EEA Family permit got refused! confusing reasons

Hi everybody,

My husband has just gotten back a refusal for his application for an EEA family permit from the british high commission in Delhi (india). in advance sorry for the huge post, but both of us are totally freaked out now and dont know what to do.

A short overview of our situation:

I am a german citizen, he is indian, we just got married in india on the 25th october, where I have been residing as a student for almost 5 years.
we applied to go to the uk TOGETHER on the 29th of November this year, with the underlying purpose that I want to continue my studies there next year in september and we want to find jobs and settle in before I get admission in the university.

our supporting documents:
- covering letter explaining our relationship, purpose for going, what jobs we intend to take up, where we will stay, which course I want to join, how much our savings are
- relationship proof: photos, emails, wedding invitations etc
- financial proof: bank statements showing 17500 pounds in savings, sponsorship letter from my mother who is willing to financially support us should the need arise, her salary slips, employment letter
- print out of the course I want to join, print outs of job descriptions I have applied for and cover letters for the job applications (unfortunately none got a reply yet)
- letter from my husbands aunt, stating we can live in a separate room in her house in the UK, a utility bill in her name, her passport copy (she's a british citizen btw)
- marriage certificate, my passport copy
- print out of the e-ticket for both of our flights on the same date (29th november 2007)

now the reasons listed for our refusal are quite confusing:
"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 establishing the European Community in the United Kingdom. However I am not satisfied that you are lawfully resident in a Member State and thus have a right of movement as the family member of a European Economic Area National"

--> Now I am confused, if I have read the rules properly, this requirement of being lawfully resident in a Member state should only apply to non EEA family members who want to apply from within the EU? but we are applying from India!

"Furthermore, 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 establishing the European Community in the United Kingdom. You have not provided any satisfactory evidence to show that your sponsor is living and working in the UK. I am therefore not satisfied that the European Economic Area national of whom you are a family is in, or will be coming to, the United Kingdom."

--> First they say we have not provided proof of the sponsor living and working in the uk. as per the rules, it should not be required for me to be in the UK yet at the time of our application which is suggested in the sentence they wrote next; that we did not prove that the eea national is in or will be coming to the uk. we have given copies of our tickets! how else will we prove that we are going to travel there together???


"I have therefore considered whether you satisfy 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, were the EEA national a person present and settled in the UK."

-->firstly, again why does the eea national need to be present and settled in the UK already, whatever i read in the regulations, it says the eea national could be INTENDING to go to uk as well. so now they decided just out of the blue that eea rules dont apply? and the rest of the reasons for refusal are based in the immigration rules of the uk, not the eu?

they are giving 3 reasons furthermore why they refused our application:
- my savings are not enough to support both of us once i have to pay for my studies; we have clearly stated that we want to go BEFORE i study so we can get jobs there and this money is meant to support us BEFORE i study which is in almost one year
- we did not prove that the accommodation is big enough; this is not a problem, we can prove it in our next application, but what bothers us is that the ECO has just waved away the EEA related regulations and is giving reasons based on the UK immigration rules.
- refusing the application does not interfere with family life because we can continue to enjoy that in india.


I would like to request some of you, who I have found to be very knowledgeable on these topics in other posts on this board, to shed some light on this highly confusing and frustrating refusal letter and maybe give some tips how to go about reapplying or appealing (whichever is better given our situation)

Thanks so much in advance!

Laura

Hello - it doesn't sound like a justified refusal.

exactly what we thought, but how to counter it?

Considering the reasons given and the evidence provided, this refusal should be easily overturned at an appeal. None of the reasons they have given are legally binding. But, why did you mention that you were coming over for studies? Just working alone would have been enough.

yeah were considering appealing but from what I could find, it will take 3 months for the appeal to be heard and therefore we were wondering if we can just apply again touching upon those issues they mentioned in the cover letter which we will include, giving some extra clarifications and documents (more detail in mom's sponsorship letter explaining all of the costs for my education will be paid for by her), proof that the accommodation is big enough

but we dont really know what to do about the fact that they're not convinced were going together to uk if we are including both of our tickets!
and why do they expect me to be living and working in the uk if the rules say this permit is given even if the eea national "intends" to live and work in the uk..

oh and the reason for including the study thing is because we were paranoid that the person would then ask so why do u want to go to the uk specifically, not move somewhere else and work there.. cos i as such dont have any connection to the uk. so in the cover letter i said that i wanted to study a particular subject in an english speaking country.

and like iknow is because they may handle your application on the same basis as a spouse so ithink u should find out about the spouse visa requirements.

It is quite clear the the British High commission is ignorant of the actual free movement directives because they probably don't come across too many cases like yours.

The Directive states that

5)The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of ‘family member’ should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(6)In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.

http://eur-lex.europa.eu/LexUriServ/Lex ... 048:EN:PDF


You have every right of appeal qouting the above regulation.

If they still refuse to reconsider maybe you can try moving to Germany first on a spouse visa and then to the UK using the EEA permit. I know of atleast two other people who got married to german citizens in India and then moved to Germany without too many problems.

As you have been living outside the EEA, they are handling and assessing your EEA family permit application on the same basis as a spouse under 12(1)( b )(ii).

However, in CO (EEA Regulations: family permit) Nigeria [2007] UKAIT 00070, the AIT has found that this requirement is purely a creation of UK law.

vinny wrote:As you have been living outside the EEA, they are handling and assessing your EEA family permit application on the same basis as a spouse under 12(1)( b )(ii).

I would like to differ. IF the spouse is living outside the EEA area, the visa is considered under the EEA spouse visa, and not the UK spouse visa.Referring your first link,

If the application is made from outside the EEA:

* If the applicant cannot demonstrate lawful residence in an EEA Member State, which includes those applying from outside the EEA, they would also be expected to meet the relevant requirements in the Immigration Rules for leave to enter the UK as the family member of an EEA national. If they satisfied the Rules, they would still be issued with an EEA Family Permit.

In assessing an application, you should be satisfied that:

* the applicant is related as claimed to the EEA principal,
* any children over the age of 21 and other family members (other than the EEA principal's spouse and children under 21) are wholly or mainly financially dependent on the EEA principal or satisfy one of the other conditions for extended family members (see Annex 21.1). The children of any age of a student should always be dependent.

archigabe wrote: I would like to differ. IF the spouse is living outside the EEA area, the visa is considered under the EEA spouse visa, and not the UK spouse visa.

See also CO (EEA Regulations: family permit) Nigeria [2007] UKAIT 00070 (paragraph 6) on how Regulation 12 is normally interpreted.

In evil_grrrl666's case, she may have been considered under the requirements of paragraph 281, save for sub-para (vi), since if the family permit is granted, this is not considered to be "entry clearance" as defined by the Immigration Rules.

However, in my opinion, one is either married to an EEA national or not and, accepting the marriage to be genuine, it shouldn't matter in which country(ies) the parties have previously lived.

I'm not sure but probably this precedent may help: http://www.gherson.com/articles/new-ait ... -nationals

Hi, thanks for all your replies!

Indeed the british high commission considered our application under paragraph 281, they clearly stated that in the refusal letter they sent us.
Just out of curiosity, should such a letter be signed/stamped or at least on a letterhead from the british high commission? we just got normal a4 size printer paper, with no signature or anything on it. I was surprised to see this because I had seen refusal letters from other embassies before, through my line of work, which were on proper paper and stamped or signed.

Anyways. considering our situation right now, would you advise us to appeal or apply again?

we are currently thinking about getting a schengen visa to visit my mom in holland and applying again from there for the eea family permit, so certain stricter requirements dont apply to us (application from within the eea). we have thought about germany but the requirements for family reunion visas have become strict; they now require the applicant to know basic german; to prove this you have to show a certificate from goethe institute. there is no point in first teaching my husband german, giving a test, and then starting the application procedure for germany, when we dont even want to live there in the first place

regarding the article that the eea family permit is not really a requirement; yes i have read that before, only problem is the policemen at the delhi airport will not let anyone board a plane if there is no valid visa.

mastermind wrote:I'm not sure but probably this precedent may help: http://www.gherson.com/articles/new-ait ... -nationals

The actual case can be found on http://eur-lex.europa.eu/LexUriServ/Lex ... 01:EN:HTML , and it is indeed an interesting read.

If you want to reapply at the same time as you appeal, then you can do so.

If you'd like assistance, please do PM me.

Victoria