PLEASE HELP - EEA 4 application refused

[ford26]

My EEA 4 application has been refused because I cannot submit my EEA national Father's passport as he has since left the UK and cannot give me his passport.

Is there any loophole around this? Will they accept a notarized photocopy from his embassy of his passport?

Are there any other options?

[Jambo]

Was it actually refused or was it returned to you due to missing documents?

The EEA national passport is not a must fr a PR confirmation but you will need to explain why it is not submitted with the application.

[ford26]

It was returned due to missing documents.

I explained in the application that my father (German citizen) is now living in Spain so he needs his passport there and can be ejected from the country without it.

I did include a photocopy but apparently this wasn't good enough. My father has offered to go to the German Embassy in Spain and get me a notarized copy from them but I don't know if that's good enough.

[Jambo]

Has he got a German ID card you can use?

The way the HO works is that they first check the application to make sure all the evidence is there. These checks don't mange well applications which are a bit uncommon.

Re-apply with a certified copy of the passport or ID card, and in the letter refer to the following tribunal decision

(3) The “proof” that the Secretary of State can lawfully require in applications under regulations 17 and 18 in order to entitle a non EEA national to a residence card (regulation 17) or a permanent residence card (regulation 18) may, nevertheless, depending on the circumstances, entail the production of the passport or other identity document of an EEA national; but it is unlawful to refuse applications merely because such documentation is not forthcoming. The Secretary of State needs to show a valid reason why it is required.

[ford26]

He doesn't have a German ID card, and I was told by my mom (I don't know if this is correct) that he needs to live in Germany to apply for a German Id card, and he currently lives in Spain.

Oh, ok, that's helpful - so does that mean that just because I cannot provide his actual passport, they cannot reject it because of that?

I hope that it will work. This is very frustrating, I was brought here as a child when I was 14 (now 21) so i've obviously grown up and built a life in the UK and now have to deal with all this non-sense!

[Obie]

When did your father move to Spain? and did you provide proof that you lived with him for a complete five year period in the UK before he left, or that he was someone who had acquired permanent residence before he left and had not been out of the UK for more 2 years since he acquired PR.

Once those issues are resolved, you can argue on the basis of the case cited above that the UKBA have acted unlawfully by not making a formal decision on you application which will confer a right of appeal

[ford26]

Ok, i'll explain more of the situation -

My German father is married to my American mother and our family moved to the UK in 2005 so my father could study at a specialist college.

In my passport I have the EEA Family Permit with my father's name on it as my EEA national relation.

My mother and father left the UK to live in Spain in 2010.

To prove he was excercising treaty rights for 5 years I included -

-Acceptance letters and payment invoices for his college course
-Letters from employers
-P45
-Tenancy agreements and letters from landlords
-European Health Card for my father

I also provided them with my brith certificate to prove my relation to my EEA national father, letters from Secondary school and two colleges that I studied at, P60 for my job which I have worked full time at since I was 16 and also tenancy agreements and bank statements for myself to prove that I have also lived independantly from the age of 18.

I don't see why I should have so many problems with them as obviously I've grown up here and have shown all this proof of our goings on in the UK.

Any help with this situation would be very appreciated - I would hate to have to uproot my whole life and return to the US where I don't have friends and only have family members who are not particularily part of my life :s

[Obie]

The problem is, they have not made a formal decision, so you are unable to appeal. On appeal i am sure, a refusal will be overturn.

There is the option of applying for the New Derivative right of Residence, if your Residence Card has expired, provided you are still doing your studies in the UK.

You qualify for PR, without your dad's passport.

You may need to threaten UKBA with legal action if they don't make a decision without your dad's passport.

I wish you all the best mate.

[ford26]

Yeah, well I finished my studies when I was 17 and have worked full time since I was 16 - although my work will not allow me to come back atm unless I get my paperwork through even though I have already aqquired PR...I don't know how to make them take me back without the paperwork!

[Directive/2004/38/EC]

The problem is, they have not made a formal decision, so you are unable to appeal. On appeal i am sure, a refusal will be overturn.

If I understand correctly, lack of a formal decision does not prevent you from appealing. See http://www.freemovement.org.uk/2012/06/ ... -decision/ for an example

[Obie]

Well that is the whole point. There is no immigration decision. The right under regulation 26 can only be exercised if there is a proper notice of decision.

These letters are simply returning an applicants application and telling them it is not a decision, and advising to resend application again.

It is simply not an immigration decision.

Yes people can write to the tribunal, however these options is not always successful, especially where there is no notice of decision. It work in cases where there is a decision, but there are dispute as to whether a person has an in country or out country appeal.

[thsths]

Well that is the whole point. There is no immigration decision. The right under regulation 26 can only be exercised if there is a proper notice of decision.

Not yet, I guess. But if you talk formalities, the process is still ongoing, because it can only be concluded by the applicant withdrawing the application, or the UKBA making a decision.

These letters are simply returning an applicants application and telling them it is not a decision, and advising to resend application again.

But what it does not say is that the time is still ticking - should it? Maybe you should just send the evidence again, and say you demand a decision? And actually they have seen the evidence, so there is no need to send it again. So logically all you have to do is to inform the UKBA that you intend to pursue the application further.

[ford26]

we have today (august 8th) recieved a letter from the UKBA stating "you have no further leave to remain in the uk and are therefore writing to find out your plans to depart". we have today been trying to contact the thames valley and surrey immigration team with no success (phone lines are engaged or no answer.).

obviously this matter needs to be attended to very urgently although I believe the letter we recieved today is wrong because we are still in the process of making the application and gathering evidence and have not been told formally the application has been refused or been given any reason for refusal.

[ford26]

Also, the previous letter we recieved when they sent all my documents back to me stated that "this is not a formal determination of you under the regulations, our purpose in returning the documents is to enable you to assemble a complete dossier of supporting evidence and to submit this with a fresh application when you are in a position to do so, in the meanwhile we will not be giving any further consideration to your case."

so, you can see they've told us two completely different things!

[EUsmileWEallsmile]

Have the UKBA ever had sight of your father's passport, ie mean in the past? Perhaps when you were issued with your original documentation?

[EUsmileWEallsmile]

This case law is probably relevant to you.

http://www.bailii.org/uk/cases/UKUT/IAC ... maica.html

[EUsmileWEallsmile]

Was your passport retained?

[ford26]

no my passport was not retained

[EUsmileWEallsmile]

no my passport was not retained

Good.

[EUsmileWEallsmile]

Have the UKBA ever had sight of your father's passport, ie mean in the past? Perhaps when you were issued with your original documentation?

The answer to this and the case law I showed you may be important.