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

Seven weeks ago my partner submitted three applications: renewal of EEA FP as partner; renewal of EEA FP as parent; one year visit visa.

Today passport returned (two weeks of insistent requests to Worldbridge about the delay produced no information whatsoever).

The two EEA FPs were renewed, which is not surprising in view of the court judgments.

Visit visa refused. €340 up in smoke!

I really hadn't expected this to be refused, and wrongly thought that the appeal possibility for family visit visas had already been abolished, so selected general long term visit visa. But specified that one of the purposes was for my partner to visit her mother, now resident in the UK.
Additional information stated

This request for a general visitor visa is made to allow me to visit the UK unaccompanied by either my son or my partner. I will need to visit for job interviews and my mother’s health is such that I may need to visit at short notice.

Was this an appealable visit visa??? It also now costs £140 to fight to avoid having to give details forever of a visa refusal!! Even to get to the ECM review stage at which they conceded last time.
What is interesting is that the grounds of refusal are essentially the same as posted above on June 20th 2011. -

You were granted two permits for Family Member od EEA National to accompany your son and your unmarried partner...with a view to long term employment...your family has consistently maintained intention to move back to UK in near future...I am not satisfied that you are genuinely seeking entry as a visitor for the limited period as stated by you or that you intend to leave thereafter. I am therefore not satisfied that paragraph 41 (i) and (ii) are met.

This is what the UKBA site currently says

Do you need an EEA family permit?

A non-EEA family member of an EEA national will need to obtain an EEA family permit before travelling to the UK if they are:

coming to live with the EEA national in the UK.

The non-EEA family member must be travelling to the UK:

with the EEA national; or
to join the EEA national here.

If the EEA national is outside the UK and is not travelling with them, the non-EEA family member must instead apply for a visa (if they need one) before they can come to the UK. For more information, see the Do I need a visa? page.

These are the Immigration rules on which she was refused

41. The requirements to be met by a person seeking leave to enter the United Kingdom as a general visitor are that he:

(i) is genuinely seeking entry as a general visitor for a limited period as stated by him, not exceeding 6 months or not exceeding 12 months in the case of a person seeking entry to accompany an academic visitor, provided in the latter case the visitor accompanying the academic visitor has entry clearance; and

(ii) intends to leave the United Kingdom at the end of the period of the visit as stated by him; and does not intend to live for extended periods in the United Kingdom through frequent or successive visits; and

What does anyone think is going on? The ECO seems to think that my partner would choose to enter the UK on a visit visa, overstay, abandoning her British son and British partner, and forego recognition of her medical degree in the UK, rather than use one of her two EEA family permits to enter and practice medicine, with her family. Presumably he does not understand that an EEA family permit bestows no rights: it merely attests to the existence of a continuing enforcable Community right...

How could any holder of an EEA FP ever successfully apply for a visit visa?

More immediately: I interpret Aladeselu (TA) & Ors (2006 Regs - reg eight) Nigeria [2011] UKUT 253 (IAC) (01 July 2011) as having established that an EEA FP holder can travel in advance of the family member, and be joined by them later. Is that how UKBA interprets it?

If so, does she need a visit visa at all?

What does it even mean to apply for two EEA FPs at once, and be granted them? I do not understand.

And why also apply for the visit visa? Because you will not be travelling to the UK?

Hello old friend!

EEA FP number one is as my unmarried partner (Surinder Singh). It means we can travel together to the UK for visits, and move together to live & work there.

EEA FP number two is as the mother of our son (Zambrano). It means that mother and son can visit the UK without father, and could still move and live there if I got run over by a tram.

The visit visa allows (would allow) my partner to visit her mother without either of us, for example if she is taken suddenly ill during term time. Father could look after son. Also necessary to allow travel to attend job interviews prior to moving.

I agree that it is daft that UKBA cannot issue one FP specifying to accompany partner or son...

On current plans mother & son will be resident in UK from Sept 1st 2013, I will follow in a few months after winding up some business issues, selling our flat etc. This seems to be exactly that which is forseen in Aladeselu 19

We discussed with the parties the hypothetical example of a Union citizen who would be deterred from taking up an employment contract in a host Member State starting in the winter unless he could arrange for dependent members of his household to start school in the host Member state at the beginning of the preceding Autumn term.

So there should be no problem with mother travelling alone to the UK on Friday on her EEA FP, with son and myself only joining after necessary arrangements are in place?
In reality we will all need to travel back and forth many times over the next eight weeks, juggling a number of tasks and priorities.
I can't see any problem with this on the Aladeselu principle, but it would have been comforting for her to have the visit visa because every solo entry will run a risk of lengthy formalities.

The directive is written in terms of the family member travelling with or joining the EU citizen. So, under EU law, I think you may have troubles if they travel ahead.

That said, there is no particular restriction on you living in BOTH the UK and Europe. You can go to the UK with your family, and then also go back to Europe to finish up and put away.

So, I have paid £140 for the privilege of appealing. It appears that this is definitely a family visit visa. At least as this is now our fourth appeal (all others successful) I know the ropes and won't have to pay for legal representation.
I have asked the Tribunal to make an appropriate Direction to prevent the ECOs from using this flawed logic yet again to refuse a visit visa, following the abolition of the right of appeal.
I have also asked the Tribunal to make a fee award for the £140 to be returned.
If it gets to court I will ask the Tribunal to exercise discretion that the visa should be for the 12 months applied for.
What will probably happen is that the ECM will, on review, or perhaps only on the morning of the Tribunal hearing, withdraw the rejection and grant a 6-month visit visa.
They will do this to avoid the statistic of losing an appeal; and to avoid having to return the £140, and to avoid a Directive binding their future decisions.
The overall effect is seriously unjust. After appeals are abolished my partner will be unable to apply for a family visit visa without the near-certainty that it will be rejected yet again on grounds that would not stand up on appeal.
It appears from our example that once a visa has been refused, it doesn't matter whether it is overturned on appeal, the ECOs will still reject out of hand any future application. Has anyone collected statistics, or experiences, on this to see if it is true?
Is my partner the subject of some malicious and personal campaign? I have got her file under the data protection act procedure and there s nothing in it that would give grounds for all these refusals.

Rolfus wrote:I have got her file under the data protection act procedure and there s nothing in it that would give grounds for all these refusals.

Was there any interesting or unusual content of any sort in the file? Was it complete?

Dear Directive,
I haven't made a new application, I am referring to the information I received in Oct 2011 that we discussed on this thread then. There is nothing to explain this behaviour.
Looking back reminds me of how much effort we have made to have a visit visa covering 2013. My partner applied in 2011 for a two year visit visa and paid the substantial fee. Rejection, followed by apeal, followed by ECM withdrawing refusal and granting a visa but for only six months.
So we have had to make (and pay for) a new application covering the same period. Refusal, appeal - with fee. We shall see what happens.
But it is absolutely absurd of them to refuse a visit visa to my partner at the same time as stamping in not one, but two, EEA Family Permits. She has a right to live and work in the UK unless both I and our son are killed in the same plane crash! And yet they refuse the visa on the basis that she doesn't intend to make a genuine short visit and effectively accuse her of lying on the form. If it wasn't a short visit she could use the EEA FP!
I really want this to go to the Tribunal so that I can gat a Direction to stop them doing this again.

The First Tier Tribunal directed the Respondent, the Visa Officer, to file the notice of decision, reasons, etc , with a copy to the Appellant, by November 14th.

Nothing received from either the visa officer directly or the Tribunal.

Does anyone have any advice on what should happen now? Can I make an application for the appeal to be allowed by default?

Hearing for the family visit visa appeal is set for April 4th. There has been absolutely no response from the ECO to the Orders of the Tribunal to submit documents.

Hearing was today.
It turns out that the ECM has been trying to withdraw the decision and grant a visa, but hasn't formally notified anyone, so the hearing went ahead.
Reserved judgment.
The Judge said that he thought that a general visitor visa could not be used to attend job interviews, but that he wanted to check. I can't work out why, any suggestions please?
If you can't use a visit visa for a job interview, and you can't use your EEA Family Permit because you aren't accompanying or joining, what is the correct visa to apply for?
The right to enter is separate from Community rights once you have entered. So if you enter with a visit visa, can you use community rights to attend an interview, even if that would not be permitted to do so on the basis of the visit visa if you did not have community rights?
How many angels can dance on the head of a pin?

Determination promulgated. Appeal allowed with costs. I wonder how long it will take for the HO to comply with the Direction to send the money?

Judge says "I was unable to understand the ECOs logic in refusing this application when there was an extant EEA FP".

Nothing further on whether a visit visa allows the holder to attend job interviews.

Meanwhile, 30 days ago, while processing a new EEA FP application, the ECO wrote saying he could issue the old one-year visit visa, if we withdrew the application for the FP. No explanation why he couldn't do both. Yes please, we replied by registered post. 30 days later, passport still not returned, travel dates missed, tickets lost etc.

Is this spite, because we have now won five appeals, or is it incompetence?

There is a new UIT determination confirming that unmarried partners are covered in Surinder Singh cases.

https://ukvisaandimmigrationforum.files ... o-cain.pdf

It is unpublished, so of limited value. I suspect that the unpublished case referred to in the arguments was mine, as one of the participants is the same.

On another subject, despite repeated reminders the Home Office have still not reimbursed the appeal fee from the last case they lost.

My partner has this month applied for a fourth renewal of her EEA FP as a partner. If they refuse it, I will try again to get the question of whether Surinder Singh applies to extended family members referred to the ECJ. Last time we made that request the judge said it was not necessary.

Unfortunately, IA040012013 [2014] UKAITUR IA040012013 (5 August 2014) did not reach the same conclusion.

Rolfus wrote: On another subject, despite repeated reminders the Home Office have still not reimbursed the appeal fee from the last case they lost.

Perhaps you should initiate a small claims against the Home Office. One of my client had to do that before his appeal fee was reimbursed.

Rolfus wrote:
My partner has this month applied for a fourth renewal of her EEA FP as a partner. If they refuse it, I will try again to get the question of whether Surinder Singh applies to extended family members referred to the ECJ. Last time we made that request the judge said it was not necessary.

Well it is the Upper Tribunal that can make references , mostly, although i cannot see an authority to fully back that.