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Residence card refused - PLEASE HELP to appeal

Use this section for queries concerning applications on any of the EEA series of forms, and also for applications for EEA Family Permits.

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

AndreG
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Residence card refused - PLEASE HELP to appeal

Post by AndreG » Wed Mar 20, 2013 2:59 pm

This is serious as if my wife is deported I may never see her again. Please help me!

I'm a 27 year-old Portuguese married in the UK since the 14th of December 2012 to a 27 year-old Iranian woman. We live in the same house since mid-July 2012.

I first came to the UK in 2004 did a course, master and am now finishing a PhD. I've submitted my thesis in February 2013 and am currently waiting for an oral examination. I do not have a job yet.
My wife first came to the UK on January 2012 to do a master and had a visa until January 2013, which rushed our decision to get married in the UK.

I've helped my wife apply for a residence card on January 2013. At the time, we submitted a EEA2 application form, a covering letter from me (the sponsor), both Passports, Marriage certificate, my European health insurance card (EHIC) (issued in the UK), letter from the University of Leicester showing that I was a student at the time, bank letters (mine and hers).

We received a letter stating this application was refused because:
- My wife did not provide evidence that her EEA family member held comprehensive sickness insurance in the UK.
- My wife did not provide evidence by means of a declaration or such equivalent means, that her EEA family member had sufficient resources not to become a burden on the social assistance of the UK during her period of residence.

This application failed because under Regulation 4 of the Immigration (EEA) Regulations 2006 section (bb)(ii) I, the husband, did not present proof that I could support myself during her period of residence.

I am feeling very guilty about this refusal as I had a EHIC issued in the UK rather than Portugal and because I have not mentioned that I have a portuguese scholarship that has provided me enough money for both me and my wife to remain in the UK until August/September 2013.

The appeal must be made on one or more grounds:
1 - that the decision is not in accordance with the immigration rules.
2 - that the decision is unlawful because it racially discriminates against you (my wife).
3 - that the decision breaches rights which you have as a member of an EEA National's family under Community Treaties relating to entry to or residence in the UK.
4 - that a discretion under the immigration rules should have been exercised differently.
5 - that a decision is otherwise not in accordance with the law.

A few things have changed: she now has a part-time job as a research lab technician and I, in spite of waiting for my oral examination, am no longer considered a student (although I can get a letter from the university explaining my situation).

We have a civil partnership and have not married in the church as my wife is a Muslim. If my wife is deported back to Iran and says that she married with someone while overseas the only thing I can do is present proof that I converted to Islam. I have no problem converting, but do not want to solve this in Iran as there are higher chances of refusal there.


I am lost about what to do. Should I get a Public access Barister? How much do they charge for a case like this?

Under what grounds can I appeal for my wife and what would change in the application?

Can I appeal under grounds (3) and (5)? Is deportation to Iran sufficiently dangerous?

With her visa currently expired (a part-time job is not sufficient to request a renewal of the visa and was allowed because she was married with me) and if the appeal is also refused can I request, as a last resort, that we both return to Portugal?

Thetruth007thetruth
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Re: Residence card refused - PLEASE HELP to appeal

Post by Thetruth007thetruth » Wed Mar 20, 2013 3:40 pm

You should get a Solicitor my friend. They charge up to £300 for sending appeal on your behalf and another £300 for Court hearing. A total of £600.

So long as you have a right of appeal you are likely to win the case too. Students are allowed to sponsor their partners.

sheraz7
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Post by sheraz7 » Wed Mar 20, 2013 3:46 pm

1st of all be clarified that as per EEA regulations a student/self sufficient EEA national need to possess private medical insurance for all of its family members in the host country. However EHIC issued by uk cannot meet this requirement despite the fact that if it being issued by the EEA national's own country then in this case it is acceptable as long as the intention of residence are temporary in host member state. If you no longer student then on what grounds you can appeal however, you can re-apply again if you have some savings or your non-eea national is working then on her income/saving you can become self sufficient and buy private medical insurance. Moreover, be remembered that under eea law the possession of visa is not essential as long as non_eea national is in relation with eea national who is excercising its treaty rights too.
Please donot send PM. Write in open forum to facilitate others too.
REGARDS

Jambo
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Post by Jambo » Wed Mar 20, 2013 3:52 pm

First, you can relax. You (and your wife) won't be asked to leave the UK.

Under EEA regulations, there is no requirement to hold a "visa". The Residence Card is just a confirmation of your rights. So the HO have refused to confirm your right. It doesn't mean you don't have the right to live in the UK. It is just that you didn't provide enough documents for the HO to confirm this right. Nothing to worry about.

Second, you can appeal (with or without a lawyer) or simply re-apply again. This time with the correct evidence to support your case. The only downside is another wait for several months...

Obie
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Post by Obie » Wed Mar 20, 2013 4:26 pm

It appears the decision may be wrong, it should be appealed.

It seem this woman is your unmarried partner as opposed to your wife?

If I am wrong, and you meant civil wedding, then she has automatic rights.

The situation of unmarried partner is different from that of a spouse, so in her case, a residence card is required.

The idea of a Public access barrister is good, provided you are able to file the notice of appeal and prepare the bundles.

I wish you all the best.
Black life matters.

Plum70
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Post by Plum70 » Wed Mar 20, 2013 6:06 pm

Obie wrote:It appears the decision may be wrong, it should be appealed.

It seem this woman is your unmarried partner as opposed to your wife?
Obie, the OP already confirmed that they are married:
AndreG wrote:This is serious as if my wife is deported I may never see her again. Please help me!

I'm a 27 year-old Portuguese married in the UK since the 14th of December 2012 to a 27 year-old Iranian woman.
This gives them a firm ground to proceed with an appeal OR simply reapply addressing the UKBA's points by providing sufficient evidence if funds covering them both as well as comprehensive sickness insurance.

icexxik
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Re: Residence card refused - PLEASE HELP to appeal

Post by icexxik » Wed Mar 20, 2013 6:15 pm

AndreG wrote:This is serious as if my wife is deported I may never see her again. Please help me!

I'm a 27 year-old Portuguese married in the UK since the 14th of December 2012 to a 27 year-old Iranian woman. We live in the same house since mid-July 2012.

I first came to the UK in 2004 did a course, master and am now finishing a PhD. I've submitted my thesis in February 2013 and am currently waiting for an oral examination. I do not have a job yet.
My wife first came to the UK on January 2012 to do a master and had a visa until January 2013, which rushed our decision to get married in the UK.

I've helped my wife apply for a residence card on January 2013. At the time, we submitted a EEA2 application form, a covering letter from me (the sponsor), both Passports, Marriage certificate, my European health insurance card (EHIC) (issued in the UK), letter from the University of Leicester showing that I was a student at the time, bank letters (mine and hers).

We received a letter stating this application was refused because:
- My wife did not provide evidence that her EEA family member held comprehensive sickness insurance in the UK.
- My wife did not provide evidence by means of a declaration or such equivalent means, that her EEA family member had sufficient resources not to become a burden on the social assistance of the UK during her period of residence.

This application failed because under Regulation 4 of the Immigration (EEA) Regulations 2006 section (bb)(ii) I, the husband, did not present proof that I could support myself during her period of residence.

I am feeling very guilty about this refusal as I had a EHIC issued in the UK rather than Portugal and because I have not mentioned that I have a portuguese scholarship that has provided me enough money for both me and my wife to remain in the UK until August/September 2013.

The appeal must be made on one or more grounds:
1 - that the decision is not in accordance with the immigration rules.
2 - that the decision is unlawful because it racially discriminates against you (my wife).
3 - that the decision breaches rights which you have as a member of an EEA National's family under Community Treaties relating to entry to or residence in the UK.
4 - that a discretion under the immigration rules should have been exercised differently.
5 - that a decision is otherwise not in accordance with the law.

A few things have changed: she now has a part-time job as a research lab technician and I, in spite of waiting for my oral examination, am no longer considered a student (although I can get a letter from the university explaining my situation).

We have a civil partnership and have not married in the church as my wife is a Muslim. If my wife is deported back to Iran and says that she married with someone while overseas the only thing I can do is present proof that I converted to Islam. I have no problem converting, but do not want to solve this in Iran as there are higher chances of refusal there.


I am lost about what to do. Should I get a Public access Barister? How much do they charge for a case like this?

Under what grounds can I appeal for my wife and what would change in the application?

Can I appeal under grounds (3) and (5)? Is deportation to Iran sufficiently dangerous?

With her visa currently expired (a part-time job is not sufficient to request a renewal of the visa and was allowed because she was married with me) and if the appeal is also refused can I request, as a last resort, that we both return to Portugal?

I am sorry to hear that your application was refused. Don't worry though - there are ways out of this. You cannot appeal this decision, you will have to make a new application.

1. Buy comprehensive sickness insurance. If you don't have it, send your VALID EHIC card, issued in PORTUGAL, not the United Kingdom, with an affidavit stating that you are in the UK temporarily. United Kingdom EHIC card is NOT VALID for the purposes of EEA2 application since you are relying on the NHS and they don't like it. Moreover, UK EHIC is not valid in the UK, only abroad.

2. Print off your bank statements, I am sure you have at least some money in the bank; show that you have sufficient funds to support yourself and your wife without claiming benefits. Alternatively, write an affidavit, stating that neither you, nor your wife will be relying on public funds during your stay in the UK. If you are no longer a student, you must be either self-sufficient, or actively seeking employment, send proof of that to the UKBA, jobcenter plus registration and proof that your CV is out there.

3. The decision made was in line with immigration rules, don't even think about appealing, it will take much longer than filing it again.

icexxik
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Post by icexxik » Wed Mar 20, 2013 6:18 pm

Obie wrote:It appears the decision may be wrong, it should be appealed.

It seem this woman is your unmarried partner as opposed to your wife?

If I am wrong, and you meant civil wedding, then she has automatic rights.

The situation of unmarried partner is different from that of a spouse, so in her case, a residence card is required.

The idea of a Public access barrister is good, provided you are able to file the notice of appeal and prepare the bundles.

I wish you all the best.
It seems the decision is correct. He sent over UK EHIC, which is rubbish. And he does need proof of sufficient resources as he is no longer a student. Needs to reapply.

Obie
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Post by Obie » Wed Mar 20, 2013 6:30 pm

Well you are perfectly entitled to your view. I am of the view that the decision is wrong.

This person came to the UK in 2004 and has been studying since.

In 2009, he acquired the right of permanent residence.

Prior to 2011, there was no requirement for a student to hold CSI, for their residence to be in accordance with the EEA regulations.

Notwithstsnding the fact that he produced the wrong document, that is immaterial as he is someone with a right of Permanent Residence. Therefore his wife is entitled to a Residence Card under Regulation 17 (1).

I am of the view that an appeal is quicker and provide more legal certainty quicker, than reapplying for Residence Card.
Black life matters.

icexxik
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Posts: 51
Joined: Wed Jan 02, 2013 12:22 pm

Post by icexxik » Wed Mar 20, 2013 6:37 pm

Obie wrote:Well you are perfectly entitled to your view. I am of the view that the decision is wrong.

This person came to the UK in 2004 and has been studying since.

In 2009, he acquired the right of permanent residence.

Prior to 2011, there was no requirement for a student to hold CSI, for their residence to be in accordance with the EEA regulations.

Notwithstsnding the fact that he produced the wrong document, that is immaterial as he is someone with a right of Permanent Residence. Therefore his wife is entitled to a Residence Card under Regulation 17 (1).

I am of the view that an appeal is quicker and provide more legal certainty quicker, than reapplying for Residence Card.
You are right in that due to PR, comprehensive sickness insurance is not required. The application however did not claim PR, nor he applied for it. If he is not claiming PR, he must produce sickness insurance, even if he had started exercising rights prior to 2011. As EEA2 is made at this time, the current regulations as to the status of the EEA national apply.

If we assume that he has PR, he must include evidence of 5 years treaty rights with the application. EEA2 form clearly mentions both points.

AndreG
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Thank you

Post by AndreG » Wed Mar 20, 2013 7:02 pm

Thank you all for your replies.
I and my wife had a civil wedding and we are married. It was my impression before getting married that she could stay in the UK as long as I could. The refusal letter from HO stated she should be given a letter mentioning a date to travel back to Iran but after re-reading everything with a cool head I paid more importance to the fact that no date was provided.

Could I please ask you also the following:
- Do I have to appeal at this stage? In other words, would my wife lose any marital rights from a failed application for the residence card?
- It was the residence card application that allowed her to get a part-time job. Is there a limit to how long she can stay without the card?
- If I struggle to find a job and need to return to Portugal can she travel with me?

I think I'll appeal as my wife wants a full-time job. If it is unsuccessful, I'll finish my studies, get a job and then have my wife prepare a new application.

Once again, thank you very much.

sheraz7
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Post by sheraz7 » Wed Mar 20, 2013 7:14 pm

I think OP's post still missing the information that whether he continued to be a student and was living in UK without any long absence during 2004-2009 in the perspective of determining PR.
Please donot send PM. Write in open forum to facilitate others too.
REGARDS

sheraz7
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Post by sheraz7 » Wed Mar 20, 2013 7:34 pm

@andreg
Donot be panic/afraid from refusal letter as it must be a standard refusal letter that cannot change EEA regulations that determine EEA and non-EEA nationals's rights. You have plenty of options either appeal, re-apply or even you can secure permanent residence if you prove that you were student during 2004-2009 without any long absence of more than 6 months in any year.
Please donot send PM. Write in open forum to facilitate others too.
REGARDS

AndreG
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Post by AndreG » Wed Mar 20, 2013 7:55 pm

sheraz7 wrote:@andreg
Donot be panic/afraid from refusal letter as it must be a standard refusal letter that cannot change EEA regulations that determine EEA and non-EEA nationals's rights. You have plenty of options either appeal, re-apply or even you can secure permanent residence if you prove that you were student during 2004-2009 without any long absence of more than 6 months in any year.
I've never been absent for more than 3 months. I don't have PR and was thinking of applying for dual nationality but finishing my studies and finding a job were my priorities. Marriage was a sweet complication to my plans.
Thank you :)

sheraz7
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Post by sheraz7 » Wed Mar 20, 2013 8:08 pm

In that case you already deemed to automatically got PR despite only not having its confirmation. Moreover, now you even not need to show any further treaty rights either appeal/re-apply.
Please donot send PM. Write in open forum to facilitate others too.
REGARDS

EUsmileWEallsmile
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PR or not

Post by EUsmileWEallsmile » Wed Mar 20, 2013 8:45 pm

AndreG, you may have PR already or you may not. You may need to fight to demonstrate that you have it. You may fail to prove you have it.

Generally, to achieve PR, one needs to have lived in the UK in accordance with the regulations for five years. For students, the requirements are to have been enrolled in a recognised place of study and to have sufficient funds plus comprehensive insurance (CSI). Absences of up to six months per year were allowed. Now, the UK did not enforce the requirement for CSI on students up to recently. After the date on which they enforced this, they stated that anyone who had applied (on EEA1) prior to the policy change would not require CSI. Those who had failed to apply would indeed require to have it.

Applying for an EEA1 was not (and is still not mandatory). It could be argued that CSI should not be required for those who were studying prior to the policy change. Equally, it could be argued that those that received it were lucky.

I am not aware of any case law that clarifies matters.

EUsmileWEallsmile
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Living in the UK in accordance with the regulations

Post by EUsmileWEallsmile » Wed Mar 20, 2013 8:49 pm

AndreG, for your wife to remain in the UK, essentially you need to live in the UK in accordance with the regulations. Even if you do not qualify for PR, here are some ways in which you can continue to live in accordance with the regulations.

You could get a job (workers).
You could continue to be a student (requires CSI and sufficient resources).
You could be self-sufficient (requires CSI and sufficient resources).

The above 3 options, are all pretty easy to do. Hope this helps.

ravii
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Post by ravii » Wed Mar 20, 2013 8:51 pm

Re apply with the required documents,is the best option.all other options are complicated.
Best regards

AndreG
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possible problem

Post by AndreG » Wed Mar 20, 2013 10:48 pm

I am quoting the refusal letter:

"Although you have submitted a European Health Insurance Card as your means to comprehensive sickness insurance cover in the United Kingdom,. This cannot be used as insurance cover it was issued in the United Kingdom and any claim on it would mean that your sponsor was in contravention of Section (bb)(ii) where "has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence.""

"It is therefore concluded that you have failed to provide sufficient evidence to demonstrate that your EEA family member is currently a qualified person in the United Kingdom as a student, as detailed under Regulation 6 in relation to regulation 4 of the Immigration (EEA) Regulations 2006."

"Regulation 26 of the Immigration (EEA) Regulations 2006 confers a right of appeal against this decision. However this does not mean that, if you choose to appeal, you will be entitled to remain in the United Kingdom whilst the appeal is being considered."

The following is scaring me.

"On the 11 June 2012 the Government announced changes to the Immigration Rules to unify consideration under the rules and Article 8 of the European Convention on Human Rights. The Immigration Rules set out the requirements for those seeking leave to enter or remain on the basis of their right to respect for private or family life by defining the criteria that a person is expected to fulfil in order to qualify this right to remain in the United Kingdom."

"These are set out in Appendix FM and paragraph 276ADE of the Immigration Rules, which can be viewed on our website:"
"http://www.ukba.homeoffice.gov.uk/polic ... ationrules"

"Consideration has been given to your family or private life established in the UK under Article 8 of the ECHR. The Immigration Rules now include provisions for applicants wishing to remain in the Unites Kingdom on the basis of their family or private life. These rules are located at Appendix FM and paragraph 276ADE respectively. If you wish the UK Border Agency to consider an application on this basis you must make a separate charged application using the specified application form (FLR(M) for the 5-year partner route, or FLR (O) for the 5-year parent or 10-year partner or parent route, or FLR (O) for the 10-year private life route). For more information please consult the UKBA website - www.ukba.homeoffice.gov.uk. Since you have not made a valid application for Article 8 consideration, consideration has not been given as to whether your removal from the UK would breach Article 8 of the ECHR. Additionally, it is pointed out that a decision not to issue a residence card does not require you to leave the United Kingdom if you can otherwise demonstrate that you have a right to reside under the Regulations."


- So the HO can take my wife away if I don't appeal or reapply, right?
- Seems reapplying would be simpler. I am deciding between getting a family member to prepare a Portuguese issued EHIC or a UK issued private insurance. It the EEA2 form it states I can apply with missing documents as long as I explain why and provide a date for submission. Should I reapply only once I have everything?
I don't want her taken while I'm reapplying...

Jambo
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Re: possible problem

Post by Jambo » Thu Mar 21, 2013 12:27 am

This is just a standard template. No need to worry about the wording. As explained, there is a difference between a family member having residence rights (which are obtained automatically once you exercise treaty rights which is easy to achieve) and proving they have those rights (for example to an employer). You failed to prove the rights but it doesn't mean you don't have those rights. The same applies to your wife.
AndreG wrote:- So the HO can take my wife away if I don't appeal or reapply, right?
No. They can't take your wife.
- Seems reapplying would be simpler. I am deciding between getting a family member to prepare a Portuguese issued EHIC or a UK issued private insurance. It the EEA2 form it states I can apply with missing documents as long as I explain why and provide a date for submission. Should I reapply only once I have everything?
I don't want her taken while I'm reapplying...
Better to reapply when you have all the documents. Don't worry. The HO won't knock tomorrow on your door to deport your wife.
Or appeal and gather the documents for the appeal.

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