EEA Partner's Residence Card Appeal

[bella3579]

Hi to everyone, and thank you in advance to anyone who responds to this post.

I applied in November 2015 from within the UK for an EEA Family Residence Card to join my Austrian partner here in London. However, this got refused last week, and I have until this Wednesday to decide whether to appeal the decision or not. (I was late getting my paperwork back from my lawyer, and even getting the news of the refusal.)

My lawyer (whom I've since let go of) unfortunately misguided me throughout my application, so I was under the assumption that I would definitely get it, as I felt we had proven sufficiently that my partner and I are in a durable relationship, and he assured me that we had.

However, since unfortunately we were living together in South Africa, we have very little official documentation to prove that we were co-habiting during our time there. It's a third world country that doesn't have the same thorough legal status as here in the UK. To compensate, we added Facebook conversation logs (filtering through over 10 000 messages!) and a plethora of photographs of us together. This was unfortunately not sufficient, which I can understand.

So my questions are these:
1) Do I have enough grounds to appeal their decision simply because I feel their decision is wrong? Do they need to have broken some sort of law for me to be allowed to appeal?
2) Am I allowed to submit new evidence in the appeal to attempt to counter their points of refusal?
3) Would it be better for me to fly home and to reapply from there instead of appealing while I am still here in the UK? (Even though they are allowed to send me home whenever they want)

Any help, at all, would be appreciated immeasurably. I understand that the time frame is very tight, but I'm hoping someone can lead me in the right direction.
Thank you in advance.

[bella3579]

If anybody could respond soon it would truly help me, please.

[noajthan]

...

So my questions are these:
1) Do I have enough grounds to appeal their decision simply because I feel their decision is wrong? Do they need to have broken some sort of law for me to be allowed to appeal?
2) Am I allowed to submit new evidence in the appeal to attempt to counter their points of refusal?
3) Would it be better for me to fly home and to reapply from there instead of appealing while I am still here in the UK? (Even though they are allowed to send me home whenever they want)

Any help, at all, would be appreciated immeasurably. I understand that the time frame is very tight, but I'm hoping someone can lead me in the right direction.
Thank you in advance.

Do you mean residence certificate (RC) or family permit (FP) ?

1) Not really.

2) You need substantial evidence of joint venture, future plans, co-habitation helps (but not actually compulsory under EU law), child may help

You can see how caseworker probably assesses your case in HO guidance here:
https://www.gov.uk/government/uploads/s ... _clean.pdf
- see page 23+

[bella3579]

Do you mean residence certificate (RC) or family permit (FP) ?

1) Not really.

2) You need substantial evidence of joint venture, future plans, co-habitation helps (but not actually compulsory under EU law), child may help
- see page 23+

Thanks so much for your response, noajthan. I appreciate it.

I'm applying for the RC, which my (ex)lawyer referred to as the "Residence Card". Apologies, I've heard both for so long I thought they were the same thing

Sadly, there's no child. We provided evidence of our relationship through Facebook conversations and a LOT of photographs, which strangely they didn't address at all in the refusal letter.

Our main issue is that for most of our relationship we lived together in South Africa, but I moved in with him. For that reason, all of the bills and contracts etc were in his name, and I had no policies or anything of the sort. So I understand their point, but there must be a way that we can prove it without the same documentation as would be required in the UK? SA is a very different place where things are done entirely opposite to how they're done here. Which makes it very tricky...

[noajthan]

Thanks so much for your response, noajthan. I appreciate it.

I'm applying for the RC, which my (ex)lawyer referred to as the "Residence Card". Apologies, I've heard both for so long I thought they were the same thing

Sadly, there's no child. We provided evidence of our relationship through Facebook conversations and a LOT of photographs, which strangely they didn't address at all in the refusal letter.

Our main issue is that for most of our relationship we lived together in South Africa, but I moved in with him. For that reason, all of the bills and contracts etc were in his name, and I had no policies or anything of the sort. So I understand their point, but there must be a way that we can prove it without the same documentation as would be required in the UK? SA is a very different place where things are done entirely opposite to how they're done here. Which makes it very tricky...

The linked doc shows what HO will be looking for.
Their rules are derived from stringent UK immigration-related rules as EU law does not go into specifics.
So the UK requirement is not strictly compliant with EU law - that may give you some leverage in any appeal, but you still need to prove the relationship (rather than simply live in it and assert it exists).

Plan B is to marry, then you become a direct family member rather than an extended family member of your EEA national sponsor.

Good luck.

[bella3579]

The linked doc shows what HO will be looking for.
Their rules are derived from stringent UK immigration-related rules as EU law does not go into specifics.
So the UK requirement is not strictly compliant with EU law - that may give you some leverage in any appeal, but you still need to prove the relationship (rather than simply live in it and assert it exists).

Plan B is to marry, then you become a direct family member rather than an extended family member of your EEA national sponsor.

Good luck.

I'm looking through the document now, thank you. It's very thorough and is the first thing that's given me a decisive path on how to write the appeal cover letter. I feel much more confident about it now.

And we can't really get married, because then it's a "marriage of convenience" because they have on file that I've just applied for this visa.

[noajthan]

I'm looking through the document now, thank you. It's very thorough and is the first thing that's given me a decisive path on how to write the appeal cover letter. I feel much more confident about it now.

And we can't really get married, because then it's a "marriage of convenience" because they have on file that I've just applied for this visa.

You may well have been planning to marry anyway.

And, as I understand it, its up to HO to prove a m-o-c rather than the other way around.

In my judgment, the legal burden lies on the Secretary of State to prove that an otherwise valid marriage is a marriage of convenience so as to justify the refusal of an application for a residence card under the EEA Regulations.

Ref https://www.freemovement.org.uk/court-o ... me-office/

[bella3579]

You may well have been planning to marry anyway.

And, as I understand it, its up to HO to prove a m-o-c rather than the other way around.

In my judgment, the legal burden lies on the Secretary of State to prove that an otherwise valid marriage is a marriage of convenience so as to justify the refusal of an application for a residence card under the EEA Regulations.

Ref https://www.freemovement.org.uk/court-o ... me-office/

All good points, thank you. Worth thinking about.

[manci]

It would help if you posted the actual wording of the reasons for the refusal.

Please describe the photos you submitted. Were they from the 2 year period of interest and were they date stamped?

Please describe the Facebook conversations you submitted.

However, since unfortunately we were living together in South Africa, we have very little official documentation to prove that we were co-habiting during our time there

Have you anything at all to show that you lived at your partners address, e.g. bank/credit card/investment statements, driving and/or vehicle licence, payslips or even letters addressed to you?

[bella3579]

It would help if you posted the actual wording of the reasons for the refusal.

Please describe the photos you submitted. Were they from the 2 year period of interest and were they date stamped?

Please describe the Facebook conversations you submitted.

Have you anything at all to show that you lived at your partners address, e.g. bank/credit card/investment statements, driving and/or vehicle licence, payslips or even letters addressed to you?

Hi manci, thanks for the response.

The photo's consisted of approximately 40/45 images put together on 5 sheets of paper, so as to make it all manageable and easily viewable to the home office representative. I had far more images, but thought it might be too much (on the advice of my lawyer). Unfortunately, since all of the pictures were sent to me through WhatsApp or other messaging means, they are not time stamped, nor have they retained their metadata.

The Facebook conversations were excerpts from over 10 000 messages between my partner and I spanning from our very first message to ones where we discussed moving somewhere together, and made plans for the UK.

I had one document to show that I lived at my partner's address, however all of my accounts were either addressed to my work premises, or to my home in a different city that I shared with my mother. This is the way of things in South Africa, and I don't know how to explain that in legal terms.

[bella3579]

The wording of the refusal is as follows:

"You have not provided sufficient documentation to suggest you are in a durable relationship. You have provided evidence that you reside at the same address as your sponsor this is in the form of a photocopied tenancy agreement dated xx/xx/xxx, you have also provided a photocopied lease document from _______ Properties dated xx/xx/xxxx. Other documents supplied are photocopied sky and eon bills and a job centre plus document and some bank statements. It is noted that all of these documents apart from a joint eon document are all in your sponsors name and nothing has been provided to show you live at the same premises as your sponsor apart from the tenancy agreement. "

They then go on to explain that they don't accept photocopied documents, which my lawyer assured me they did, and also I have nothing other than printouts and photocopies for the official documentation because I was finding all of this from within the UK, and it is difficult to get anything official on paper from SA.

[noajthan]

The wording of the refusal is as follows:

...

The caseworker has evidently interpreted your evidence as indicating you are flatmates or in a boyfriend/girlfriend type of relationship.
These types of relationships are not categorised by HO as being 'akin to marriage' which is what they look for in a durable (and persisting) relationship.

As I mentioned above, HO rules are based on UK domestic rules rather than EU law. But you still need evidence to rebut the refusal - and you don't appear to have a lot of evidence.

Here's some UK domestic guidance that may give you a steer:
https://www.gov.uk/government/publicati ... rs-qualify

Do you have plans for marriage, or a business venture - anything that shows joint venture/joint enterprise?

[rotor]

I'm not saying it's right (you seem like a genuine person), but I can sort of see it from the HO's point of view. They asked for proof of cohabitation (since you aren't married), and you didn't provide it. Where do they draw the line? "They seem like nice people, let's give it to them". In all my experience with the HO, that has never once been the case. We are human beings, with individual circumstances and hopes and dreams, and the HO is a computer that has no feelings. It's up there as one of the more challenging experiences of my life, and I will be incredibly happy the day I no longer have to interact with the HO ever again.

I suggest you read up very carefully on the case worker guidance, and try to come up with a plan -- ultimately you need to satisfy their requirements. That plan may involve getting married, or the two of you moving back to SA to cohabitate "with proof". I personally don't think your marriage would be seen as "of convenience", but it is definitely something to carefully think about. If you do decide to get married, whatever you do don't get married by proxy! I still don't understand why people do this, but it seems to be a thing.

[Casa]

If you decide to get married in the UK, bear in mind that you will have to register your intent to marry at a Home Office designated Registry Office. The Registrar is then legally bound to notify the HO, who can if they wish extend the notification period from 28 to 70 days in order to interview you both before the wedding can take place.

[bella3579]

Thank you all for your responses.

I think that's what I'm struggling with the most at the moment. My knee-jerk reaction is to appeal because I know they're wrong, but I fully understand why they refused it in the first place.

Essentially what I'm battling with is:
1) Can I legally appeal if they haven't broken any laws or rules? And,
2) Should I just suck it up now instead of bothering with the appeal, and fly back home to try to gather more evidence and just reapply?

My one concern with reapplying is that I cannot apply for the Residence Card from South Africa, only for the 6 month EEA Family Visitors Permit. So I would need to get that one, come back here, and then apply for this one all over again.

It sounds like the general consensus is that I shouldn't appeal though?

[bella3579]

I think what confuses me the most is; why would they allow me to appeal the decision if it was so clear and clean cut for them to make?

[manci]

Thank you all for your responses.

I think that's what I'm struggling with the most at the moment. My knee-jerk reaction is to appeal because I know they're wrong, but I fully understand why they refused it in the first place.

Essentially what I'm battling with is:
1) Can I legally appeal if they haven't broken any laws or rules? And,
yes you can if you have been given the right to appeal.

2) Should I just suck it up now instead of bothering with the appeal, and fly back home to try to gather more evidence and just reapply?
that is am option but appealing will gain you time. The appeal can be withdrawn any time before it is decided

My one concern with reapplying is that I cannot apply for the Residence Card from South Africa, only for the 6 month EEA Family Visitors Permit. So I would need to get that one, come back here, and then apply for this one all over again.
If you strengthen your case by producing more evidence you would be applying for an EEA Family Permit which is not a visitor visa. If you are successful you can then return to the UK. Note that once you returned with the EEA FP you don't have to, but can, apply for a RC. If you do apply for a RC it should be automatically granted provided you meet the other requirements which are mainly to do with your Austrian partner exercising treaty rights. .

It sounds like the general consensus is that I shouldn't appeal though?

[noajthan]

I think what confuses me the most is; why would they allow me to appeal the decision if it was so clear and clean cut for them to make?

If you have an appeal right associated with the application then it has to be offered to you.

Unfortunately, your problem is your lack of evidence to back your application.

[bella3579]

I'm still quite tempted to appeal. Maybe I'm being naive.

One other thing: In the refusal letter they state the following:
"We would expect to see further more compelling evidence such as joint bank statement showing a joint commitment to finances, joint council tax bills, evidence that you have travelled together, or any other documentation to suggest that you are in a relationship akin to that of a marriage."

Would I be allowed to try to gather some of that and present it in the hearing because they mentioned it in the refusal letter? Or would it count as new evidence?

Thank you again, everyone

[bella3579]

If you do decide to get married, whatever you do don't get married by proxy! I still don't understand why people do this, but it seems to be a thing.

I've never even heard of that!

My partner and I have spoken about it before, and in our minds, if we got married now it would be marred with the pressure of this application, which we think would be detrimental to our relationship. I wouldn't want to do that just to be able to stay in this country.

[manci]

This is from the IAFT-5 guidance:

You must give as much detail as possible and should raise all the grounds of appeal you wish to rely on. The Tribunal is not permitted to consider grounds that you raise which have not been the subject of a decision by the Home Office unless the Home Office agrees to the Tribunal considering those new grounds.

The wording of the refusal letter was: ""We would expect to see further more compelling evidence ....." This rather vague wording suggests to me that they may consider further evidence of the relationship and if you manage to produce it for the appeal the HO may in fact grant you the RC and then the appeal would be abandoned - but this is only IMHO.

btw - what leave to enter did you have and when y did you enter the UK?

[noajthan]

Bit of case law - may help:
http://www.immigrationboards.com/eea-ro ... l#p1292065

[bella3579]

This is from the IAFT-5 guidance:

You must give as much detail as possible and should raise all the grounds of appeal you wish to rely on. The Tribunal is not permitted to consider grounds that you raise which have not been the subject of a decision by the Home Office unless the Home Office agrees to the Tribunal considering those new grounds.

The wording of the refusal letter was: ""We would expect to see further more compelling evidence ....." This rather vague wording suggests to me that they may consider further evidence of the relationship and if you manage to produce it for the appeal the HO may in fact grant you the RC and then the appeal would be abandoned - but this is only IMHO.

btw - what leave to enter did you have and when y did you enter the UK?

That was my reasoning. It almost seems like they're requesting more evidence. The problem is, thanks to the lax structure in South Africa, I don't have enough additional evidence to prove myself.

I came here on a visitor's visa to see my sister, who had a child and has settled here, so I came to help. Then my partner decided he wanted to stay, and here we are.

[bella3579]

I spoke to an immigration advisor earlier who said that we should fly home and get married, and then reapply. He said that it wouldn't possibly be labelled as a marriage of convenience. According to him, if they threatened that, we could say "Well we wanted to apply for the correct visa, but you wanted documents that don't exist, so we had to do this instead". Which sounds a bit risky. Anyone know if it would be as simple as he's implying?

[rotor]

My partner and I have spoken about it before, and in our minds, if we got married now it would be marred with the pressure of this application, which we think would be detrimental to our relationship. I wouldn't want to do that just to be able to stay in this country.

Good on you -- I went through the same process, and I also did not want to rush it. Fortunately my now wife was able to come to the UK on a student visa, which gave us the time to decide whether we wanted to marry.