Unmarried UK/Non-EU couple: EEA2 vs FLR(M) vs ?

So we have a decision. Signed by the Judge only 11 weeks after the hearing, but it then took another 6 weeks before it was put in the post. UIT accepts all findings of fact, but says the legal arguments put forward by the first tier judge are insufficient. Original determination set aside.

So we have a new UIT hearing scheduled at the end of the month to argue again whether Surinder Singh should apply to Other Family Members. And if so, whether it is by construing the Regulations in the light of community law, or whether it is the doctrine of direct effect.

Another day in court today. No legal team helping me as I had decided to appear as a litigant in person. Two judges. Unbiased HOPO. Result: a ruling in favour of granting an EEA FP and a promise of a direction to give effect to the ruling. Unfortunately they did this by re-exercising discretion in our favour and have not ruled on the point of law, which was whether OFMs can benefit from the Surinder Singh principle. So it won't create a precedent that can help others.

Does anyone know what possibilities the Home office has for making another appeal?

By coincidence, last Friday we got an email saying they had reviewed the appeal and now intended to grant her visit visa.

By further coincidence there has been a decision on how Zambrano should be implemented, so I expect news on that appeal shortly.

Coincidence? "Once is happenstance, twice is coincidence, three times is enemy action" Ian Fleming.

I am pleased to hear the good news. It must be a huge relief. A proper written determination will be sent to you, which will detail the legal basis for their determination. It will be interesting to see its content.

Rolfus, thanks for the good news, and all the work you have clearly put in behind it!

Congratulations! Good to see that you were succesful after this long "journey". Thanks for the feedback.

It appears i was overjoyed to the point that i did not answer your question. I find it interesting that they decided to exercise the discretion themselves again. Under paragraph 86(3b) a court cannot exercise a discretion which the decision maker has not exercised first.

Considering that was the basis for which they found your previous judge erred in Law it is odd that the decided to do the same.

As i said one should wait for the promulgated decision, as it is bound to provide reasons and legal basis for their decision.

Yes the HO can appeal to the Upper Tribunal for permission to appeal to the court of appeal or they could appeal to the court of appeal directly, if permissions is refused

Still no written judgment from the Upper Tribunal, and of course no Family Permit.
But the good news is that UKBA have actually issued the visit visa that was originally rejected.(See post above for July 23rd).
This does prove that sometimes the refusal of a visa really is overturned on review by an Entry Clearance Manager.
The bad news is that it is only a six month visa. The letter says

The decision to refuse your application for entry clearance as a visitor to the United Kingdom has been reviewed and we are pleased to inform you that entry clearance has now been issued.
You applied for a two-year multi-entry entrance clearance but you have been granted entry clearance for six months.We are satisfied that entry clearance valid for six months is appropriate for your circumstances.
There is no refund available on your application for a two-year multi-entry visit visa and there is no right of appeal against this decision.
We regret that we are unable to enter into further discussions on this matter.

Can anyone think of a reason why it would be appropriate in her circumstances, or is this just UKBA being vindictive? It is hard to think of a better way of demonstrating a long-term connection to the UK than by being the mother of a British child.
Is there really no appeal? They call it a visit visa, but in reality it is a family visit visa. Is there an ombudsman who can look at this sort of decision?
So, one refusal has been overturned on ECM review, one refusal has been overturned by first the first tier tribunal, and now confirmed by the upper tribunal.There only remains the refusal of the application on the basis of Chen & Zambrano.
When we win that appeal, will my partner in future applications be able to answer the question "Has an application for a visa ever been refused" with a No, or will she still have to say Yes? Put another way, if an initial refusal is overturned on appeal and the visa granted, is it a refusal?
I have posted some thoughts on Zambrano on that sticky thread.

It may not satisfy you, but there is a UKBA complaints process. Link is in http://eumovement.wordpress.com/eu-coun ... d-kingdom/

I would also encourage you to consider doing a SAR to see what they wrote about the decision in her file.

I personally tend to think that if you have done a visa application, and from the original application a visa is eventually issued, than the application has been not been rejected. Another way to think about it that lots of visa applications are for a microsecond "mentally rejected" when the IO thinks there is not enough evidence of XYZ, and then they subsequently realize it is actually there. These are similar processes but with different players and different time scales.

Dear Directive,
Thank you for this advice.
By another curious coincidence we got the reply to our SAR the same day as the the visa.
There is nothing in it that is negative. Poor reporting of the court hearings by the HOPOs is the main feature.
I will try to use the complaint procedure.

You may also have a legal right to correct the information in the file... Not sure really how that works.

Good news about the unmarried partner application!

Have received a written decision from the Upper Tribunal. Our original appeal is confirmed as allowed. And the court has made a direction that a family permit under the EEA Regs be promptly issued.

The way they reached this decision is :
"We have in mind determinations such as MR and Or, Ihemedu, and Moneke. We conclude the discretion conferred by Reg 17(4) of the EEA regs should be exercised in favour of the Applicant, and we so exercise that discretion."
and
"in this case the exercise of discretion was not dependent on the outcome of the disputed issues of law about the construction and application of regs 8 & 9 of the EEA Regs."

At the hearing the HOPO agreed that discretion had previously been exercised, particularly when the first EEA FP was issued, so the court was entitled to re-exercise that discretion.

It remains to be seen whether the ECO will appeal to the Court of Appeal.

We do not intend to take up residence in the UK until 2013. This means that we will be seeking two renewals of the FP. Does anyone have a view on whether this decision will be binding on how UKBA exercise discretion at those renewals?

Best of luck to you. What I note is how long it can take to get recognition if one has to go to court.

That is very interesting. They are basing their decision on the fact that discretion was exercised in the past, so they could now exercise it themselves. That does not sound right, as we are talking about two separate application, made at two material time.

If you are going to set aside the first tier tribunal's decision, at least provide a valid reason for doing so. The reason given, was clearly in my view not valid.

They could have allowed it on the basis that, the Czech authorities has exercised discretion, and it will affect your ability to circulate within the European Union, or the principal of community law, which provides for protection of family life in order to prevent obstacle to treaty rights, will be seriously compromised, if the family life recognised in Czech republic was not recognised in the UK.

I don't think ECO will appeal against it, as it is first not reported, and secondly, the procedure is too long, and they will likely loose anyway.

I wish you all the best Rolfus, you and your partner has suffered a lot over the past year, you need a bit of laughter now.

It would be nice to know the Judge/s on the Chair.

If you don't want to display their names in public, perhaps you could PM me, and also the operating part of the promulgated decision.

Confusing developments on the Zambrano application.

On Oct 11th, the Clerk to the first tier tribunal wrote to Home Office and the ECO reminding them that they had not filed documents under AIT (Procedure) Rules 2005 Rule 13 by the specified date, Oct 10th.

This is code for saying there was no Entry Clearance Managers review letter, I think..

On Oct 19th, I got an email from the ECO saying

Your Application
On 25/05/2011 you 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. Your application was refused and a notice of refusal duly served.

The Decision
The notice of refusal of EEA Family Permit dated 07/06/2011 has been revoked. This notice serves as a revised notice. You are therefore entitled to a further 28 day appeal period in which to address the subsequent reasons for refusal outlined below.

The new decision simply recasts the previous decision in new language, still making no reference to either M (Ivory Coast) or Zambrano. And says a fee has to be paid to be considered as a Chen parent.

My interpretation is that this is simply a procedural device to cover for their failure to respond to the original appeal.

My inclination is to fill in the form of appeal attached to the new decision and send it to the clerk of the tribunal with a letter referring them to the same grounds of appeal as before, and asking the Tribunal to use its case management powers to proceed with a hearing on the original schedule. It is after all now six months since the electronic application was made!

Does anyone have any ideas? (I am doing this myself without legal advice).

I don't have any idea's rufus but because we are in the same position as you but without the surrender sing rights I am doing some research myself and if I turn anything up I will message you.

If you want more details on my case message me.

Basically I am a brit, my son is a brit, my grand daughter is a dual british/American citizen living in America with her mother. We are trying to establish whether zambrano should apply to entry clearance or not.

Will keep you informedl.

Love pads x

Received this gracious email from UKBA on Nov 2nd

Your application for EEA family permit received on 25/06/2010 is currently under review, following the outcome of your appeal. Your passport is therefore required, so that entry clearance can be issued without delay, if your application is approved. Please submit your passport at your earliest convenience to the British Embassy in Prague.

Kind regards

Given that the UIT has made a Direction to give effect to its ruling I wonder what they are reviewing and under what conditions they would not approve the FP. But at least it appears that they have decided not to apply for leave for a further appeal. Because of travel commitments etc the passport won't be submitted until the end of December. I wonder whether that will cause a new problem.

In the meantime I have renewed the Zambrano appeal as planned in my post of Oct 23rd.

I am thinking about implications of Dereci C-256/11, which clarifies some questions from Zambrano.

In paragraph 66 the Judges say

66. It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union status refers to situations in which the Union Citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.

This worries me, because the mother of my British son has a Residence card issued by the Czech republic as a family member (the mother) of an EEA Citizen. Czech law (The Alien Act) treats parents of EU citizens under 21 as family members. This is a more favourable provision of their national law.

So maybe she can't claim Zambrano residence in the UK because she could return to Prague. But then Mr & Mrs Zambrano could also have gone to live in Prague. So no Zambrano parent would actually ever have to leave the territory of the Union.

The opinion of AG Paolo Mengozzi is rather different. He says (my translation):

34. In fact, at first sight, concerning the situation of the family Dereci, there is no risk that the refusal of the residence card that the Austrian authorities have refused to grant to Mr Dereci could result in the wife and three young children of Mr Dereci, all four being Union Citizens, being deprived of the benefit of one of the rights listed in Article 20, paragraph 2, TFEU. In particular, concerning the right of free movement and residence in the territory of the Member States, mentioned in Article 20, para 2) sub para a), TFEU, Mrs Dereci, as an Austrian, can continue to benefit from a right to reside in Austria and can genuinely benefit from her right to free movement between the Member States. This is also true for her children who, owing to their age, could not exercise this right independently of their mother. Furthermore, and as opposed to the situation at the heart of the Zambrano case, it does not help the case that none of the four Citizens of the Union are dependent on Mr Dereci, a third country national. Finally, if Mr Dereci is not granted a residence permit, and/or is deported to Turkey, neither his wife, nor his children, unlike the children of Mr Zambrano, risk being obliged to leave the territory of the Union.

Article 20, paragraph 2, TFEU says:

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.

This immediately begs the question of what rights are covered by that "inter alia". But only (a) will be of practical value to Zambrano parents.

What I can't get my head round is that para 66 of the Dereci judgment (and the UKBA guidance) seem to say that a Zambrano application will not succeed if the parent and child can reside in any other union state. (And all such parents can reside in the Czech republic). But 20.2.a TFEU and the AG seem to say that a Zambrano application must succeed if it would otherwise deprive the citizen child of free movement rights to all union states.

Does anyone have any ideas?

Finally there is nothing in Dereci to comfort UKBA in their very curious suggestion that the Zambrano ruling only applies to sole carers. Do they think it was Mr Zambrano, or was it Mrs Zambrano who was the sole carer...

I had another day in court, first-tier tribunal, arguing for a family permit on the basis of Chen and Zambrano, but also on the basis of the mother as an extended family member. The judge was not unsympathetic, but his written ruling will be the test! Probably early in January.

Rolfus wrote:I had another day in court, first-tier tribunal, arguing for a family permit on the basis of Chen and Zambrano, but also on the basis of the mother as an extended family member. The judge was not unsympathetic, but his written ruling will be the test! Probably early in January.

I have no words to express what I feel about UKBA`s attitude. What exactly are they traying to achieve?
You have a partner since a few years plus kid so it is clear you marriage is genuine. They can allow non EEA family of EEA nationals on EEA FP by an accelerated procedure but not some one who is a family of a British national. This is just a joke and I feel there is no EU rights, Human rights or what so ever babble the EU offers. I genuinly feel sorry for the situation you are in and I hope UKBA changes their attitude to the family of British National returning home. You deserve a medal for staying so strong while going through this mate.

Good News! My partner has finally got an EEA Family Permit stamped in her passport. Only18 months after the initial refusal!