------------------
To: Mumbai, Visa Section Manager

Request for reconsideration before seeking legal actions & compensation
=============================================

I NAME applied for EEA Family Permit and was refused the 3rd time (see refusal letter attached). The main reason for refusal in my last two applications was failure to provide evidence that the EEA national is a qualified person. As I clearly explained in my cover letter in my last application and for the avoidance of doubt, I will repeat it again here -

IF THE EEA NATIONAL IS NOT RESIDING IN THE UK, THERE IS NO REQUIREMENT UNDER THE REGULATIONS FOR THE EEA NATIONAL TO BE A QUALIFIED PERSON WHEN APPLYING FOR AN ENTRY CLEARANCE.

Regulation 6 ("qualified person") doesn't need to be met for an entry clearance (if the EEA national doesn't reside in the UK).

I fail to understand how the application was refused on that basis. This seems to indicate a basic lack of understanding of the EEA regulations. This decision is unlawful and I will seek compensation as rejecting my application the third time based on a unlawful requirement prevents my wife, the EEA national, and the rest of the family to exercise our free movement rights allowed by the EU directives.

Before wasting my time and the courts time in the UK, I would request you or a senior ECO to review and reconsider my application again. I would request you to contact me on 01234456789 to let me know your decision within one week so I can know if I should start legal proceedings against this decision.

I will also make a formal complain to the UKBA European Policy Team and the European Commission.

Looking forward to hear from you,

8<----------------------

I would send it to the visa section email address and also fax it to them. I will address it the ECM / Visa section Manager.

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Post by keffers » Wed Nov 07, 2012 8:30 am

I would add:

IF THE EEA NATIONAL IS NOT RESIDING IN THE UK, THERE IS NO REQUIREMENT UNDER THE REGULATIONS FOR THE EEA NATIONAL TO BE A QUALIFIED PERSON WHEN APPLYING FOR AN ENTRY CLEARANCE. Under the legal principle, 'He who asserts must prove', I would therefore ask you to reference any part of the Regulations or binding judgment that states otherwise.

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Post by donald_f » Wed Nov 07, 2012 9:46 am


Jambo
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Post by Jambo » Wed Nov 07, 2012 9:50 am

I hope so. Make sure you address the email (either in the subject line or first line of the body) "To the attention of the Visa Section Manager".

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Wed Nov 07, 2012 2:02 pm

I whould note that "JH" has refused two of your applications. I would also request that any reconsideration of your application be done by different ECMs not involved with the original decision.

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Post by donald_f » Wed Nov 07, 2012 2:29 pm

Directive/2004/38/EC wrote:I whould note that "JH" has refused two of your applications. I would also request that any reconsideration of your application be done by different ECMs not involved with the original decision.
All 3 ECO were different JM, JH and AH. surprising all 3 have given the same decision.
Could it be that is a policy decision to refuse as many EEA application as possible.
Anyways what administrative action is taken against the ECO for disregard to regulations.

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