EEA Residency permit refused

[balixonline]

Hiya,
a friend of mine got married with an EU national and sent his application for EEA residency permit. The application was refused claiming that EU National is already married. Upon a long investigation they found out that shes been a victim of ID theft as her ID was used by a solicitor who was even shown on a BBC documentary for this fraud.

Both husband and wife have been in contact with police but the police is steering them away saying its an immigration matter not a police matter.

Their appeal hearing is due in Dec. but again the problem i see is that theoratically shes married twice now. Although the first one was fake and second one is genuine. How do they go about voiding the first one? what can they do about it especially when police is useless for about 3 months now despite of them contacting them twice a week.

any suggestions?

[dalebutt]

Whilst the marriage is null and void, they will need to obtain an annulment certificate from the family court, if the court grants an annulment on the basis that the first marriage is null and void ab initio, then logically the present marriage should be valid ab initio as well, that is my view only, it may well be different in practise. Your friend will need to consult with a good family lawyer as the rules are slightly complicated.

[Obie]

I agree.

If the first marriage is void, then the second marriage is clearly legal.

It is not the case of voidable, it is clearly void.

It is simply fraud, he did not conduct any marriage, so there is nothing to void.

It is a police matter, as there is a question of bigamy and identity fraud, which could have a devastating effect on the individual.

[dalebutt]

Hi Obie, are you sure about that? My understanding is, although if a marriage appears void for whatever reason it is, once cannot simply say it is void because it was fraudulent and expect the authority to agree with them, they will need a legal document to say prove that assertion, even if the marriage has been conducted without their knowledge.

Sham marriages are also basis to seek an annulment from the court, whilst the authorities accept that sham marriages are fraudulent, the parties will need an absolute certificate or an annulment certificate to prove it, they couldn't just say it is a fraudulent marriage and expect the authority to accept it. I may be wrong, but this is my understanding of the matter.

[Obie]

I get your point , and I may have to consult the family law book again if I am not correct. As I understand two catogories of marriages are entitled to annulment, void and voidable marriages.

A bigamous marriage is void, a marriage that was never consummated is voidable.

In the above category of case there was no marriage carried out by the OP. So it is void. There is no discretion of the court in granting an annulment in regards to void marriages, but they have in regards to voidable marriages.

I accept they have to undertake a procedure, but it is an automatic process.

[el patron]

I accept they have to undertake a procedure, but it is an automatic process.

A statutory declaration may assist.

[balixonline]

I get your point , and I may have to consult the family law book again if I am not correct. As I understand two catogories of marriages are entitled to annulment, void and voidable marriages.

A bigamous marriage is void, a marriage that was never consummated is voidable.

In the above category of case there was no marriage carried out by the OP. So it is void. There is no discretion of the court in granting an annulment in regards to void marriages, but they have in regards to voidable marriages.

I accept they have to undertake a procedure, but it is an automatic process.

This is precisely what I have been telling them lot.. ok let me write little history here as it may help.

* The first application for residency permit was refused, they appealed.
* A day before appeal HomeOffice pulled the case back for review.
* It was again refused on grounds that sponsor is already married
* Applicant then requested proof which was not provided but very late. Documents were Certificate of Approval and Marriage certificate

On the background the applicant solicitor was a jerk who didn't do any investigation for whole two years, anyways I know both of them as the women works for me and she discussed it all last April.

I told her to contact police which they did, Police has been sort of investigating this case since April 2014 and finally came back early September 2014 saying its an immigration matter not a police matter

On the other hand 2nd week of Sept they received documents for homeoffice (COA and Marriage certificate) the marriage was conducted when both husband and wife were not even in the UK. Its a classic case of a solicitor who was even appeared on BBC documentary for doing sham marriages

I then printed out details of that dodgy solicitor and put some papers together for them to go back to the police and help them with what really has happened as per the ISR report the police has been doing investigations on a wrong route.

Now its been 3 weeks they are trying to contact the police and police simply is avoiding them. I thought to advise them to simply apply to null the first marriage but again my argument is same as Obie argument. The first marriage is Void not voidable as to consider something voidable it has to exist in the first place.

The next hearing is is December.

[el patron]

If they also relied upon an application in the alternative as a durable partner the 'other' marriage would not be a bar to the issue of a EEA Residence Card. Not ideal but a partial remedy in the interim.

[dalebutt]

Why did you think it isn't ideal? I agree with your post, supposing they meet the requirement as durable partner, the application should succeed.

[el patron]

Hi Obie, are you sure about that? My understanding is, although if a marriage appears void for whatever reason it is, once cannot simply say it is void because it was fraudulent and expect the authority to agree with them, they will need a legal document to say prove that assertion, even if the marriage has been conducted without their knowledge.

Sham marriages are also basis to seek an annulment from the court, whilst the authorities accept that sham marriages are fraudulent, the parties will need an absolute certificate or an annulment certificate to prove it, they couldn't just say it is a fraudulent marriage and expect the authority to accept it. I may be wrong, but this is my understanding of the matter.

In a sham marriage generally there is valid consent, not the position here.

[el patron]

Why did you think it isn't ideal? I agree with your post, supposing they meet the requirement as durable partner, the application should succeed.

party would lose rights immediately on breakdown of partnership? COA with no right to work etc.

[John]

a friend of mine got married with an EU national and sent his application for EEA residency permit. The application was refused claiming that EU National is already married

I have just read through this whole topic. Interesting!

But surely isn't it as basic as this? The EU national was not previously married, simply someone of the same name got married, but this particular person had not.

But in a sense this is not primarily an immigration matter. It is a Family Law matter, and advice needs to be sought from a Family Law Solicitor. Having resolved that, the immigration matter will simply fall into place.