Can I reapply while appeal is ongoing

[jgdes]

Hi all, I hope someone can answer my conundrum because UKBA are not talking....

[b]Background to question:[/b]

I am British and my non-EEA wife from Ukraine was given a 5 year residence permit as 'family memeber of an EEA citizen' a year ago as I had been working in France for 6 years and I then returned to the UK to work. However we could not take her son then because at that time we had neither his father's permission for him to leave Ukraine nor a second bedroom to put him until we bought a house. He remained with his granny in Ukraine.

After the house purchase we got the boys passport, the fathers permission and then applied for an EEA permit for the boy. As proof of my having exercised my EEA freedom of movement rights I sent the photocopy of my wifes residence card - as it seemed logical to me that superceded any and all other documents and I didn't want to confuse the UKBA with issues that had already been dealt with. I fully expected it to be a rubber-stamping operation. It was complicated by UKBA sending the application to Poland as the Kiev embassy wasn't doing this job any more.

Anyway the permit was refused because I didn't supply the French proof of residency/economic activity documents this time (bearing in mind I had already submitted these twice to UKBA and that I expected they would have picked up the phone and asked me for them if really needed).

Well according to the spirit and letter of the UK law the residency permit as 'family member of an EEA citizen' is surely sufficient proof of former EEA residency to anyone with a functioning brain so I appealed, expecting the ECO to overturn the judgment quickly. I realised it may be quicker to reapply with extra documents but I did not want to reapply to that same cretin in Poland. Well here we are, 6 months later and the ECO is still gathering his/her paperwork for the tribunal. Again I'd have expected the ECO to have overturned the rank bad decision by this time. So I presume they are going to be bloody-minded and go to the full tribunal which will take another 6 months+ and will be decided on procedure, rather than on the rights and wrongs of the decision. So I'm then depending on a senile, euroskeptic, xenophobic judge with a god-complex doing the right thing.

[b]Question1:[/b]

Can I reapply now while the appeal for the first application is ongoing or would that disrupt the appeal process or the reapplication process, or both? My deep suspicion, based on my experience so far with this archaic system (that doesn't recognise emails or phones), is that UKBA will do whatever is more awkward to lengthen the entire process and avoid saying yes. Any advice based on actual experience like this would be appreciated. Theory doesn't count for much with these characters I'm afraid. Thanks in advance. At every passport control i am reminded that they don't even know what is written in their own website or their online handbooks.

[b]Question2:[/b]

The recommendation on the end of the refusal is that we should apply via the UK immigation rules but my reading of the UKBA rulebook says that you 'cannot mix and match the two routes'. So if the spouse came in under EEA rules her son should too. I therefore foresee a catch 22 situation were I to follow that advice. Any opinions?

[vinny]

1.

A person who has an appeal pending can make a fresh application for entry clearance in the same or any other category. There is no requirement for a person to withdraw an appeal. If an appellant is subsequently issued an entry clearance, Post must inform the Tribunals Service at: eco.contact@hmcts.gsi.gov.uk. The ECO must ensure that a proforma of Withdrawal of Decision is also sent to the Tribunals Service and this appeal will stop.

2. If reapplying, then apply for another EEA family permit, with wanted documents.