Refusals for EEA family permit

[donald_f]

I have received 2 refusals for EEA family permit from the UKBA for myself and my son. As per my solicitor’s advice this time there are very good grounds for appeal against this decision by the ECO. My sponsor (wife) is currently in India living with me and we plan to travel together along with my son.
Can some please give a second opinion from the legal point about my chances of receiving a decision in my favor?
Below are the contents of the second refusal letter.

Your Application
You have applied for admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty of Rome in the United Kingdom.
The Decision
• Regulation 6 of the Immigration (European Economic Area) Regulations 2006 requires you to show that your sponsor is a "qualified person". The onus is on you and your sponsor to show that she is a jobseeker or has employment in the UK.
• I note that you previously applied under the same category; that application was refused on 19/6/2012 for the following reasons:
• "You have provided no evidence that your sponsor is searching for work, or any evidence of her ability to do so. In your application form you state that you are searching for work, and the job adverts you have supplied are for you.
• Within your current application you have submitted a supporting letter from (My Solicitor); this states that, in part, the following documents have been provide:
- Evidence of accommodation arranged for your stay; and
- Details of potential job opportunities for your sponsor and yourself.
• It is not relevant to your application whether or not you are or have been seeking employment in the UK.
• Your sponsor has qualifications in chemistry, and I note there are various printouts from job websites in this field. I also note that the accommodation evidence indicates that you intend to stay in London; however there the various print outs from job websites cover the following areas in the UK: Runcorn; Oxfordshire; the North East; Harrogate; Cambridgeshire; the West Midlands; Lincolnshire; Gloucestershire; East Sussex; Derbyshire; Dartford; and Flitwick. It is reasonable to expect a person seeking employment in the UK to have a reasonable idea of where they intend to settle and live; the spread of locations of these jobs are indicative of someone simply printing off job advertisements to lodge with your application; there is no evidence whatsoever that your sponsor has actually applied for any of the employment positions in the UK. It is reasonable to expect your sponsor to show that she is genuinely a job seeker or has gained employment in the UK; this would include acknowledgement that she has applied for employment; there is no such documentation o show this.
• I also note that you have failed to provide a copy of your sponsor's Home Office registration. This is a requirement under EEA regulations and following such registration your sponsor would be given an EEA residence permit card for the UK. There is no evidence to show that your sponsor is in the UK and/or is genuinely actively seeking employment.
• Taking into account your circumstances, based on the information and documentation that you have provided and considering your application as a whole, I am not satisfied that you have adequately demonstrated that your sponsor is exercising his Treaty rights and therefore that you meet the requirements for non-EEA national spouse of an EEA National applying for an EEA Family Permit
• I have also taken account of article 8 of the Human Rights Act. I consider that refusing this application is justified and proportionate in the exercise of the immigration control. I do not believe that refusing this application will interfere with family life, for the purposes of article 8 (1), as you can continue to enjoy that in India.
I therefore refuse your EEA family permit application because I am not satisfied that you meet all of the requirements of Regulation 12 of the Immigration (European Economic Area) Regulations 2006.

[Lucapooka]

If your partner is in India rather than inside the UK, she does need to be a qualified person exercising treaty rights for the first 3 months from her arrival in the UK. It's obviously an incorrect decision, otherwise, based on what has been stated about the refusal, if she did need to be qualified, I would have been inclined to agree that sending a few print-outs from random websites would not be sufficient.

[EUsmileWEallsmile]

Can some please give a second opinion from the legal point about my chances of receiving a decision in my favor?

There is no basis in law for the ECO's decision.

You should complain and VERY strongly. You appear to be able to handle English very well, please review 2004/38/EC and 2006 EEA immigration regulations if you haven't done so.

[EUsmileWEallsmile]

What nationality do you hold?

[EUsmileWEallsmile]

• Regulation 6 of the Immigration (European Economic Area) Regulations 2006 requires you to show that your sponsor is a "qualified person". The onus is on you and your sponsor to show that she is a jobseeker or has employment in the UK.

Reg 6 is not necessarily relevant to reg 12.

[EUsmileWEallsmile]

• I note that you previously applied under the same category; that application was refused on 19/6/2012

Irrelevant, but why was this application refused?

[EUsmileWEallsmile]

• "You have provided no evidence that your sponsor is searching for work, or any evidence of her ability to do so. In your application form you state that you are searching for work, and the job adverts you have supplied are for you.

Not required and so what. Irrelevant.

[EUsmileWEallsmile]

• It is not relevant to your application whether or not you are or have been seeking employment in the UK.

I concur, but the basis for the overall rejection is nonsense.

[EUsmileWEallsmile]

• Your sponsor has qualifications in chemistry, and I note there are various printouts from job websites in this field. I also note that the accommodation evidence indicates that you intend to stay in London; however there the various print outs from job websites cover the following areas in the UK: Runcorn; Oxfordshire; the North East; Harrogate; Cambridgeshire; the West Midlands; Lincolnshire; Gloucestershire; East Sussex; Derbyshire; Dartford; and Flitwick. It is reasonable to expect a person seeking employment in the UK to have a reasonable idea of where they intend to settle and live; the spread of locations of these jobs are indicative of someone simply printing off job advertisements to lodge with your application; there is no evidence whatsoever that your sponsor has actually applied for any of the employment positions in the UK. It is reasonable to expect your sponsor to show that she is genuinely a job seeker or has gained employment in the UK; this would include acknowledgement that she has applied for employment; there is no such documentation o show this.

It is for the EU national to enjoy their rights of free movement and not for the ECO to judge what the overall intentions are. Three months - no restrictions - NONE.

[EUsmileWEallsmile]

I
• Taking into account your circumstances, based on the information and documentation that you have provided and considering your application as a whole, I am not satisfied that you have adequately demonstrated that your sponsor is exercising his Treaty rights and therefore that you meet the requirements for non-EEA national spouse of an EEA National applying for an EEA Family Permit

The ECO person simply does not understand the regulations.

[EUsmileWEallsmile]

• I have also taken account of article 8 of the Human Rights Act. I consider that refusing this application is justified and proportionate in the exercise of the immigration control. I do not believe that refusing this application will interfere with family life, for the purposes of article 8 (1), as you can continue to enjoy that in India.

I doubt that Article 8 has not been taken into account, this is simply lip service.

[EUsmileWEallsmile]

• I also note that you have failed to provide a copy of your sponsor's Home Office registration. This is a requirement under EEA regulations and following such registration your sponsor would be given an EEA residence permit card for the UK. There is no evidence to show that your sponsor is in the UK and/or is genuinely actively seeking employment.

EEA residence permit card for the UK

There is no such thing.

This is complete rubbish. Portuguese nationals may apply for a residence certificate if they wish after entry and residence in the UK, but they don't have to. It is not a requirement under the regulations.

[Directive/2004/38/EC]

Wow!

I have received 2 refusals for EEA family permit from the UKBA for myself and my son.

As per my solicitor’s advice this time there are very good grounds for appeal against this decision by the ECO.

Were both of the refusals for exactly the same reason? The applications were done together?

Where is your solicitor? At what stage is the appeal? When did you want to move to the UK?

[Directive/2004/38/EC]

If your partner is in India rather than inside the UK, she does [NOT?] need to be a qualified person exercising treaty rights for the first 3 months from her arrival in the UK.

I am not sure what you are saying here.

[donald_f]

What nationality do you hold?

Me and my son are Indian national. my wife was an Indian national, but has now taken Portuguese nationality (http://en.wikipedia.org/wiki/Portuguese ... ty_law#Goa)

[donald_f]

Wow!

I have received 2 refusals for EEA family permit from the UKBA for myself and my son.

As per my solicitor’s advice this time there are very good grounds for appeal against this decision by the ECO.

Were both of the refusals for exactly the same reason? The applications were done together?

Where is your solicitor? At what stage is the appeal? When did you want to move to the UK?

First Refusal
"You have provided no evidence that your sponsor is searching for work, or any evidence of her ability to do so. In your application form you state that you are searching for work, and the job adverts you have supplied are for you."
Also they had mentioned that there are reason to believe my sponsor is not a qualified person.

Both our applications were to gather.

My solicitor in based in India. I am yet to file an appeal.

[EUsmileWEallsmile]

What nationality do you hold?

Me and my son are Indian national. my wife was an Indian national, but has now taken Portuguese nationality (http://en.wikipedia.org/wiki/Portuguese ... ty_law#Goa)

Great, so there are no special restrictions on you enjoying your freedom of movement, these expired for Portuguese nationals in 1992.

[EUsmileWEallsmile]

Wow!

I have received 2 refusals for EEA family permit from the UKBA for myself and my son.

As per my solicitor’s advice this time there are very good grounds for appeal against this decision by the ECO.

Were both of the refusals for exactly the same reason? The applications were done together?

Where is your solicitor? At what stage is the appeal? When did you want to move to the UK?

First Refusal
"You have provided no evidence that your sponsor is searching for work, or any evidence of her ability to do so. In your application form you state that you are searching for work, and the job adverts you have supplied are for you."
Also they had mentioned that there are reason to believe my sponsor is not a qualified person.

Both our applications were to gather.

My solicitor in based in India. I am yet to file an appeal.

Bear in mind that an appeal could take some time. You can appeal and complain simultaneously.

[Directive/2004/38/EC]

Does your Indian based lawyer know much about EU free movement law?

[Jambo]

Just to clarify - Was your wife living in India during all the previous applications? Did she at any point move to the UK alone?

[donald_f]

Does your Indian based lawyer know much about EU free movement law?

They are UK Immigration specialist Law firm providing Visa application and advisory services particularly in Entry Clearance Applications, Administrative review and Appeal, also a Lawyer in India and Solicitor for England and Wales.

[Lucapooka]

Just to clarify - Was your wife living in India during all the previous applications? Did she at any point move to the UK alone?

Please answer this question!

[donald_f]

Just to clarify - Was your wife living in India during all the previous applications? Did she at any point move to the UK alone?

Till date she has not been outside of India. She was born and is still living in India with us. Her Portuguese nationality papers were also processed at the Portuguese consulate (Goa) and some in Lisbon.

[Lucapooka]

If your partner is in India rather than inside the UK, she does [NOT?] need to be a qualified person exercising treaty rights for the first 3 months from her arrival in the UK.

I am not sure what you are saying here.

That is what I'm saying and thanks for correcting the typo.

[Jambo]

Till date she has not been outside of India. She was born and is still living in India with us. Her Portuguese nationality papers were also processed at the Portuguese consulate (Goa) and some in Lisbon.

In that case, the reasons for refusal are completely rubbish.

How much was the lawyer involved in preparing the application? As part of the blame for the refusals is that the application contained unnecessary documentations which just confused the ECO / gave him (unlawful) reasons for refusal.

You should have only applied with:

1. Passport (Portuguese for your wife, Indian for you and your son).
2. Marriage certificate.
3. Birth certificate for your son.

That's all.

All the extra job seeking proof is not required.