ESC
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So it does. I hadn't seen anything wrong with it first time I'd read it; perhaps it could be written a little more clearly. (I'm just trying to work out how the ECO could have come to the conclusion made).Directive/2004/38/EC wrote: The guidance is subtle but fine. In this particular case both the applicant and the EU citizen are outside of the UK and bolded (1) applies.
I would be inclined, in parallel to your appeal to lodge a complaint to UKBA. Essentially, the complaint should say that ECO is ignoring or has misunderstood the advice that their policy team has provided.donald_f wrote: I have all copies of my correspondence with them.
My correspondence till now has been with the Mumbai post and the Policy team.
I am now planning to email Thomas Greig, Regional Director- South Asia, U.K. Border Agency
Dear Sir,
This refers to your emails below. Please note the Entry Clearance Manager has decided to overturn the original decision and we will now issue you a visa.
Please submit your passport to our office at the below mentioned address between 10:30am and 12:30pm on any day from Monday to Friday. Alternatively you may submit your passport via courier or send it by post.
The British Deputy High Commission
Naman Chambers,
C/32 G Block Bandra Kurla Complex,
Bandra (East)
Mumbai 400 051.
For any further queries, you may call our helpline number 022 6650 2181 from 1:30pm to 4:00pm, Monday to Thursday and from 08:00am to 10:00am on Fridays.
Yours faithfully,
Casework Team, Western India
British Deputy High Commission, Mumbai
South Asia Group
International Operations and Visas
UK Border Agency
You have received this payment for one of three reasons:
1) You have requested a refund from the Tribunal
2) The Tribunal have identified that you have made a payment in error
If you have any questions about this refund, please ring 0300 123 1711.
3) Your appeal was successful and a Judge made a fee award to this value in their decision.
If you have any questions regarding a fee award please go to http://www.ukba.homeoffice.gov.uk/visas ... o/appeals/.
A credit for the amount of £80.00 has been applied from Hm Courts & Tribunals Service.
.Directive/2004/38/EC wrote:This is a template letter that I would personally use were I applying for an EEA family permit. You can feel free to use parts of it for your personal use.
It is intended to simply lay out the law in order to avoid any confusion by the ECO. I think each line easy to understand and accurate. I would welcome any feedback!
I am a married to a citizen of XXXX (an EU/EEA member state). We live together in YYYY. We plan to travel together to the UK. (Letter from my spouse is attached)
I have provided my passport, a photocopy of my spouse’s EU/EEA passport, and our marriage certificate. This is the required proof under EU free movement law of identity and family relationship.
I meet all of the requirements for issuing an EEA family permit, as exhaustively listed in Regulation 12 of the European Regulations. No other Regulation is relevant to the issue of EEA Family Permits, except the mentioned Regulation 21.
There are no preconditions to our entry or stay in the UK during the first 3 months [Regulation 13 of the European Regulations and Article 6 of Directive 2004/38/EC]
Should we decide to remain in the UK after three months has past, it is clear that my EU citizen spouse can be required at that point to be a “qualified person” (Regulation 14 of the European Regulations and Article 7 of Directive 2004/38/EC)
Article 8 & 9 of Directive 2004/38/EC are clear that the deadline for Residence Card formalities (such as proof of being a qualified person) “may not be less than three months from the date of arrival” in the UK
There is no obligation to fulfil any of the requirements or formalities of long term residence for the issue of the EEA Family Permit [ECJ case C-157/03, Commission v Spain [2005]]
Please refer to 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.”
A refusal of this application will interfere with the free movement of my EU spouse and of our family.
Should you have any questions of law, please discuss it carefully with Euro Casework
If you refuse this application, I will formally complain to senior management of UKBA, will formally complain to the European Commission, and will seek compensation. (See point 10)
An EEA Family Permit must be issued at no cost, giving me “every facility”, and on the basis of a priority process.
This letter forms part of my application
Thank you for your timely and professional attention to this application.
Great to see you got a refund. On the other hand a visa ought to have been issued within three weeks of application. Complain! You've waited long enough already.donald_f wrote:I have received an email from justice.gsi.gov.uk for refund, Yet to receive my passport with EEA FP from UKBA. Its been 20 days now, was told by the staff at UKBA that it would take 3-4 weeks.
You have received this payment for one of three reasons:
1) You have requested a refund from the Tribunal
2) The Tribunal have identified that you have made a payment in error
If you have any questions about this refund, please ring 0300 123 1711.
3) Your appeal was successful and a Judge made a fee award to this value in their decision.
If you have any questions regarding a fee award please go to http://www.ukba.homeoffice.gov.uk/visas ... o/appeals/.
A credit for the amount of £80.00 has been applied from Hm Courts & Tribunals Service.
To the Appellant and Respondent
Enclosed is the First-tier Tribunal’s determination of the above appeal. Either party may apply to the First-tier Tribunal for permission to-appeal to the Upper Tribunal on a point of law arising from the First-tier Tribunal’s decision.
Any application must be made in accordance with the relevant Procedure Rules and must be made within 5 days of receipt of this determination, except where the Appellant is outside the United Kingdom, in which case any application by the Appellant must be made within 28 days of receipt of this determination.
All Applications must be sent to:
First-tier Tribunal:
Loughborough Support Centre, PO Box 7866, Loughborough, Leics, LEll 2XZ
DIRECTION ON AWARD OF COSTS
To the Respondent
ln determining the appeal, the judge has awarded costs to the appellant in the amount of £80.00. You are therefore directed, unless you intend to seek permission to appeal to the relevant appellate court, to make payment of this amount to the appellant.
DETERMINATION AND REASONS
1. This is an appeal against the respondent's decision made on 16 July 2012 to refuse the appellant's application for EEA Family Permit to enter the United Kingdom under the Immigration EEA Regulations 2006. The appellant is a national of India born on XX February 197X who is married to an,EEA citizen, Mrs [My wife].
2. I am not satisfied that there are grounds for making an anonymity direction in this case and none is made.
3. The burden of proof rests with the appellant on the balance of probabilities. The Immigration (European Economic Area) Regulations 2006 are the relevant EEA Regulations.
4. I had before me the respondent's bundle which contents were in accordance with the index prepared by the entry clearance manager on 8 November 2012.
5. In the refusal notice the respondent made reference to Regulation 6 of the EEA Regulations and decided that the appellant's wife was not exercising her Treaty rights in accordance with this Regulation as she was neither in the United Kingdom nor genuinely actively seeking employment.
6. The appellant's wife has the right of admission to the United Kingdom under Regulation 11(1). The appellant has the right to be admitted with his wife if he produces a valid passport and an EEA family permit. Under Regulation 12 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 the EEA national will be travelling to the United Kingdom within 6 months of the date of the application (12(1)(a)).
7. The appellant should therefore be granted, assuming his wife is travelling to the United Kingdom, an EEA family permit for a minimum of 3 months. His wife and he, as well as their child, are entitled to reside in the United Kingdom for a period not exceeding 3 months beginning on the date on which they are admitted (Regulation 13(1) and (2)). This is referred to as an ’Initial right of residence’.
8. If the family wish to have an ’Extended'right of residence’ then the appellant's wife will have to show she is a qualified person in accordance with the Regulations. A ‘Qualified person’ is defined at Regulation 6(1). Regulation 6(4) provides that a ’jobseeker’ means a person who enters the United Kingdom in order to seek employment and can provide evidence that he (or she) is seeking employment and has a genuine chance of being engaged.
9. I note that the appellant's wife obtained a second class Bachelor of Science degree in April 2002, i.e. over 10 years ago. She also produced a letter to confirm she had worked for less than 1 year, from 1 June 2006 to 8 March 2007 as a Human Resources Assistant. There is evidence she has registered with various. job sites and recruiters on the internet. I am not satisfied that the appellant has established at this stage his wife is a qualified person as defined under Regulation 6. However, he should still be granted an EEA family permit for 3 months, if his wife is travelling to the United Kingdom, so that he can accompany her.
10.I am satisfied on the evidence before me on the balance of probabilities that it has been established the appellant is a family member of an EEA national as claimed and should be issued a family permit in compliance with Regulation 12 of the Immigration Regulations 2006.
DECISION
The appeal is allowed.
No anonymity direction is made.
Signed Date 25 Ianuary 2013
Judge of the First-tier Tribunal .
TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a fee award of any fee which has been paid or may be payable for the following reason. The respondent was mistaken in the interpretation of the EEA Regulations.
Signed Dated 25 Ianuary 2013
A Judge of the First-tier Tribunal
There was no application this time. I just handed over my passport at the BHC Mumbai in person. I think my third refusal has been overturned.EUsmileWEallsmile wrote:Great to see you got a refund. On the other hand a visa ought to have been issued within three weeks of application. Complain! You've waited long enough already.donald_f wrote:I have received an email from justice.gsi.gov.uk for refund, Yet to receive my passport with EEA FP from UKBA. Its been 20 days now, was told by the staff at UKBA that it would take 3-4 weeks.
You have received this payment for one of three reasons:
1) You have requested a refund from the Tribunal
2) The Tribunal have identified that you have made a payment in error
If you have any questions about this refund, please ring 0300 123 1711.
3) Your appeal was successful and a Judge made a fee award to this value in their decision.
If you have any questions regarding a fee award please go to http://www.ukba.homeoffice.gov.uk/visas ... o/appeals/.
A credit for the amount of £80.00 has been applied from Hm Courts & Tribunals Service.
No I did not ask for the refund. Its part of the UKBA policy to refund the fees against a successful appeal.EUsmileWEallsmile wrote:It is very interesting to see the fee being returned. Did you ask for this specifically or did the judge do so of their own accord?
Thanks for clarifying that.donald_f wrote:No I did not ask for the refund. Its part of the UKBA policy to refund the fees against a successful appeal.EUsmileWEallsmile wrote:It is very interesting to see the fee being returned. Did you ask for this specifically or did the judge do so of their own accord?
http://www.ukba.homeoffice.gov.uk/visas ... o/appeals/
Jambo wrote:In that case, the reasons for refusal are completely rubbish.donald_f wrote: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.
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.
