Refusal of EEA Family Permit - Reapply or Appeal

[Szmek]

Hello everyone,

My wife was today refused her EEA Family Permit because she stated that her visit is for 6 months and we didn't include evidence of my right to stay longer than 3 months in the UK (evidence of work).

I have this evidence, a letter of acceptance to a job (which starts at the end of July) but I didn't have this letter when our application was lodged.

We urgently need to get the EEA Family Permit so that we can relocate to the UK. My question is which will be faster:

1) appealing the decision - showing the evidence of employment (which means I will be exercising treating rights and allowing me to stay for longer than 6 months)

2) reapplying for the EEA family permit - enclosing this evidence to support the same case

Which one would be a faster procedure? an appeal or a brand new application? (the application was made at the UK embassy in Warsaw, Poland)

[Jambo]

1. What nationality is your wife? She might not need a Family Permit (it is not mandatory if she can enter the UK without a visa).

2. reapplying is faster.

3. Either way the decision is wrong. The ECO must not apply any jedgement on your actitvities after 3 months. The EEA Family Permit is to facilitate entry and should not take into account if you will be a qualified person in 3 months or not.

[Szmek]

1) She is from Belarus (she needs a VISA)

2) Thanks

3) I was under the same impression, so i carefully read http://www.ukba.homeoffice.gov.uk/polic ... /eun/eun2/

vi. The EEA national is not a qualified person because there is no evidence of Treaty rights being exercised:

'You have failed to provide evidence that your EEA national family member is a qualified person in accordance with Regulation 6 of the Immigration (European Economic Area) Regulations 2006. I am, therefore, not satisfied that your EEA national family member is residing in the UK in accordance with the Immigration (European Economic Area) Regulations 2006.'

Please note: because of the initial right of residence, the ECO cannot refuse someone on the basis that that their EEA national family member will not be a qualified person in the UK on arrival. However, if the ECO is satisfied that the EEA national has been in the UK for longer than three months, the ECO must be satisfied that the EEA national is a qualified person.

I guess they're using this - as I am legally there for 3 months (whatever the case may be) but for longer than 6 months, I must show some evidence. But the 'has been' implies that I am there. As I am going there, my initial right of residence is under scrutiny. So yes, I guess you are right, but what are we supposed to about it if not appeal. The decision has been made, and we need to travel in 2 weeks.

Either way our only way to get the EEA family permit is to reapply or to appeal. We need this very fast!

[Jambo]

Reapply. You can add your employment contract. It is not needed but if you want an answer quickly and not just educate the ECO, I guess it is better to add it.

Add a cover letter explaining this is your second application and pointing out why they were wrong in their refusal. Add that you expect the application to be treated with priority this time.

[Szmek]

This is what I have written to add as a covering letter from the EEA national (i.e. husband i.e. ME)

REMOVED FOR SECURITY REASONS

Is this ok? Or too 'strong'?

[Many thanks in advance to everyone on this forum. You help people like us a great deal!]

[Szmek]

My mistake, every FCO should read ECO =)

[Szmek]

We have prepared a second application, but the next date for an appointment is in 2 weeks! (if only it could be sooner)

We're thinking of taking it, just in case, afterall the EEA-FP is free. But otherwise maybe lodging an Appeal.

Can someone answer these questions:
1) Can an Appeal be lodged against a decision at the same time or close to another application?
2) Does the appeal process take a fee or is it free of charge against refusals for an EEA-FP?
3) What is an the expected turn-around time for an appeal from appeal till decision?

This refusal really messed up our travel, a few weeks more and it could have really messed up our lives!

Please, any words of wisdom will be well appreciated

[soniac]

[quote="Szmek"]We have prepared a second application, but the next date for an appointment is in 2 weeks! (if only it could be sooner)

We're thinking of taking it, just in case, afterall the EEA-FP is free. But otherwise maybe lodging an Appeal.

Can someone answer these questions:
1) Can an Appeal be lodged against a decision at the same time or close to another application?
2) Does the appeal process take a fee or is it free of charge against refusals for an EEA-FP?
3) What is an the expected turn-around time for an appeal from appeal till decision?

This refusal really messed up our travel, a few weeks more and it could have
really messed up our lives!


Appeal are £80 for paper appeal and £140 oral appeal. I am currently in the paper appeal process and it is definitely a much longer process. I lodged my appeal on May 10th and the First Tier Tribunal just sent my notice of appeal out (5 weeks later) and has given the embassy to overturn their original refusal up until August 29th. Now I dont know if it will actually take that long for them to decide, but if they dont decide to overturn the original refusal, it will then get sent to a hearing which will be an additional 2 months, maybe longer. Re-applying would definitely be the quicker route!!!

[Szmek]

Oh my! I feel so sorry for you! I just found the topic about the fees on the sticky at the top of the page (silly me)

Surely, given those sort of dates, it would be much faster to just do another application! Those 5 weeks would have had me pulling my hair out! I guess an Appeal in my case is absolutely useless!

A re-application is only option I guess - unless I just turn up at the border with my wife and our marriage documents and supporting documents - I read somewhere that even without correct entry clearance, they can just turn you away with EEA law - anyone ever tried that?

[Szmek]

OK, I'm sorry for the previous 'ranting' - I was pretty hurt by the information from the UK Embassy today...

We've completed an online application and submitted it again, with an appointment set in 2 weeks (beginning of July).

With regards to the letter I posted before, does anyone have a comments? Is it something that might work (highlighting the issues of the previous refusal) or is it likely to infuriate the ECO and make the decision outcome less favourable?

On a different note: in our 'refused' application we provided a large amount of supporting documents aside from the obvious marriage certificate and translation (married May 2011, btw our previous EEA-FP was granted 07.2011-01/2012)
These supporting documents included:
- 6 months worth of bank statements (x2 both of us, seperate accounts), mobile phone bills (x2 both of us)
- an accommodation report from my parents house in UK
- statements from my parents stating that we are in an 'honest' marriage
- confirmation of our student statuses (we are now finished, and I'm taking up employment in the UK)

Now we dont have these supporting documents because all of them (originals) were taken with the 'refused' EEA Family Permit application.

Am I correct in what I said in the covering letter:

Our supporting evidence consists of our identity documents and our marriage certificate (and sworn translation of the afore mentioned). Other supporting evidence that was submitted with our previous application is no longer available (as the originals were kept), however according to legal and UKBA guidance evidence such as confirmation of employment/student status, financial statements, mobile telephone bills, accommodation reports and photographs are not required for the EEA Family Permit and lack of the afore mentioned does not constitute grounds for refusal.

Will it be possible to refer to those documents in this application as they have them already?
(in the wording of the refusal the ECO checked the previous EEA-FP and quoted it as planning future relocation, so its pretty obvious that he went back to check through I previous paperwork]

So our supporting documents would only include:
- Our certificate of marriage
- A sworn translation of our certificate of marriage (from Polish to English)
- A photocopy of my passport (Polish - EU)
- A photocopy of a letter of acceptance for a job in the UK (2 year contract)
- Covering letter (with declaration of travel and intent to work in the UK)
- Perhaps a letter from my father describing our relationship and plans to move to the UK (he is a UK citizen, maybe that addes some credibility)

Would this be enough to grant the EEA-FP?

Thanks a bunch for all and any help =)

[Directive/2004/38/EC]

Amazing! You should not have been put through this whole process.

I would send an informal letter of appeal to the manager of the visa section. In it you will tell them that your right of free movement has been interfered with by his office, and that you are likely to miss your July travel date. That if the visa is not issued as soon as possible and on the basis of an accelerated process, that you will both seek compensation from UKBA, and you will complain to the European Commission.

[Szmek]

Thank you for your reply,

I will make an official letter and send it (via email) to the visa dept. Should I say that 'after legal advice' (?) it was brought to attention that 'the decision was illegal' (?) or 'against EU Regulations' (?) - I want to sound as official as possible

Is this information in the covering letter that I wrote above roughly correct or in need of any major correction? I'm considering using it in the complaint to the manager of the Visa Department

Sorry for the very early reply, but we were waiting for the passport to travel, and the decision of the UK Embassy was even more ridiculous in that it was made LAST WEEK, even thought we mentioned (via email) that my wife needs her passport back in order to travel ASAP they only rang yesterday - absolute joke

[Jambo]

Thank you for your reply,

I will make an official letter and send it (via email) to the visa dept. Should I say that 'after legal advice' (?) it was brought to attention that 'the decision was illegal' (?) or 'against EU Regulations' (?) - I want to sound as official as possible

Is this information in the covering letter that I wrote above roughly correct or in need of any major correction? I'm considering using it in the complaint to the manager of the Visa Department

Sorry for the very early reply, but we were waiting for the passport to travel, and the decision of the UK Embassy was even more ridiculous in that it was made LAST WEEK, even thought we mentioned (via email) that my wife needs her passport back in order to travel ASAP they only rang yesterday - absolute joke

I don't think it is right to say "legal advice" unless you consulted with a professional beside the forum. I would also not say "illegal" but rather "against EU regulations".

Also a comment on formatting, you should try and distinguish between quotes and your own sentences (maybe have the quotes in italics?). It would make it easier to read the letter.

[Directive/2004/38/EC]

Should our travel arrangements change, she will meet me once I am in the United Kingdom.

I would personally never say this. I prefer to reduce options from the situation, rather than adding them

Otherwise what you have written generally seems good to me. As was mentioned, format it nicely so that it is easy to read, and indent quotes and maybe make them italic.

[Szmek]

Thank you all to your comments and for the information.

I pasted the letter from my word processor and it skipped the format, but I guessed people would be able to get the message. As the advice goes, I will change the format and make it clearly visible that these are quotes.

I have been really busy with family tonight, but tomorrow I will post the official draft of what I will supply as a 'letter of complaint' to the manager of the visa dept at the UK Embassy. I will be sending via email the following morning. Hopefully I shall have it up before midday tomorrow, so if anyone has any critical comments to make, I will submit what I want write and wait for a reply. It will be sent on Wednesay morning.

Again thank you for the all the help and support from the forum.

We have also booked a

[Szmek]

It has taken longer than I anticipated but here is the letter that I have written and that will be submitted by my wife to the Manager of the Visa Department of UK Embassy. If you have the time and patience, please could you read it and post any comments or constructive critique. It will be sent tomorrow morning and I hope I will be able to post a positive reply what we receive it:

REMOVED THE LETTER FOR SECURITY REASONS

[Directive/2004/38/EC]

and has put the integrity of our family at threat

I would not say this. It can be read the wrong way. I personally would say

Refusing my EEA Family Permit means you have restricted my husband's freedom of movement and his right to move to the UK

I would say something like:

The EEA Family Permit must be issued as soon as possible, on the basis of an accelerated process". The applicant must also be given "every facility".

You already have my finger prints, my supporting documents, and all details of my application. I was incorrectly refused the EEA Family Permit. Please ensure that "every facility" is given to ensure that my previously applied for EEA Family Permit is now correctly issued, or the new application is processed quickly enough for us to use our existing and paid for travel arrangements. If this is not done, we will use our right under EU law to request compensation from UKBA.

Should you have any question about any aspect of this application, do not hesitate to contact us immediately or contact the European Casework team for guidance

[Szmek]

Thanks for your comment. I have incorporated what you said into what I wrote.

After a few final adjustments, the letter was sent today. I won't copy the letter, it would just take up a large amount of space and the general jist is the same as above. Once i achieve a reply, I will post it up on the forum.

One last question: is the refusal on grounds of public policy the same as a concern for recourse to public funds?

I understand that public security is related to criminality, public health to contagious diseases (e.g. Tuberculosis) - but what exactly is a threat to public policy?

[Directive/2004/38/EC]

Public Security is more national security. So terrorism and things like that.

Public Policy is more serious and ongoing criminal activity. So serial murderers. They also excluded the radical right wing Dutch politician on these grounds, though it was overturned by the court.

It is very rare that anyone can be excluded on these grounds.

[Szmek]

So what is the wording of the regulations that refuse someone on the grounds that they might require recourse to public funds due to lack of employment/finances?

I understand that this is the most common type of refusal for all visa applications (non EU route) as to prevent anyone becoming a burden to the UK social system (namely benefits)

[Directive/2004/38/EC]

So what is the wording of the regulations that refuse someone on the grounds that they might require recourse to public funds due to lack of employment/finances?

I understand that this is the most common type of refusal for all visa applications (non EU route) as to prevent anyone becoming a burden to the UK social system (namely benefits)

There is NO option to refuse a spouse of an EU citizen "on the grounds that they might require recourse to public funds due to lack of employment/finances".

Read Regulation 12, which totally specifies the requirements for a EEA Family Permit:

Issue of EEA family permit
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— (a) the EEA national—
(i)is residing in the UK in accordance with these Regulations; or
(ii)will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and
(b) the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there.
(2) [relevant only to extended family member]
(3) [relevant only to extended family member]
(4) An EEA family permit issued under this regulation shall be issued free of charge and as soon as possible. (5) But an EEA family permit shall not be issued under this regulation if the applicant or the EEA national concerned falls to be excluded from the United Kingdom on grounds of public policy, public security or public health in accordance with regulation 21.

So there is an option to refuse on the grounds of regulation 21. And also if it is a marriage of convenience. That is it. No other options. Note the use of the word must!

[Szmek]

Thanks, I understand these rules and they are 100% clear to me and I would guess any other person who has the ability to read (but not some ECOs).

I ask this, because in the refusal letter the ECO referred to 'recourse to public funds' if the EU national is not exercising treaty rights after the initial right of residence.

I understand that the UK is trying to limit people coming and 'sponging' from the government, but I wonder what the actual wording of these regulations is? We have a previous application for a Visitor visa refused based on insuffient financial evidence that ended with the suggestion we would have to 'recourse to public funds'.

If this is such an important issue for the UKBA, there must be appropriate legislation (?) and if they are now trying to refer this (against regulations) onto EU nationals and their family members, I wonder what are their grounds?

The ECO specifically stated:

I am entitled to be satisfied that the EEA national and his family members will not be a burden on the social assistance system in the UK.

Where is this entitlement? (I thought it was this 'public policy')

[Directive/2004/38/EC]

It is basically made up. "I am entitled to" is a nice concept, and maybe it applies to UK domestic law, but not at all to EU free movement law.

I think they feel their "entitlement" comes from 3(b) below. Note that this does NOT exist in the original Directive. But it is also not relevant for the EEA FP, which is purely regulation 12.

(UK) The Immigration (European Economic Area) Regulations 2006 transposes that as:
Regulation 13.—
(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.
(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.
(3) But—
(a) this regulation is subject to regulation 19(3)(b); and
(b) an EEA national or his family member who becomes an unreasonable burden on the social assistance system of the United Kingdom shall cease to have the right to reside under this regulation.

[Szmek]

Ok, so the letter was sent via email on Thursday, and this morning (Friday) we received an email from the British Embassy that the ECM has decided to give our application priority treatment, and we should 'contact them when we intend to submit our application'.

The latter was not really understood by us, so we emailed them again to explain (whether we must wait until July for the next available appointment - via the online application - or whether we contact them when we want to submit, or inform the staff that is accepting the application on the day etc. etc.)

They replied in the afternoon, stating that if there are no available appointments, the she can apply at the Embassy on Tuesday next week. We should inform the staff of our correspondence with them and of the decision of the ECM.

So far happy faces all round. I am now in the middle of creating the covering letter for the ECO, which will restate the things written in the complaint, so that he may follow the regulations this time.

Many thanks to everyone for their help (esp. users: Directive/2004/38/EC and Jambo)

I will update, when we find out the final results.

PS. Very interesting link re: travelling without an EEA Family Permit (just not via aeroplane) -> http://eumovement.wordpress.com/2010/08 ... to-travel/

[Jambo]

Nice one. It seems the ECM has recognised their mistake. Hopefully the FP will get issued quickly.