Appeal: introducing new arguments

[mrsliyai]

Regulation 36 (3) of the new eea regulations says

"If a person claims to be in a durable relationship with an EEA national, that person may not appeal under these Regulations without producing—

(a)a valid passport; and

(b)either—

(i)an EEA family permit; or

(ii)sufficient evidence to satisfy the Secretary of State that the person is in a relationship with the EEA national."

My partners refusal letter acknowledged that he was in a relationship with an eea national (me) but refused the application because they said surinder singh does not include extended family members and they questioned my self-employment in Malta. Does this mean that his appeal will be heard and a decision made?

If not, what are our options now that the deadline for a judicial review is over?

[noajthan]

To avoid confusion & jumbled responses, I have moved your question to its own thread (this one).

[mrsliyai]

Thank you, and apologies for the mess up. x

[Obie]

Did he have a residence card in Malta

[mrsliyai]

Yes, he has a Maltese residence card. We entered the UK on his article 10 residence card and he was given an EEA dependent ink stamp at the airport (in case that's relevant).

[Obie]

Are you married?

[mrsliyai]

No. But we've been together for 4 years (with proof) and we have two children together (2.5years old and 10months old).

Our refusal letter says that while he has been my partner for 4 years and we two children together they can not give him a residence card because surinder Singh does not apply to extended family members.

[Obie]

You case is a nice one in light of the fact that he was granted right of entry under regulation 11.

I think there is a tight of appeal.

[mrsliyai]

I'm not really sure what to do if they refuse to hear the case because of a lack of jurisdiction.

From what I read I thought that he would have a right of appeal because the home office used their discretion twice (At the airport and for the ukrc application) and both times found that he was my durable partner. So my appeal isn't whether he is a family member or not, its whether a durable partner can benefit from surinder Singh or not. But thats my unprofessional opinion..

[Obie]

You are pretty much on the right track in your understanding, but the stamp at port is not an EEA family permit, so there are slight issue. However a good argument in law can be made on it.

[vinny]

Despite contrary judgments, the UKVI maintains that SS is not applicable to extended family members.

Applicants claiming to be extended family members (for example, durable partners or dependent relatives) of British citizens do not have a right of residence under the 2006 regulations (as amended). If the applicant is an extended family member, you must refuse the application.

[mrsliyai]

I contacted Your Europe Advice and they said that the stamp doesn't constitute a visa, so it doesn't carry the same rights but after requesting information on the stamp from the home office under the freedom of information act they said the only time the stamp can be given is after the immigration officer has been satisfied that you are a family member of an eu citizen with the right of entry under eea regulations.

Your Europe Advice then advised that we use this information to argue that they had examined our proof of relationship, and proof of my self-employment and then decided that he had a right of entry in accordance with eea regulations.

[Obie]

This person was granted entry at port under the regulation.


Therefore the position may be assimilated to an EFM with an EEA family peemit.

[mrsliyai]

Despite contrary judgments, the UKVI maintains that SS is not applicable to extended family members.

Applicants claiming to be extended family members (for example, durable partners or dependent relatives) of British citizens do not have a right of residence under the 2006 regulations (as amended). If the applicant is an extended family member, you must refuse the application.

We knew this at the time that we applied but we just thought we would have to appeal but then after we appealed the sala ruling came into play and now I'm not sure what to do really.

I know durable partners of British citizens with ukrc's, one of them was granted his in April and I know one who was granted a family permit in August. The home office have been really inconsistent with durable partners but it was always just said to expect an appeal and you'd likely win

[vinny]

Therefore the position may be assimilated to an EFM with an EEA family peemit.

(4) This regulation does not apply—

(a)where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or

(b)to a person who is only eligible to be treated as a family member as a result of regulation 7(3) (extended family members treated as family members).

However, appealing may produce a positive result, if the judgment finds the above unacceptable.

[mrsliyai]

This person was granted entry at port under the regulation.


Therefore the position may be assimilated to an EFM with an EEA family peemit.

Thank you so much for your input, I really really appreciate it.

[mrsliyai]

Therefore the position may be assimilated to an EFM with an EEA family peemit.

(4) This regulation does not apply—

(a)where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or

(b)to a person who is only eligible to be treated as a family member as a result of regulation 7(3) (extended family members treated as family members).

However, appealing may produce a positive result, if the judgment finds the above unacceptable.

I don't know, there have been two cases (that I know of) involving extended family members of returning British citizens. Both found that surinder singh does apply to extended family members but here we are again.

[Obie]

Therefore the position may be assimilated to an EFM with an EEA family peemit.

(4) This regulation does not apply—

(a)where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or

(b)to a person who is only eligible to be treated as a family member as a result of regulation 7(3) (extended family members treated as family members).

However, appealing may produce a positive result, if the judgment finds the above unacceptable.

For reason I have given before, these regulation are unlawful and breaches at least 3 CJEU principles.

The 7 (3) point will not affect OP I believe.

However there is no doubt in my mind that these regulations are ultra vires

[secret.simon]

For reason I have given before, these regulation are unlawful and breaches at least 3 CJEU principles.

I could not find the earlier post enumerating the CJEU principles breached by the new Regulations. Could I request you to link to them here for future reference?

[mrsliyai]

My partner applied EEA EFM in 2016 and was refused with appeal right before Sala. I have made a list of arguments for why Sala doesn't apply in his case but if the judge refuses to accept these can we argue that while he is my efm he is our British daughters direct family member.

Chavez-Vilchez and Others case appears to be saying that a child can sponsor a parent for surinder singh.

I wont be introducing new evidence because we gave proof of her citizenship (passport), proof that she was lawfully residing in host country (eea residence card in her name), proof of relationship (her birth certificate with him named as father) and proof of the time she was in Malta (plane tickets coming and going ans photos). All of these documents were included in my partners original application that we are appealing but i was listed as the sponsor.

Do we need to make a new application or can we ask that we keep this current appeal going but ask that the evidence already submitted with the application to be looked at differently to view our baby as his sponsor?

[mrsliyai]

I had my appeal on the 20th and today the letter came informing us that we had won the appeal. The judge found that Sala didnt apply to our case and she allowed the appeal under eea regulations.

We are now waiting to see if the home office appeal.

Thank you for all of your advice, I really appreciate it.