EEA family permit application possible?

[cwc]

Hello all,

I'm asking this question on behalf of my dad as we are really confused with all the rules and regulations.

My dad has remarried about 4 years ago, his wife is of a Malaysian national, living in Malaysia. My dad is a British citizen holding a UK passport.

About 2 years ago, they applied for a UK Spousal visa and got rejected, on the grounds of the fact his wife failed to disclose her previous immigration history in which she overstayed in the UK, and because of the deception she is effectively banned from reapplying for 10 years. They were allowed to appeal but decided not to as the solicitors said that chances of success were very slim.

I have come across the EEA family permit, I wanted to ask whether my dad's wife would be able to apply for this even with the ban for UK Visa? Especially as the UK is part of the EEA, and the rules of application would abide by EU laws rather than UK laws?

Thanks in anticipation!

[Lucapooka]

The 10 year ban under paragraph 320 7B of the rules should be waived for a settlement application so I imagine you are referring to a refusal under 320(11) rather than a ban. This would have to relate to other activity that compounded to further frustrate the immigration rules. You should clarify this with your legal advisers as, otherwise, a new application is possible. If there has been only one initial application it could have been refused under paragraph 320 7A of the rules (citing false declaration). However, a subsequent application would be considered under 320 7C which lifts the ban arising from the previous application (unless the additional activity considered under 320 11 is invoked). Complicated stuff so take proper advice!

She would be eligible for treatment under EU rules (where no such bans or limits apply) only if your father were to go to live and work in another EU state with her, and then apply to return to the UK.

[cwc]

Thanks for your reply Lucapooka, that's really informative!

My dad will seek legal advice if he knows there's an application he can make. But we wanted to know whether it was pointless first.

I remember the ECO officer stating in his decision statement that she would be refused any applications from 10 years of the decision.

Just so I understand correctly, are you saying that a subsequent application will not be accepted if 320 (11) was applied in the decision, otherwise she may be able to apply again for a settlement/spousal visa as that type of visa lifts the ban?

Thanks

[Lucapooka]

It depends on the actual wording of the previous refusal notice at that time and which paragraphs were cited.

If 320 7A alone was cited then another application is possible as the 10 year ban arising from the previous application will be waived. If, in addition to 320 7A, 320 (11) was cited then this is a problem as it can be reapplied to each and every application. 320(11) is refusal rather than a ban and has no time limit; it would have to be argued on appeal.

[fysicus]

for the EEA regulations to apply, cwc's dad should live (or have lived) in another EU country (i.e. not the UK).
There is no indication of this in cwc's story, and I think this thread is better moved to a more appropriate place.