Further evidence required by UK Embassy

[Nerila]

Deal All,

First of all apologies if I post this topic in the wrong section as I am not sure where our case belongs.

I am an EEA national and we have incorrectly applied for a settlement visa for my husband to come to UK. Our application was refused end Dec 2011. We made an appeal beg Jan 2012. Since in the refusal letter it was stated that our application was also considered under EEA rules, our solicitor based the appeal on this.

12/07/2012 Court hearing
03/08/2012 Successful appeal
06/09/2012 passport submitted to UK Embassy in Lagos
25/09/2012 phone call to submit further evidence that we are still in the subsisting relationship!
02/10/2012 evidence submitted

Questions:

1. Could you please let me know whether it is usual/legal to request further evidence since they have a determination letter where it is stated that I was present in the court hearing. No one represented UK Border Agency though!
2. How long it might take for them to issue EEA family permit once they have the evidence?

Thank you!

[Directive/2004/38/EC]

What were the exact grounds of the first refusal?
What does your lawyer say?

In general if they have lost the appeal they need to issue the visa. If for some reason they have overlooked some big aspect of the application, you could imagine they could refuse on some other reason.

[Greenie]

On what grounds was the appeal allowed?

[Nerila]

Our application was refused mainly bacause they thought it's a marriage of convenience. Also, they have raised the issue of the language test since he didn't do it. All these aspects were covered in the court as we provided plenty of evidence. We covered the language issue also even though it was not the main concern. As I mentioned, the appeal was based on the EEA rules and the judge went with it.
The lawyer was kinda surprised but said to basically play their game, so we now submitted almost the same same package of documents that we have provided in the court.
Can they still refuse it even though there is a court decision to issue visa?

[Greenie]

What does it say at the bottom of the determination about the grounds on which the appeal was allowed? Does it say 'this appeal is allowed under the Eea regulations' or something similar or does it say 'the decision is not in accordance with the law' or similar?

[Directive/2004/38/EC]

Since their refusal was overturned, they must issue the visa. They can not refuse it on the same grounds. They would instead have to appeal themselves, for which I think the time limit is passed.

They might be able to refuse it if the grounds were very different, eg. that your husband was a threat to national security.

Note that UKBA should now pay you back the application fees for the appeal. The visa should have been issued at no cost. Instead you have had to pay a fee. I would ask you please to request the money from UKBA once the visa is issued and your husband is in the UK.

Also, they have raised the issue of the language test since he didn't do it.
...
We covered the language issue also even though it was not the main concern.

In what way did you cover the issue?

[Greenie]

Unless we know on what grounds the appeal was allowed it cannot be said with certainty that the ukba is obliged to issue the permit.

[Directive/2004/38/EC]

Unless we know on what grounds the appeal was allowed it cannot be said with certainty that the ukba is obliged to issue the permit.

For my education, can you give a theoretical example of why we need to know the grounds the appeal was allowed?

[Greenie]

If for example the appeal was allowed because the decision was 'not in accordance with the law' the effect is that the application is remitted back to the ukba to reconsider. The reason i am asking in this case is because the Op mentioned that they made a settlement application by mistake leading me to wonder whether the appeal was only allowed to a limited extent and remitted to the ukba to reconsider.

[Nerila]

At the end of the determination letter it says:

"I allow this appeal.
No anonymity direction is made"

I am not if this is helpful, but the judge started his findings in the determination letter with the following:

"The notice of decision shows that the appellant's application was considered under Paragraph 281 and 230 (11) of the Immigration Rules. I am a little unclear as to why the entry clearance officer considered the application under the Immigration Rules given that the appellant was married to an EEA national exercising Treaty Rights. It may be that the appellant did not help himself by ticking the box at Section 8.1.1 where he indicated that he was seeking entry as the spouse of someone settled in the United Kingdom. However, the appellant must be forgiven for this given that he is a layperson. What remained unexplained is why the entry clearance officer, who one presumes is sufficiently trained to discharge his duties as an entry clearance officer, could not establish from Section 8.2.10 of the application form, that the appellant's 'sponsor' was in fact residing in the United Kingdom as an EEA national"

He then went on to deliberate different points of EEA regulations and directive 2004/38/EC.

As for language test, we have obtained his university diploma and grades and used NARIC to do a conversion/equivalent in UK which was compared to UK Bachelors degree. The judge also mentioned that since the appellant was not subject to the requirements of paragraph 281 of the Immigration Rules, there was no need for him to satisfy English language test.

Yes, fees were also awarded by the court. But how do I get these back? It was actually me who paid it from my credit card? Is there a way I can chase them up? Obviously once visa issue is finalized.

Thank you all for your comments.