EEA 4 Application refused! No right of appeal

[EUsmileWEallsmile]

I do not know much about the appeals process. I know quite a bit about the application process. (I imagine that if you submit originals to the home office, they can also be used in the appeal as long as you make that clear).

You can apply again. Originals are generally expected.

1. You would be expected to demonstrate that your husband and you are married (marriage certificate).
2. Your husband's valid passport.
3. Your valid passport.
4. Evidence that you have attained PR (you know about this already, but make it clear how it came about and its equivalence to PR).
5. Evidence that your husband has resided in the UK for five years with you.
6. Perhaps, evidence that you have not lost PR (been absent for more than 2 years) - a simple statement to this effect should suffice.

Also include a letter explaining the peculiarities of your case (the ILR under the old rules, your previous application, the mishandling of the application).

In your letter, make it clear that the decision maker did not take into account that you had submitted your original current passport and did not appear to understand the significance of the ILR. Keep your tone matter of fact, but make it clear that you are complaining and expect priority as a result of the inconvenience caused.

[EUsmileWEallsmile]

Had a reply from one of the emails that I sent to say that our case has been passed to a colleague in Liverpool for re-consideration.

Excellent.

[IyaCiara]

I do not know much about the appeals process. I know quite a bit about the application process. (I imagine that if you submit originals to the home office, they can also be used in the appeal as long as you make that clear).

You can apply again. Originals are generally expected.

1. You would be expected to demonstrate that your husband and you are married (marriage certificate).
2. Your husband's valid passport.
3. Your valid passport.
4. Evidence that you have attained PR (you know about this already, but make it clear how it came about and its equivalence to PR).
5. Evidence that your husband has resided in the UK for five years with you.
6. Perhaps, evidence that you have not lost PR (been absent for more than 2 years) - a simple statement to this effect should suffice.

Also include a letter explaining the peculiarities of your case (the ILR under the old rules, your previous application, the mishandling of the application).

In your letter, make it clear that the decision maker did not take into account that you had submitted your original current passport and did not appear to understand the significance of the ILR. Keep your tone matter of fact, but make it clear that you are complaining and expect priority as a result of the inconvenience caused.

Thanks EU. Version 12/2012 of the EEA4 application form now states the following:

If your EEA national family member has a Document certifying permanent residence: proof that they have not been absent from the UK for more than 2 consecutive years since they gained the right of permanent residence. This can include tenancy agreements, utility bills and bank statements

Now that the case has been sent for reconsideration, I'm hoping that we won't need to re-apply. But if we do, I'll certainly take your points into account.

Wonder how long this reconsideration will take?

[IyaCiara]

Hi All,

I had the following email from Home Office this morning:

Hello,

Your enquiry has been passed to me. Having read the detail below, I have asked my team to reconsider the decision. However, we will require your expired and current passport so we can confirm that your ILR status and travel history.

I am sorry that you do not feel that we have acted in an unreasonable way and be assured that we will look to answer the points you have raised. I will ask one of my team to contact you today.

Thanks,

Whilst I am happy that someone is finally dealing with this, I feel that they continue to be unreasonable in asking to see my passports. My current passport is still with Home Office (EEA2 application for my mother in law) so they can see it easily if they need. My expired passport containing my ILR status under the 2000 Regulations was returned to me with my husbands refusal letter in December.

I know that the easiest way forward would be to just send them what they require, however, they have seen everything that is required and, on principle, I feel that they should make their decision without seeing the passports again. Also, attached to the email that I sent are scanned copies of my current passport and expired passport.

So, should I send the passports or should I email back and let them know that they have already seen both passports?

Thanks.

[keffers]

For crying out loud...

Someone is trying to help - just give them what they want before you turn a positive into a negative.

I'm sure the person trying to resolve this has a desk full of other complaints she/he can turn their attention to if they feel you are being awkard.

[IyaCiara]

For crying out loud...

Someone is trying to help - just give them what they want before you turn a positive into a negative.

I'm sure the person trying to resolve this has a desk full of other complaints she/he can turn their attention to if they feel you are being awkard.

I understand your point Keffers, but I am fed up with Home Office bureaucracy. I replied to the email and said that I didn't think it was necessary for me to send my passports again, but that if they insisted that I would send them. So lets see what happens next. Fingers crossed.

[spike_UK]

Just to update that today I have sent emails of complaint to UKBA and also Mark Harper and Theresa May.

Hi, can you please provide the email addresses you used, it seems to work and im trying to put a complaint in. Thanks and good luck with your case.

[spike_UK]

For crying out loud...

Someone is trying to help - just give them what they want before you turn a positive into a negative.

I'm sure the person trying to resolve this has a desk full of other complaints she/he can turn their attention to if they feel you are being awkard.

I understand your point Keffers, but I am fed up with Home Office bureaucracy. I replied to the email and said that I didn't think it was necessary for me to send my passports again, but that if they insisted that I would send them. So lets see what happens next. Fingers crossed.

I would recommend you to send them again, because it happened to me, and when I asked that they already had my documents they said they didn't copy all as the case worker didn't think is necessary!!

[Directive/2004/38/EC]

Your enquiry has been passed to me. Having read the detail below, I have asked my team to reconsider the decision. However, we will require your expired and current passport so we can confirm that your ILR status and travel history.

I am sorry that you do not feel that we have acted in an unreasonable way and be assured that we will look to answer the points you have raised. I will ask one of my team to contact you today.

Did you get this by email?

What about sending them a h.igh quality scan of the expired passport as a PDF. If you have the same for your current passport, send that also. That may be all they need. Say the original passports are available if needed.

Test 1: high quality
Test 2: h.igh quality

[IyaCiara]

Just to update that today I have sent emails of complaint to UKBA and also Mark Harper and Theresa May.

Hi, can you please provide the email addresses you used, it seems to work and im trying to put a complaint in. Thanks and good luck with your case.

Hi Spike,

The email addresses that I sent the complaint to are as follow:

Rob.Whiteman@homeoffice.gsi.gov.uk (his secretary forwarded the complaint onto Liverpool) this is the CEO of UKBA.

Steve.Lamb@homeoffice.gsi.gov.uk (email received back this morning saying he cannot deal with this but that he has forwarded this on to relevant department) this guy is a director for the London area.

ukbacustomercomplaints@homeoffice.gsi.gov.uk (no reply from this email yet) this is the general complaints email.

Also emailed Mark Harper who is the Immigration Minister and Theresa May who is the Home Secretary but no reply from them yet either.

Not sure if this is worth mentioning of even if there is any truth in it, but my husband seems to think that our complaint was taken more seriously and responded to more quickly because it was written by me (the EEA National) as opposed to him (the non-EEA National).

[IyaCiara]

Your enquiry has been passed to me. Having read the detail below, I have asked my team to reconsider the decision. However, we will require your expired and current passport so we can confirm that your ILR status and travel history.

I am sorry that you do not feel that we have acted in an unreasonable way and be assured that we will look to answer the points you have raised. I will ask one of my team to contact you today.

Did you get this by email?

What about sending them a h.igh quality scan of the expired passport as a PDF. If you have the same for your current passport, send that also. That may be all they need. Say the original passports are available if needed.

Test 1: rubbish quality
Test 2: h.igh quality

Hi Directive,

Yes, this info was sent by email. The initial email that was sent had 17 scanned documents attached - including my 2 passports. They emailed me back and said that the scanned copy wouldn't suffice and said that they definitely needed my expired passport back, so I sent that (to a specific person) by special delivery this afternoon. Then emailed them to ask how long the reconsideration would take and was told that they hope to get back to us in the next three weeks.

I think that best case scenario they will grant my husband's PR and realise that they made a mistake. Worst case scenario, we have submitted an appeal and will take this through the courts if necessary.

[IyaCiara]

@Spike, this is the complaint email that I sent to the Home Office. It's basically a watered down version of the grounds of appeal that we intend to use.

Dear Sir/Madam,

I have been compelled to write to you because on the 21st December 2012, a UKBA caseworker named Xxxx, refused to issue my husband, Xxxxxxx, with a permanent resident card in accordance with the Immigration (European Economic Area) Regulations 2006. Not only was my husband refused a permanent resident card, but his passport was retained and he was asked to make arrangements to leave the country.

The refusal letter from the UKBA to my husband says the following:

‘In order to qualify for this form of leave it is necessary to provide clear evidence of exercising treaty rights on the part of the EEA national in question. In support of this you have supplied a large number of documents that would indicate residence in the UK for the required period but there is very little documentation within this that would indicate exercising of treaty rights as required. One such document is a temporary contract of employment which covers the period xxx 2010 until xxx 2010. There are also a number of payslips provided dated in 2010 and 2009. However, there are substantial gaps in this evidential record and nothing that would indicate a continuous period of employment for a 5 year period. As this is the case your sponsor cannot be deemed to be a qualified person for this period and thus your application has been refused on this basis in respect of regulation 15(1)(b) of the Immigration (EEA) Regulations 2006’.

It appears that the conclusion above is perverse and unlawful, taking, as it does, account of matters that are not relevant. This decision has caused much distress to our family and I am in no doubt that the UKBA has acted illegally, irrationally, and certainly contrary to to the Immigration (EEA) Regulations 2006.

I am an Irish citizen and I have been a permanent resident of the UK since 2003. Although I acquired permanent residence prior to the 2006 Regulations being implemented, Schedule 4 (2)(4) leaves no room for doubt that the ILR stamp in my expired Irish passport must be treated as a document certifying permanent residence under the current 2006 Regulations.

Schedule 4 (2)(4)
Where a residence permit issued under the 2000 Regulations has been endorsed under the immigration rules to show permission to remain in the United Kingdom indefinitely it shall, after 29th April 2006, be treated as if it were a document certifying permanent residence issued under these Regulations and the holder of the permit shall be treated as a person with a permanent right of residence under regulation 15.

Therefore, I am a person that with a permanent right of residence under regulation 15 and cannot be required to re-qualify for the right of residence in the UK.

My husband was issued with a residence card after our marriage on xx April 2007. This residence card ran from xx September 2007 to xx September 2012.

15(1)(b) of The Immigration (European Economic Area) Regulations 2006 states the following:

15.—(1) The following persons shall acquire the right to reside in the United Kingdom permanently— (b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years.

Therefore, my husband actually acquired the right to reside permanently in the UK on the xx April 2012 on the basis of having resided with me for a continuous period of 5 years since the date of our marriage.

Furthermore, regulation 17 states the following:

17.—(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of—
(a)a valid passport; and
(b)proof that the applicant is such a family member.

All of the evidence required by regulation 17 was submitted to the UKBA at the time of his application in August 2012. Therefore the UKBA was obligated to issue a residence card to issue my husband with a permanent residence card that he applied for because Regulation 18 states:

18.—(2)(b) The Secretary of State must issue a person who is not an EEA national who has a permanent right of residence under regulation 15 with a permanent residence card no later than six months after the date on which an application for a permanent residence card and proof that the person has such a right is submitted to the Secretary of State.

Please note that my husband made his application on 28th August 2012. Therefore if his permanent residence card is not issued by the 27th February 2012 the United Kindom will be in breach of its obligations as a member of the EEA.

Furthermore, the refusal letter from the UKBA states:

‘Further to this the provided Irish passport number Xxxxxx is noted as having expired as of xx August 2007. You have provided no other form of identity document for your stated sponsor and as such there is no right of appeal against the decision as per regulation 26 (3) of the Immigration (European Economic Area) (Amendment) Regulations 2012’

However, my current passport was submitted to the UKBA when my husband submitted his application in August 2012. But because I needed my current passport to enrol at university, I requested that it be returned to me in September 2012. My passport was returned to my husband on the xx September 2012 with a covering letter that included the following:

'Please do not return your passport to the Home Office until it has been requested by a caseworker'

I now request that you issue my husband with a permanent resident card at your earliest possible convenience and certainly within 6 months of the application that he sent to you on 28th August 2012. I have attached copies of both of my passports, both of my husband's passports, our marriage certificate and miscellaneous documents for your attention.

In the meantime, I am requesting that my husband and I be compensated by the UKBA for the unnecessary worry, concern and distress that this perverse decision has caused our family.

Should you wish to discuss this matter with me further, then please do not hesitate to contact me on xxxxx.

I look forward to your prompt response.

Yours faithfully,

[IyaCiara]

You cannot automatically appeal. A proper notice of decision was not send to you stating you have a right of appeal under Regulation 26. You are applying to the Tribunal, saying you do have a right of appeal and that the allegations made by the HO was wrong.

If the judge feel that you do have a right of appeal, then a hearing date will be set, and the burden will then be diverted to the Secretary of State to show that you do not have a right of appeal.

We received a letter from the immigration tribunal this morning saying that we cannot appeal the decision of the UKBA because no 'relevant immigration decision' had been sent to us.

I know that the UKBA are reconsidering their initial decision at the moment, but if they still refuse to my husband with a permanent residence card what options will remain open to us?

Thanks.

[EUsmileWEallsmile]

I know that the UKBA are reconsidering their initial decision at the moment, but if they still refuse to my husband with a permanent residence card what options will remain open to us?

Thanks.

If this were to happen, you could re-apply. I suggest you let matters take their course and wait a little more.

[Obie]

This is why i adviced you to make a representation, asking the tribunal to refer the matter to a senior judge, and in the representation, explain that you do have a right of appeal, as you had provided the Secretary of State all the information needed, for your spouse to qualify for a right of appeal under Regulation 26. The Tribunal will then decide, and allow you to appeal, leaving the Secretary of State to rebuff this. Something i believe they will not be able to do.

The alternate option was to challenge the decision by way of Judicial Review.

Unfortunately my post seemed to have got lost in the pool of posts you received. Whatever the decision of their review, you reserve the right to sue them for damages and any losses you may have incurred.

[IyaCiara]

Thanks for your previous post Obie.

I had another email from UKBA today letting me know that my expired Irish passport is now in the possession of a senior caseworker who will reconsider the decision and advise us of the outcome in due course. They have also said that they will make a decision regarding my mother-in-laws EEA2 application form at the same time.

[mobismome]

Thanks for your previous post Obie.

I had another email from UKBA today letting me know that my expired Irish passport is now in the possession of a senior caseworker who will reconsider the decision and advise us of the outcome in due course. They have also said that they will make a decision regarding my mother-in-laws EEA2 application form at the same time.

hi iyaciara what is the email address you used to communicate with ukba with regards to your application thanks

[spike_UK]

Just to update that today I have sent emails of complaint to UKBA and also Mark Harper and Theresa May.

Hi, can you please provide the email addresses you used, it seems to work and im trying to put a complaint in. Thanks and good luck with your case.

Hi Spike,

The email addresses that I sent the complaint to are as follow:

Rob.Whiteman@homeoffice.gsi.gov.uk (his secretary forwarded the complaint onto Liverpool) this is the CEO of UKBA.

Steve.Lamb@homeoffice.gsi.gov.uk (email received back this morning saying he cannot deal with this but that he has forwarded this on to relevant department) this guy is a director for the London area.

ukbacustomercomplaints@homeoffice.gsi.gov.uk (no reply from this email yet) this is the general complaints email.

Also emailed Mark Harper who is the Immigration Minister and Theresa May who is the Home Secretary but no reply from them yet either.

Not sure if this is worth mentioning of even if there is any truth in it, but my husband seems to think that our complaint was taken more seriously and responded to more quickly because it was written by me (the EEA National) as opposed to him (the non-EEA National).

Hi IyaCiara, thanks for your advice, I have complaint to some of them and will wait, good luck to your husband.

[spike_UK]

Thanks for your previous post Obie.

I had another email from UKBA today letting me know that my expired Irish passport is now in the possession of a senior caseworker who will reconsider the decision and advise us of the outcome in due course. They have also said that they will make a decision regarding my mother-in-laws EEA2 application form at the same time.

hi iyaciara what is the email address you used to communicate with ukba with regards to your application thanks

Hi, email address are as above.

[IyaCiara]

Received my current Irish passport and my mother-in-law's passport by special delivery. Was very confused because I didn't ask for either passport to be returned. I emailed them and received the following reply:

Good afternoon.

I apologise for the confusion caused by the return of Mrs Xxxxxx passport.

In the event that Mrs xxxx application is successful, her residence card will be issued on a free standing document. Given that Mrs Xxxxxxx passport expires in March 2013, this is the procedure that would have been followed had we retained the passport. I have checked the application and all the other documentation submitted in support of her application remain on file so will be returned on completion of the application.

I note that on 14th January my colleague Mr Xxxxx said we would endeavour to decide your case within 3 weeks, and we still aim to have your husbands and mother-in-law’s cases concluded within this time frame.

Thank you

The waiting is driving me insane! But the three weeks will be up on the 4th February.......so just another 10 days of me and my husband being nervous wrecks! Please please please let the outcome be a positive one.

[EUsmileWEallsmile]

As long as you meet the requirements (and it would appear that you do), your case will be resolved successfully - even if this means eventually.

[mobismome]

please iyacrs send me the email you use to communicate with ukba be careful while typing to avoid mistakes thanks

[spike_UK]

please iyacrs send me the email you use to communicate with ukba be careful while typing to avoid mistakes thanks

Look at top of this page and you will see the email address.

[IyaCiara]

Saw our MP on Saturday. He was very confused about our case and kept insisting that the only way that a spouse can stay in the UK is by virtue of the domestic rules. I forwarded all of the email correspondence between the UKBA and ourselves to his secretary and received the following reply yesterday:

Having read the emails and seen that they have said they will try to get it done within 3 weeks of 14 January, I decided the best thing to do was to call the MP’s Hotline at the UKBA. They have confirmed the case is with a caseworker and being dealt with. I said I would call them back after three weeks if Mr Xxxxxx hasn’t heard from them and they said yes that would be fine. I am concerned that if the MP writes, they may call the file to do a reply and then it would hold everything up. If you have not heard by 5 February, can you email and I will call the hotline again. If they tell me that a decision is still not made, then I will automatically send a letter from Clive.

Good to know that the MP now seems to understand what is going on and is ready to act on our behalf if necessary.

[IyaCiara]

Update


My husband has a job interview on Monday and needs his passport to prove his identity and right to work in the UK. I emailed UKBA to ask if it would be possible for them to return my husband's passport and provide a letter that confirms his right to continue working after the 28th February deadline on his COA. I received the following response:

Thank you for your email. A decision has been made on your husbands case however, we are awaiting the conclusion of an internal process before we are able to release his decision. We aim to have our decision in the post to you on Monday. I apologise that we are unable to release the decision prior to the conclusion of the process.

Given the short timescale involved we would be unable to return of your husbands passport in order for it to arrive in time for your husbands interview on Monday so it will be returned when we notify him of the decision.

Please be assured that your husband and mother-in-laws cases are under active consideration.

So seemingly the decision has been made and hopefully it's a positive decision. But annoyed that my husband won't have his documents back in time for his interview especially since it's for a job he really wants.