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Advice needed: Yet another refusal of EEA FP application

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

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a.s.b.o
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Advice needed: Yet another refusal of EEA FP application

Post by a.s.b.o » Thu Apr 30, 2015 6:32 pm

My hurdles with UKBA, UKVI, UK.B.S continue. Below is the account.

Background: me - Irish citizen, employed/self-employed, exercising treaty rights in UK; my parents - Russian nationals, in possession of EEA Fps, which were granted following the first-tier appeal in UK. The judge accepted financial and emotional dependence and made the ruling, which was not challenged by HO. They currently have 1 months on their FP's to enter UK.

Current application: for my 86 y.,, wheelchair bound and Spam dependent grandfather living with ma parents. He was ill to apply last time round, he is back from hospital now, applied and was promptly refused. He lives in my apartment, can afford his treatment course based on my donations and is full-time dependent on my mother (who is his f/t carer and as a reminder, my dependent family member).

ECO took the position and which they I cannot comprehend. I attach the text of the decision. It is my understanding that ECO once again confused immigration rules with EEA legislation. It is also my understanding that we provided evidence that my grandfather being cared for my mother, who herself is my dependent family member, qualifies a person for EEA FP.

Many thanks for critical suggestions. I am mindful of how fragile my grandfather is and the ploy to stall re-location of my parents to UK (given the care he needs and the remaining duration of their visas). I am looking for the most effective ways of addressing and repelling this decision. Thanks

Note 1: I note the first mistake - 'extended' member is used instead of 'direct' family member.
Attachments
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2015-04-30 19-28-49 photo-2.JPG.png (459.78 KiB) Viewed 1642 times

el patron
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Re: Advice needed: Yet another refusal of EEA FP application

Post by el patron » Fri May 01, 2015 11:08 am

No mistake in my view, a deliberate attempt to frustrate, I have seen the extended family member refusal grounds used in too many direct family member applications for it not to be a deliberate step designed to obstruct Treaty rights.

a.s.b.o
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Re: Advice needed: Yet another refusal of EEA FP application

Post by a.s.b.o » Fri May 01, 2015 12:09 pm

Thank you. I am sensing that it is a deliberate attempt to frustrate. Would this be something that MIGHT BE repaired at the eECM review?

el patron
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Location: Northern Ireland

Re: Advice needed: Yet another refusal of EEA FP application

Post by el patron » Fri May 01, 2015 12:34 pm

It should be as no decision has been given upon the application as submitted, rather you got a decision in respect of an extended family member, if they want to refuse the justification should be based on the correct category of application. But as you have experienced, the quality of decision making can be poor/bizarre even at the ECM level.

a.s.b.o
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Re: Advice needed: Yet another refusal of EEA FP application

Post by a.s.b.o » Fri May 01, 2015 12:44 pm

el patron wrote:It should be as no decision has been given upon the application as submitted, rather you got a decision in respect of an extended family member, if they want to refuse the justification should be based on the correct category of application. But as you have experienced, the quality of decision making can be poor/bizarre even at the ECM level.
El Patron, you are a chest of wisdom but I am too slow to capture it all. What would be your suggestion to approach this situation?

Many thanks

el patron
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Posts: 335
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Location: Northern Ireland

Re: Advice needed: Yet another refusal of EEA FP application

Post by el patron » Fri May 01, 2015 12:57 pm

If the ECM does the correct job on review you should get a decision on Regulation 7. In some circumstances a reapplication could be a further option, but if your wife's grandfather is so unwell it would be difficult perhaps for him to attend again to submit a further application....?

a.s.b.o
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Re: Advice needed: Yet another refusal of EEA FP application

Post by a.s.b.o » Sat May 02, 2015 12:54 pm

Thank you El patron

would you be kind enough to suggest the skeleton argument? I am sketching some broader arguments -


1. Applicant applied in a capacity of a direct family member. decision and the refusal refer to a different category of an application.
2. It is important to apply the correct test in EEA FP applications. In our case, relation and dependence are the primary tests.
3. Should I mention that we sense deliberate efforts to frustrate us from exercising treaty rights?! If so, are the viable/helpful ways to remind the bureaucrat of his/her responsibilities?

thank you

a.s.b.o
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Re: Advice needed: Yet another refusal of EEA FP application

Post by a.s.b.o » Sun May 03, 2015 11:18 am

please? Urgency is really urgent!

a.s.b.o
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Re: Advice needed: Yet another refusal of EEA FP application

Post by a.s.b.o » Mon May 04, 2015 5:32 pm

del

a.s.b.o
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Re: Advice needed: Yet another refusal of EEA FP application

Post by a.s.b.o » Mon May 04, 2015 10:33 pm

Hi guys, you comments on the ECM review rough draft will be extremely appreciated

Re: ECM reconsideration request

Dear Sir or Madam,

This is a request for reconsideration of refusal to issue EEA Family Permit (EEA FP) to Mr **** (GWF***). We argue that the refusal decision is unfair, i.e. based on the miss-application of the relevant legislation and is issued in the wrong category, other than the one applied for.

1. ECO, in the decision dated 24 April 2015, miss-applies the Immigration (EEA) Regulations 2006 and uses the wrong test in order to refuse ***** EEA FP application. Specifically, ECO relies on section 8 of Immigration (EEA) Regulations 2006 in order to reach the decision of “not being satisfied that you [APPLICANT] an extended family member in accordance with Regulation 8 of Immigration (European Economic Area) Regulations 2006” (see GV51 EEA, p. 2, paragraph 3).

2. Instead, the application should have been considered under section 7 of Immigration (EEA) Regulations 2006 and the relevant test should have been applied. Section 7 of Immigration (EEA) Regulations 2006 sets out the person that shall be treated as family members and this includes:

• (7) (1) (c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;

3. The ECO, in arriving at the refusal decision, states that the following documents were considered: (1) personal circumstances, as declared in the application form, (2) family circumstances and, (3) the supporting documents provided (see GV51 EEA ROA, p. 1, paragraph 3). In fact, the mentioned evidence explicitly demonstrates that Mikhail Ageev applies for EEA FP in a capacity of a direct family member of EEA national (sponsor):

(1) Part 7 of the application form states that ***** applies to join *****b in UK, who is EEA sponsor and is a grandson of the applicant (Questions 95, 104 and 128 of the application form).
(2) Alongside his application form, the applicant provided evidence of his direct relation to EEA sponsor (see section 1 of cover letter dated 15/04/2015, page 1), namely:
(1) An original birth certificate of [DAUGHTER], showing [APPLICANT] as being her father;
(3) An original birth certificate of EEA sponsor, demonstrating [MOTHER] as being his mother;

4. Evidence of relationship of [MOTHER] to the EEA sponsor was previously established at the time of the First-Tier Tribunal hearing (determination promulgated 1XXX/2014) and was provided with this application. This evidence was not challenged by ECO. Further, evidence of relationship of EEA sponsor to the applicant was provided with this application. This evidence also was not challenged by ECO. Entire documentary evidence above) stands as an unchallenged confirmation by which [applicant's] relation to EEA sponsor should have been considered under Section 7 of Immigration (EEA) Regulations 2006.

5. Section 12 of Immigration (EEA) Regulations 2006 further states that EEA FP “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

(12) (1) (a) (i) the EEA national is residing in the UK in accordance with these Regulations;
(12) (1) (b) the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there

6. The ECO, in arriving at the refusal decision, states that the following documents were considered: (1) personal circumstances, as declared in the application form, (2) family circumstances and, (3) the supporting documents provided (see GV51 EEA ROA, p. 1, paragraph 3). In fact, the mentioned evidence explicitly demonstrates that the applicant will be joining EEA sponsor in UK, who resides in UK in accordance with Immigration (EEA) Regulations 2006 in employment and self-employment capacity.

(1) Part 7 of the application form states that the applicant is joining an EEA sponsor who resides in UK;
(2) Part 7 of the application form states that EEA sponsor exercises treaty rights in UK in self-employment capacity (Questions 113 – 124);
(3) Alongside his application form, the applicant provided evidence of EEA sponsor’s residence in UK in accordance with Section 4 (1) (b) of Immigration (EEA) Regulations 2006 (see section 2 of cover letter dated 15/04/2015, page 1), namely:
(1) Certified copy of EEA sponsor’s Registration Certificate of an EEA national (UKF***), which confers that The Secretary of State accepts him as a qualified person;
(2) Evidence supporting EEA sponsor’s employment and self-employment status in UK at the First-Tier Tribunal held in **** 2014 (paragraph 14, page 5 of the decision);
(3) Evidence of EEA sponsor’s self-employment status (invoices, billing confirmations);

7. Above evidence establishes that the applicant will be joining EEA sponsor in UK, who resides in UK in accordance with Immigration (EEA) Regulations 2006. This evidence was not challenged by ECO. It should be stated that there are no further requirements under Immigration (EEA) Regulations 2006 for issue of EEA FP, given applicant’s relation to EEA sponsor (Section 7 of the Regulations) and the qualifying status of EEA sponsor in UK (Section 4 of Regulations). Accordingly, provided evidence establishes that [applicant] satisfies conditions identified by the Section 12 of Immigration (EEA) Regulations 2006 and according to which EEA FP should be issued.

8. We contend that EEA legislation is a highly complex area of Immigration law. The grounds for this reconsideration request is miss-application of the Immigration (EEA) Regulations and application of the wrong test by ECO in order to make a decision regarding issue of EEA FP to [applicant]. We resolve to EMC review in order to rectify errors in ECO’s decision. We kindly ask you to review the application and to re-consider it favourably.

Signed


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Directive/2004/38/EC
Respected Guru
Posts: 7121
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Location: does not matter if you are with your EEA family member

Re: Advice needed: Yet another refusal of EEA FP application

Post by Directive/2004/38/EC » Tue May 05, 2015 11:18 pm

Immigration law has nothing to do with fair or unfair. No point in using those words, as it suggests you do not have a lawful basis for this letter.

State clearly facts about your application. State clearly which catgeory was applied for. Ideally refer to the categories in UK legislation by paragraph and using the same words.

Then clearly state what is incorrect in the refusal. What was confused by the ECO. Ideally refer either legislation or internal UKBA guidance. (See https://eumovement.wordpress.com/2015/0 ... pril-2015/ and the linked to previous guidance)

Keep it simple and clear, as otherwise they will never read it.


a.s.b.o wrote:This is a request for reconsideration of refusal to issue EEA Family Permit (EEA FP) to Mr **** (GWF***). REWRITE this sentence.

1. ECO, in the decision dated 24 April 2015, miss-applies the Immigration (EEA) Regulations 2006 and uses the wrong test in order to refuse ***** EEA FP application. Specifically, ECO relies on section 8 of Immigration (EEA) Regulations 2006 in order to reach the decision of “not being satisfied that you [APPLICANT] an extended family member in accordance with Regulation 8 of Immigration (European Economic Area) Regulations 2006” (see GV51 EEA, p. 2, paragraph 3).

2. Instead, the application should have been considered under section 7 of Immigration (EEA) Regulations 2006 and the relevant test should have been applied. Section 7 of Immigration (EEA) Regulations 2006 sets out the person that shall be treated as family members and this includes:

• (7) (1) (c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;

3. The ECO, in arriving at the refusal decision, states that the following documents were considered: (1) personal circumstances, as declared in the application form, (2) family circumstances and, (3) the supporting documents provided (see GV51 EEA ROA, p. 1, paragraph 3). In fact, the mentioned evidence explicitly demonstrates that Mikhail Ageev applies for EEA FP in a capacity of a direct family member of EEA national (sponsor):

(1) Part 7 of the application form states that ***** applies to join *****b in UK, who is EEA sponsor and is a grandson of the applicant (Questions 95, 104 and 128 of the application form).
(2) Alongside his application form, the applicant provided evidence of his direct relation to EEA sponsor (see section 1 of cover letter dated 15/04/2015, page 1), namely:
(1) An original birth certificate of [DAUGHTER], showing [APPLICANT] as being her father;
(3) An original birth certificate of EEA sponsor, demonstrating [MOTHER] as being his mother;

4. Evidence of relationship of [MOTHER] to the EEA sponsor was previously established at the time of the First-Tier Tribunal hearing (determination promulgated 1XXX/2014) and was provided with this application. This evidence was not challenged by ECO. Further, evidence of relationship of EEA sponsor to the applicant was provided with this application. This evidence also was not challenged by ECO. Entire documentary evidence above) stands as an unchallenged confirmation by which [applicant's] relation to EEA sponsor should have been considered under Section 7 of Immigration (EEA) Regulations 2006.

5. Section 12 of Immigration (EEA) Regulations 2006 further states that EEA FP “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

(12) (1) (a) (i) the EEA national is residing in the UK in accordance with these Regulations;
(12) (1) (b) the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there

6. The ECO, in arriving at the refusal decision, states that the following documents were considered: (1) personal circumstances, as declared in the application form, (2) family circumstances and, (3) the supporting documents provided (see GV51 EEA ROA, p. 1, paragraph 3). In fact, the mentioned evidence explicitly demonstrates that the applicant will be joining EEA sponsor in UK, who resides in UK in accordance with Immigration (EEA) Regulations 2006 in employment and self-employment capacity.

(1) Part 7 of the application form states that the applicant is joining an EEA sponsor who resides in UK;
(2) Part 7 of the application form states that EEA sponsor exercises treaty rights in UK in self-employment capacity (Questions 113 – 124);
(3) Alongside his application form, the applicant provided evidence of EEA sponsor’s residence in UK in accordance with Section 4 (1) (b) of Immigration (EEA) Regulations 2006 (see section 2 of cover letter dated 15/04/2015, page 1), namely:
(1) Certified copy of EEA sponsor’s Registration Certificate of an EEA national (UKF***), which confers that The Secretary of State accepts him as a qualified person;
(2) Evidence supporting EEA sponsor’s employment and self-employment status in UK at the First-Tier Tribunal held in **** 2014 (paragraph 14, page 5 of the decision);
(3) Evidence of EEA sponsor’s self-employment status (invoices, billing confirmations);

7. Above evidence establishes that the applicant will be joining EEA sponsor in UK, who resides in UK in accordance with Immigration (EEA) Regulations 2006. This evidence was not challenged by ECO. It should be stated that there are no further requirements under Immigration (EEA) Regulations 2006 for issue of EEA FP, given applicant’s relation to EEA sponsor (Section 7 of the Regulations) and the qualifying status of EEA sponsor in UK (Section 4 of Regulations). Accordingly, provided evidence establishes that [applicant] satisfies conditions identified by the Section 12 of Immigration (EEA) Regulations 2006 and according to which EEA FP should be issued.

8. We contend that EEA legislation is a highly complex area of Immigration law. The grounds for this reconsideration request is miss-application of the Immigration (EEA) Regulations and application of the wrong test by ECO in order to make a decision regarding issue of EEA FP to [applicant]. We resolve to EMC review in order to rectify errors in ECO’s decision. We kindly ask you to review the application and to re-consider it favourably.

Signed


----------

a.s.b.o
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Re: Advice needed: Yet another refusal of EEA FP application

Post by a.s.b.o » Wed May 06, 2015 4:32 pm

Thank you,

I have taken onboard suggestions. Please suggest further improvements.

I also want to ask for reference relating to the dependence "out of choice" and how I can best reference it ? (own judgements, UKIT judgement or?!?!) In other words, how can I strengthen it?

Many thanks

------------

Date:

Re: ECM reconsideration request

Dear Sir or Madam,

This is a request for the reconsideration of a refusal to issue EEA Family Permit (EEA FP) to Mr [applicant] (GWF). Decision is taken based on miss-application of the relevant legislation (Immigration (EEA) Regulations 2006) and refusal is issued in the wrong category, other than the one applied for.

1. Decision to refuse [applicant's] EEA FP application is based on relying on Section 8 of Immigration (EEA) Regulations 2006 (GV51 EEA, p. 2, paragraph 3).

2. Instead, this EEA FP application should have been considered under section 7 of Immigration (EEA) Regulations 2006. Section 7 of Immigration (EEA) Regulations 2006 states

• (7) (1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—
• (7) (1) (c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;

3. The following evidence was provided in support of [applicant's] application in capacity of a direct family member of the EEA sponsor:

(1) An original birth certificate of [daughter], showing [applicant] as being her father;
(2) An original birth certificate of [EEA sponsor], demonstrating [daughter] as being his mother;

4. Evidence of relationship of the applicant’s daughter (x) to the EEA sponsor (x) was judicially established at the First-Tier Tribunal hearing (determination promulgated xx/10/2014) and was provided with this application. Further, evidence of relation of the applicant (x) to the EEA sponsor (x) was provided with this application. None of the evidence was challenged by ECO.

5. Secondly, Section 12 of Immigration (EEA) Regulations 2006 states that

• (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—
• (12) (1) (a) (i) the EEA national is residing in the UK in accordance with these Regulations;
• (12) (1) (b) the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there;

6. Section 6 of Immigration (EEA) Regulations 2006 defines qualified (i.e. residing in UK in accordance with these regulations) EEA nationals as following:

• (6) (1) In these Regulations, “qualified person” means a person who is an EEA national and in the United Kingdom as—
• (6) (1) (c) a self-employed person;

7. [applicant] states that he joins the EEA sponsor in UK, who resides in UK in accordance with Section (6) (1) (c) of Immigration (EEA) Regulations 2006 in self-employment capacity. The following evidence was provided to demonstrate that EEA sponsor is a qualified EEA national for purposes of these Regulations:

(1) A certified copy of [EEA sponsor] Irish passport (№ PT****);
(2) A certified copy of EEA sponsor’s Registration Certificate of an EEA national (UKF***);
(3) Evidence of EEA sponsor’s self-employment status (invoices, billing confirmations, tax returns);
8. Evidence of EEA sponsor’s residence in UK in accordance with Immigration (EEA) Regulations 2006 was judicially established at the First-Tier Tribunal held in xxx 2014 (paragraph 14, page 5 of the judgement). It was provided with this application and was not challenged by ECO.

9. Thirdly, [applicant] states that he is a dependent family member as he resides in the household of EEA sponsor and since December 2014, resides together with the EEA sponsor. The following evidence was provided:

(1) A copy of the applicant’s passport demonstrating residence at the EEA sponsor’s property;
(2) Original hospital bills in relation to applicant’s treatment paid by the EEA sponsor;
(3) Original medication bills in relation to applicant’s treatment paid by the EEA sponsor;
(4) A copy of the First-Tier Tribunal decision (determination promulgated xx/xx/2014) demonstrating applicant’s daughter (xxx) being a direct family member financially dependent on the EEA sponsor ();
(5) A copy of the official letter confirming that the applicant’s daughter () is carer for an officially recognised disabled applicant ();

10. Provided evidence demonstrates that [applicant] is a (1) disabled applicant, (2) and is a part of the EEA sponsor’s household and is (3) dependent on the EEA sponsor for his essential needs. Specifically, the EEA sponsor provides accommodation to the applicant free of charge. Further, the EEA sponsor provides necessary care for the disabled applicant since December 2014 and thirdly, meets applicant’s financial expenses. ECO did not challenge this evidence. It is the right of the applicant to be dependent on the EEA sponsor out of choice, not necessity, and in which case there is no need for ECO to test whether applicant’s pension is sufficient to cover his essential needs.

11. The First-Tier Tribunal (determination promulgated xxx/2014) establishes that other direct family members of the EEA sponsor’s household (mother, father) are also dependent – financially and emotionally - on the EEA sponsor. That decision establishes that ECO should not test whether family members of [EEA sponsor's] household depend on him out of choice or necessity (paragraph 13, page 4 of the judgement). In any case it evident that the applicant is the part of the EEA sponsor’s household and is a dependent direct family member of the EEA sponsor.

12. Immigration (EEA) Regulations 2006 is a statutory instrument that transposes EEA legislation into UK domestic law. There are no further requirements under Immigration (EEA) Regulations 2006 for issue of EEA FP, given the applicant’s relation to EEA sponsor, the qualifying status of EEA sponsor in UK and factual dependence of the applicant on EEA national, irrespectively of the basis for this dependency.

13. This reconsideration request is based on ECO’s miss-application of the Immigration (EEA) Regulations resulting in the wrong test applied to [applicant's] EEA FP application. This is the basis for requesting ECM reconsideration of [applicant's] EEA FP application.

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Re: Advice needed: Yet another refusal of EEA FP application

Post by a.s.b.o » Sat May 09, 2015 2:22 pm

gurus, any word of wise advice please?

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