EEA4 Refused Insufficient Evidence of Treaty Rights - Appeal

[zimlady]

Hello everyone ... I have been following all the EEA4 discussion (and previously EEA2). I am most grateful to all the contributors for educating and encouraging those applying and waiting.

My situation is that I am the non EEA spouse of an EU national, we have been married for 27 years, and I applied for EEA4 in May 2013, having arrived in the UK in November 2007, and receiving my RC after a long wait, in 2008.

My husband worked in formal employment for 2 1/2 years, before becoming self employed in 2010.

I submitted P60's for the formal employment and copies of his tax submissions for the years in self employment.

My application was refused on the grounds that I did not provide enough evidence of my husband exercising treaty rights during self employment, as the HO need to see bank statements, invoices, proof of advertising, and so on to prove his earnings. At no point was additional information requested.

I have appealed online (I received the decision yesterday), and I am preparing all the documents to send by recorded post / courier this afternoon.

Does anyone know if I continue on my holiday, which is booked for Friday, travelling with my EU spouse, my marriage certificate, and of course the Directive (can't leave that behind, has been my saviour in the past, another story for another day), can UKBA refuse me entry, when I arrive back at Gatwick? I imagine my COA, which is still in date, is now invalid?

I have just spoken with a member of UKBA, who has informed me that as I have no leave to remain in my passport, I 'may be refused entry' on my return. Can anyone advise, please?

Thanks again, everyone...

[Jambo]

The fact that the HO refused to confirm you hold PR status doesn't affect your automatic rights to reside in the UK.

Assuming that your RC is still valid or that you are non visa national, you will have no problem getting to the border where you could enter based on Regulation 11 (4). Passports, marriage certificate + evidence of treaty rights will allow you entry. You might be delayed/questioned for a few minutes if the HO systems would show your PR application has been refused but that should not prevent you from entering.

[zimlady]

Jambo, thank you for your reply. The fact is that I am a visa national, Zimbabwean, and my RC 'expired' on 1 September 2013. I guess I'm between a rock and a hard place with this one. Reading and dissecting the regulations, and the Home Office Immigration Directorate's Instructions, regarding EEA nationals and their family members, I believe they have to let me in, obviously after some severe scrutiny.

This document was issued in July 06. Would it still apply? If yes, then I will carry a copy of this, together with the marriage certificate.

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

5.3.1. Non-EEA nationals seeking admission as family members of EEA nationals who
are unable to produce a valid passport, family permit, or residence card

5.3.2. Seeking admission at port
EEA applicants at port should be treated as persons seeking admission unless explicit reference is made to applying for a residence card, in which case please refer to paragraph
5.3.3. Admission cases will fall into one of the following categories:
i) produces satisfactory evidence on arrival
The person arrives to accompany or join an EEA national and is carrying satisfactory
evidence of his/her identity and that he/she is the family member of the EEA national and
that the EEA national has a right to reside in the UK. The person should be admitted for 6
months on a Code 1A. Complete landing card.


Hopefully, they won't decide to cart me off ...

[Jambo]

How would you travel?

The issue in your case is not entering the UK but getting to the border. You will not be able to board a flight without a valid "visa". Producing the Directive at the airline check-in counter won't work. I don't think the airline would accept the CoA either.

[zimlady]

We are booked with Easyjet. It's starting to look worse and worse... Thankfully, I work for a company that understands the regs, but the travel side is not looking great. As the COA has technically been invalidated by the refusal, I'm guessing the much needed holiday (I NEED the sun!) is going to be cancelled.

Prior to the refusal, I requested my passport back, and asked about travelling with the COA, and I was told that a note would be put on my file on their computers, which would allow me re-entry, but that I may be questioned more thoroughly beforehand.

I suppose the bright side is that the refusal came BEFORE I left to Spain, rather than while I was there, so I would have been refused entry without knowing why.

[Jambo]

I suppose the bright side is that the refusal came BEFORE I left to Spain, rather than while I was there, so I would have been refused entry without knowing why.

You would have not been refused entry if travelling with your spouse even if you travel without a visa at all. The issue is with the airline. Low cost airlines are probably even more difficult.

[zimlady]

Jambo, am I likely to have difficulties if we were to abandon the flight plans and drive instead? Thank you for your valued input.

[zimlady]

Hi Everyone

An interesting little development on my case, I would appreciate any thoughts.

I submitted my appeal following the refusal of my PR, and at the same time, I sent in loads of supporting documents to prove my husband's exercising of treaty rights as self employed. These were bank statements, invoices, and other business documents.

Anyway, my caseworker has now asked me to withdraw my appeal, so she can issue the decision. Is this correct? And does anyone know if I am able to get my £140 for oral appeal back? The appeal was lodged 10 days ago, and I have not yet had a hearing date.

I need to email her confirmation that the appeal has been withdrawn, and her response to my question of 'what if it is a negative decision?' was 'you can appeal again'. Money making scheme?

Thanks for all the contributions.

[Jambo]

Hi Everyone

An interesting little development on my case, I would appreciate any thoughts.

I submitted my appeal following the refusal of my PR, and at the same time, I sent in loads of supporting documents to prove my husband's exercising of treaty rights as self employed. These were bank statements, invoices, and other business documents.

Anyway, my caseworker has now asked me to withdraw my appeal, so she can issue the decision. Is this correct? And does anyone know if I am able to get my £140 for oral appeal back? The appeal was lodged 10 days ago, and I have not yet had a hearing date.

I need to email her confirmation that the appeal has been withdrawn, and her response to my question of 'what if it is a negative decision?' was 'you can appeal again'. Money making scheme?

Thanks for all the contributions.

The reconsideration process and the appeals process are entirely separate and independent of one other. I would write back to her stating that under the EEA regulations there is no legal requirement to withdraw the appeal for a reconsideration decision to be made. But of course, you don't see a reason to maintain the appeal if the RC is granted following the reconsideration.

[zimlady]

Could this be based on an erroneous decision in the first place? Is it possible that UKBA could be reprimanded by the 'powers that be' in a case like this?

Has anyone else been in the situation where the caseworker has requested withdrawal of an appeal, while reconsidering a refusal?

[Jambo]

It could be but just tell her there is a cost for an appeal and you are not willing to spend another £140 for a decision you believe shouldn't have been refused in the first place.

[zimlady]

Thanks Jambo, I will let her know that tomorrow, she seemed surprised when I told her I had paid £140, definitely don't want to do that twice, as the Appeals page on UKBA says no refund unless payment was taken in error.

Will keep you all updated.