Refusals for EEA family permit

[donald_f]

Should I submit this forum link on facebook..
http://www.facebook.com/ukba.in.india

[Directive/2004/38/EC]

Question: In your new application, did again provide information about jobs you and your spouse were looking at in the UK? Or where you planned to live there? Or where you are presently working?

[donald_f]

Question: In your new application, did again provide information about jobs you and your spouse were looking at in the UK? Or where you planned to live there? Or where you are presently working?

No there was no mention of any job opportunity for both of us or anything about where we plan to live. where I am working is required as part of the online application.

[Jambo]

I suspect the ECO just pull out your file, saw the previous refusal, didn't question it, didn't understand the points in the cover letter because of luck of knowledge in EEA regulations and just refused again based on the same reasons.

I believe the visa section in Mumbay need a training session about EEA regulations.

[Directive/2004/38/EC]

I believe the visa section in Mumbay need a training session about EEA regulations.

Understatement of the day

[Directive/2004/38/EC]

No there was no mention of any job opportunity for both of us or anything about where we plan to live. where I am working is required as part of the online application.

Next time you fill it in, consider writing "where I am working is not material for decision on the spouse of an EU citizen"

I think the idea of writing a sharply worded but clear simple complaint is very good. Send it to the local office.

[Jambo]

Have you contacted the visa section? Did you hear back from them?

[donald_f]

Have you contacted the visa section? Did you hear back from them?

Sent an email sometime back, used your draft.

[Jambo]

I suggest you chase them up and start the appeal process (sending the form. Paying the fee). As part of the appeal process, before a hearing is set, the post reviews the decision so you might not require the actual hearing but you prepare an appeal.

[donald_f]

I suggest you chase them up and start the appeal process (sending the form. Paying the fee). As part of the appeal process, before a hearing is set, the post reviews the decision so you might not require the actual hearing but you prepare an appeal.

There is already an appeal filed against my 2nd refusal and the ECO is set to respond to it before November end.

[donald_f]

Response from UKBA

Thank you for your email of 10 November 2012 regarding the refusal of your EEA family permit. You state in your email that the ECO has failed to consider the fact that your sponsor is not residing in the UK at present and therefore does not need to be a qualified person. I have reviewed the decision to refuse your EEA family permit and have read the refusal notice carefully and I am satisfied that the ECO has taken this into account and has assessed your application correctly.

As you will see from the refusal notice your application was refused under regulation 12 of the EEA regulations not regulation 6 as you state in your email. Regulation 12 states that if the EEA national is not residing in the UK at the time the application is made then they must plan on 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 order to reside in the UK in accordance with the regulations the EEA national needs to be a qualified person. A qualified person is defined as someone who is an EEA national and in the United Kingdom as-
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student.
(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if-
(a) he is temporarily unable to work as the result of an illness or accident;
(b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and-
(i) he was employed for one year or more before becoming unemployed;
(ii) he has been unemployed for no more than six months; or
(iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;
(c) he is involuntarily unemployed and has embarked on vocational training; or
(d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.
(3) A person who is no longer in self-employment shall not cease to be treated as a self-employed person for the purpose of paragraph (1)(c) if he is temporarily unable to pursue his activity as a self-employed person as the result of an illness or accident.
(4) For the purpose of paragraph (1)(a), "jobseeker" means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.

You have not provided any evidence to show that your sponsor is actively seeking employment in the UK and has a genuine chance of being engaged. Therefore she cannot be considered a job seeker and cannot show that she 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. Therefore she does not meet Part (ii )of regulation 12 of the EEA regulations.

You are entitled to appeal against the decision to refuse your EEA family permit. If you are still unhappy with the decision then I would advise you to follow the appeals process which is set out at www.justice.gov.uk.

I hope the above clarifies matters.

[Directive/2004/38/EC]

This is very funny! Except that it impacts your plans.

[Jambo]

Was this the response from your email to the BHC or a general complaint to UKBA.

This is just ridiculous. It seems that you have no option other than appeal as clearly they are not familiar with EEA regulations.

I would reply to this email stating that

May I suggest you contact the European Policy team in Liverpool and confirm with them your position as your response and the decision made by the ECO reflect a misunderstanding in the basics of EEA regulations. The UKBA EUN guidelines clearly states (EUN2.4) - "It is important not to test overall intentions in assessing applications for an EEA family permit. Also, there is an initial right of residence for 3 months, which means that an EEA national does not have to be exercising a treaty right immediately on arrival in the UK." There is no requirement to be a qualified person when a EEA Family Permit is issued if the EEA national is not residing in the UK. There is a period of 3 months in which the EEA national doesn't need to exercise treaty rights. In order to reside more than 3 months, the EEA national would need to exercise treaty rights but how he will achieve that is NOT a deciding factor in issuing a EEA Family Permit. This is a fundamental part of EEA regulation and I'm confident the European Policy team in Liverpool would agree with this view. I just don't understand why the post is forcing me to obtain the permit using an appeal. This is not a complicated case but a simple case which is being dragged for several months now due to the luck of understanding of the rules by the ECO."

[Directive/2004/38/EC]

It is also worth reading very carefully through http://eumovement.wordpress.com/2012/11 ... residence/
The ECJ Spain case is very clear.

Note also that Regulation 12 is also very clear:

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.

The key phrase is "on arrival in the UK"!

[keffers]

Its no use the applicant trying to usurp the ECO/ECM in the correct interpretation of the Regulations by arguing the interpretation.

The applicant needs to be able to provide at least relevant Upper Tribunal Interpreations that address the point he is making. The ECO has to comply with the Tribunals interpretation and not the applicants.

Literal interpretations can work both ways:

(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

Will be is an absolute; a certainty. Applying for jobs and giving an undertaking does not meet that standard if taken literally. Having a promise of a job and tickets paid for might. That's the danger when arguing on the basis of statutory provisions.

So what does the case law say? That's the way forward.

[donald_f]

Was this the response from your email to the BHC or a general complaint to UKBA.

This is just ridiculous. It seems that you have no option other than appeal as clearly they are not familiar with EEA regulations.

I would reply to this email stating that

May I suggest you contact the European Policy team in Liverpool and confirm with them your position as your response and the decision made by the ECO reflect a misunderstanding in the basics of EEA regulations. The UKBA EUN guidelines clearly states (EUN2.4) - "It is important not to test overall intentions in assessing applications for an EEA family permit. Also, there is an initial right of residence for 3 months, which means that an EEA national does not have to be exercising a treaty right immediately on arrival in the UK." There is no requirement to be a qualified person when a EEA Family Permit is issued if the EEA national is not residing in the UK. There is a period of 3 months in which the EEA national doesn't need to exercise treaty rights. In order to reside more than 3 months, the EEA national would need to exercise treaty rights but how he will achieve that is NOT a deciding factor in issuing a EEA Family Permit. This is a fundamental part of EEA regulation and I'm confident the European Policy team in Liverpool would agree with this view. I just don't understand why the post is forcing me to obtain the permit using an appeal. This is not a complicated case but a simple case which is being dragged for several months now due to the luck of understanding of the rules by the ECO."

This response was to the email sent to UKBA as per the draft you provided.

Also Note: This response is from Entry Clearance Manager


.........................................

[newbieholland]

They are taking a piss with you. Please check out the the policies and law mention on UKBA`s own site -

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

The content that should be interest to you is -

6. Rights of residence and residence documentation
6.1. Initial Right of Residence
For the first three months of any time spent in the UK an EEA national is considered to be resident by virtue of his nationality and does not need to be a qualified person. His non-EEA family members also have an automatic right of residence during this period. This is referred to as an ‘initial right of residence’. However, this right shall cease if the EEA national or family member become an unreasonable burden on the social assistance system.

Good luck!

[Jambo]

This response was to the email sent to UKBA as per the draft you provided.

Also Note: This response is from Entry Clearance Manager.

As you already have an appeal pending, my advice (other might disagree) is to send the text I wrote as a response both to the UKBA and the visa section addresses. Your best chance is convincing the ECM to consult with the team in the UK.

[EUspouse82]

I will advise that you immediately involve external bodies i.e. Solvit, possibly write a petition to the appropriate EU body or/and involve a lawyer to make representations on your behalf.

I have noticed that all the correspondence has been with the staff the UK Border Agency- any further personal communication with them is not necessary in my opinion. You have tried three times with the same outcome, it is time to use a different approach.


I will suggest you send a comprehensive , honest narrative of the history of your situation to EU Solvit and they will usually give you an easily understandable legal opinion on your case.

Clearly, there is something wrong here; it is either the ECOs are grossly incompetent or they have suitable grounds to continually refuse your application(s).

[Directive/2004/38/EC]

The applicant needs to be able to provide at least relevant Upper Tribunal Interpreations that address the point he is making. The ECO has to comply with the Tribunals interpretation and not the applicants

http://eumovement.wordpress.com/2012/11 ... residence/ contains the ECJ case law: ECJ case C-157/03, Commission v Spain [2005]

Are there also Upper Tribunal decisions?

[Directive/2004/38/EC]

Donald,

I have written out a thing which I think may be simple enough that the ECO might read it. https://dl.dropbox.com/u/27885818/priva ... ements.doc

Please let me know if you have any comments or thoughts on it.

If I were you....

If you have time, I would apply yet again. No harm in doing so. I would include the material wrote above. I would also include a cover letter (strongly worded). I would ask for the application to be handled by a person different than made the decision on your previous applications, and you strongly urge them to avoid legal liability by reviewing any refusal with senior case-work staff in the UK.

I would also write to Jonathan Devereaux (Assistant Director, Head of European Operational Policy) and explain the situation (you are married to an EU citizen and you both live outside the UK). Explain that you have applied 3 times, and have each time been refused because you are not yet "a qualified person". Say that you would like to formally complain. Explain that your EU spouses free movement rights are being blocked by the departments actions. Explain that you wish that the visa is immediately issued so that you can both exercise your rights to move to the UK. Explain that though you may still request compensation, you will look favourably if UKBA publicly apologizes and issues the visa immediately.

I would also consider requesting a Judicial Review in the UK. That would force them to issue the visa quickly, though it would cost. Your lawyer can advise.

[Jambo]

My sentiment here is that it is too much to expect the ECO to listen to the applicant. They clearly think they are right. Either convince them to ask for advice from the policy team in the UK or complain to UKBA in the UK so they instruct the visa section on the rules.

I believe there is also an appeal (following the second refusal) which is still pending.

[Directive/2004/38/EC]

I think the OP has 5 options, a number of which can be done in parallel:

(1) Appeal. This is being done but could take 3-6 months to resolve.

(2) Apply again. No downside except for the time it takes to submit a new application and go to give finger prints

(3) Launch a JR.

(4) Request compensation from UKBA. This has the feature of calling attention to your case by senior people not associated with the decisions.

(5) Formally complain to UKBA

Repeatedly applying may give a stream of NO NO NO NO results. But it will likely look like NO NO NO NO YES. So I think it is worth doing if the applicant has time.

Plus if you want to seek compensation, then it is nice to have a consistent stream of refusals blocking the EU citizen's right of free movement.

[donald_f]

I think the OP has 5 options, a number of which can be done in parallel:

(1) Appeal. This is being done but could take 3-6 months to resolve.

Hope to hear from the First-tier Tribunal after the 27-Nov-12 about the ECM's reply

(2) Apply again. No downside except for the time it takes to submit a new application and go to give finger prints

Every time I apply the UKBA decorates the last page of my passport with their stamp

(3) Launch a JR.

If cost is involved than its not an option for me.

(4) Request compensation from UKBA. This has the feature of calling attention to your case by senior people not associated with the decisions.

Can this happen before decision on my appeal is given by the First-tier Tribunal

(5) Formally complain to UKBA

Will definitely complain to the UKBA about the refusal decisions

Repeatedly applying may give a stream of NO NO NO NO results. But it will likely look like NO NO NO NO YES. So I think it is worth doing if the applicant has time.

Plus if you want to seek compensation, then it is nice to have a consistent stream of refusals blocking the EU citizen's right of free movement.

I am exploring the option of writing to Jonathan Devereaux as suggested

[donald_f]

Have replied back to the ECM with text posted by Jambo and Directive/2004/38/EC

Will post the reply once received.