EEA Partner's Residence Card Appeal

[noajthan]

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?

Yes, if its a genuine marriage then all good.
Even if called to interview, a genuine couple in a genuine marriage should be able to pass with flying colours (allowing for a few blushing-bride type nerves).

As shown by the link I posted for you earlier, the onus is on HO to prove a moc.

However overstaying on a visitor visa is more of a concern;
without the endorsement of a switch to the EU migration trajectory, (as validated by a RC), that is in effect what you have done.
That may have put paid to any hopes of any future visit visas to UK.

[manci]

@noajthan
EEA applications are not covered by section 3C but what is the situation as regards appeals?

@bella3579
In answer to your question, you have been given the right to appeal because you convinced the HO that you are in a relationship with your EEA national partner but you have not demonstrated to their satisfaction that the relationship is durable.

[noajthan]

@noajthan
EEA applications are not covered by section 3C but what is the situation as regards appeals?

What I mean is OP arrived on a visit visa (under UK regulations);
OP then jumped ship to EU regs;
OP has now run into trouble as HO has refused the RC which puts the basis of her present stay in UK under question.

As an EFM the OP needed that RC.

If the OP ever reapplies for a visit visa (for any reason) its not clear how the fact OP did not leave on her visit visa will be viewed by HO.
I'm doubtful it would be viewed favourably, that is all.

[manci]

@noajthan

I was just wondering (didn't have time to check) whether if she decided to appeal that would or would not trigger section 3C - hence the question.

If it did she could stay in the UK while the appeal was pending but if not she would become an overstayer once her visitor visa expired.

[noajthan]

@noajthan

I was just wondering (didn't have time to check) whether if she decided to appeal that would or would not trigger section 3C - hence the question.

If it did she could stay in the UK while the appeal was pending but if not she would become an overstayer once her visitor visa expired.

@manci, understood - but I don't know about 3C and those matters.
Will have to wait for the big guns.

[noajthan]

On the question of overstay...

Decisions which can be taken under UK immigration legislation only and not under the regulations are where a non-EEA national has not previously been engaged with or recognised by the EEA regime.

For example, a visa national overstays their period of limited leave to enter as a visitor, and then applies for a residence card on the basis of marriage to an EEA national.

They are unable to provide proof of their claimed relationship to the EEA national and the application is refused.

As the person was neither admitted to nor got a right to reside in the UK under the EEA Regulations, for the purpose of enforcement action
they should be dealt with as an overstayer under section 10 of the 1999 Act and not the EEA Regulation

https://www.gov.uk/government/uploads/s ... _clean.pdf

[bella3579]

So after reading through roughly a million and one forum posts, immigration documents and other documents telling me I'm not welcome here, I've decided not to appeal. I have no new evidence to substantiate the claims that the Home Office has a problem with, so in effect I would be running into a court house and begging a judge.

Instead, it seems my two best options are the marriage route, or to reapply here. However since I still don't have the evidence I know they want to see, I doubt a reapplication would be successful at all, and then I worry that the risk of being labelled as an overstayer increases. But if I'm married and get the EEA RC, I shouldn't ever need a visitor's visa again, effectively.

My previous lawyer assured me that it would be safe for me to apply for this visa despite it meaning that I overstay on my current visitor's one, stating that I would suffer no negative consequences, which I have in writing. So if anybody does question it from HO, I'm going to have to rely on that to validate why I am still here. Hopefully it will be enough.

Might have some wedding bells in my future sooner than I thought...

Thanks to all of you for your advice

[bella3579]

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.

I'm really glad it worked out for you guys I must admit, if I had the money to pay for university again, I'd come here on a student visa any day. If all else fails and I still want to come here in a few years, that might be my best option. But yeah, good for you

[noajthan]

...

My previous lawyer assured me that it would be safe for me to apply for this visa despite it meaning that I overstay on my current visitor's one, stating that I would suffer no negative consequences, which I have in writing. So if anybody does question it from HO, I'm going to have to rely on that to validate why I am still here. Hopefully it will be enough.

Might have some wedding bells in my future sooner than I thought...

Thanks to all of you for your advice

It's not really about being welcome or unwelcome, the HO will be completely dispassionate and indifferent (in an economic sense) on that score.

Unfortunately, you started off on the wrong foot with some misleading legal advice. It seems clear you have made yourself an overstayer due to that.

Summer wedding - lovely.
Good luck.

[bella3579]

It's not really about being welcome or unwelcome, the HO will be completely dispassionate and indifferent (in an economic sense) on that score.

Truthfully I fully respect their decision, and if I was in their position I would probably have done the same thing. I'm just snarky because I'm bitter Misplaced humour is one of my strong points.

[manci]

@noajthan

On the question of overstay...

Understood but the difference in the OP's case is that she has the right to appeal the decision refusing the RC and this situation is not covered by the linked document.

The OP is in the UK with a visitor visa issued under UK Immigration Rules and the visa is probably near its expiry date. By applying for a RC she wanted to establish her status under EEA rules as an EFM but she has not been successful. However, she has been given the right to appeal because the HO considered that even though she established that she was in a relationship with her Austrian partner she hasn't provided sufficient evidence to show that it was a durable relationship.

NB: it is a separate issue that the degree of proof required to show that a relationship is durable is not necessarily the same under EEA directives as the HO describes it in their caseworker guidance and the OP's appeal may succeed on this ground alone.

IMHO section 3c doesn't apply in the OP's case because her application was not for a variation of her extant leave.

Visitor visas cannot generally be extended beyond 6 months. However, in this case I just wonder if she appealed the RC refusal decision and also made an in-time application to extend her visitor's leave on form FLR(O) on the grounds of the pending appeal she might just be successful in extending her visitor's leave? Is there any relevant caselaw?

[bella3579]

Hi everyone

So I applied for an EEA Residence Card as an unmarried partner of an Austrian national, and it got refused on the grounds that I don't have enough official documentation to prove that the duration of our relationship exceeds 2 years. I do not blame them for their rejection whatsoever, but since I still want to stay with my partner I have sought other methods of doing so.

After seeking advice from an immigration consultant, he recommended a strange scheme. He suggested that we fly back to South Africa very soon, get married, and on the same day he will submit a fresh application for me as a married partner.

Of course, I am incredibly concerned that if we were to take this route, we would be accused of arranging a "Marriage of Convenience". Does anybody know if it would be legal to do what he suggested, and would it guarantee me getting the visa or would I have the same problems as with the previous one?

Any help or suggestions at all would be incredibly appreciated.
Thank you in advance

[Casa]

There's no reason for this to be refused as a sham marriage, assuming you have evidence of a subsisting and genuine relationship. The advice seems to be sound.

[noajthan]

Hi everyone

So I applied for an EEA Residence Card as an unmarried partner of an Austrian national, and it got refused on the grounds that I don't have enough official documentation to prove that the duration of our relationship exceeds 2 years. I do not blame them for their rejection whatsoever, but since I still want to stay with my partner I have sought other methods of doing so.

After seeking advice from an immigration consultant, he recommended a strange scheme. He suggested that we fly back to South Africa very soon, get married, and on the same day he will submit a fresh application for me as a married partner.

Of course, I am incredibly concerned that if we were to take this route, we would be accused of arranging a "Marriage of Convenience". Does anybody know if it would be legal to do what he suggested, and would it guarantee me getting the visa or would I have the same problems as with the previous one?

Any help or suggestions at all would be incredibly appreciated.
Thank you in advance

HO is playing hardball here and applying its rules based on UK immigration regulations (as EU law doesn't cover such specifics); that is to say UK is at variance with EU law here.

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

You may be able to make a case based on that.

Regarding marriage of convenience:
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/

[noajthan]

Posts merged.

Multiple posts

[bella3579]

Posts merged.

Multiple posts

I wasn't aware of this rule, thank you for merging the two posts!

[bella3579]

There's no reason for this to be refused as a sham marriage, assuming you have evidence of a subsisting and genuine relationship. The advice seems to be sound.

Thanks for clearing that up a bit. I'm just worried we go through all of this and they find a reason to refuse me again. Financially I think this is probably the last time I can try to get here.

Thanks for the advice