Refusal EEA Family Permit - leaving or staying in the UK?

[MarcoGvantsa]

Hello everyone,
I am Marco. First of all, thank you for the great contribute of this forum, from yesterday I have read several posts which were very useful and could have been before the refusal.

This is our situation.
My background:
Italian (EEA national)
Currently living and working in the UK from 25th of October 2014 with part-time contract
Married my wife in Georgia on 3rd of October 2014 (marriage registered in Italy)

My wife’s background:
Georgian (non-EU)
Currently living in Georgia

She applied for the EEA Family Permit on 24th of November 2014. This is the list of documents that we have provided:
- Proof of relationship (marriage certificate, pictures, emails, tickets, etc).
- Passports (both)
- My declaration that my wife would be joining me
- Financial information (bank accounts, savings and income of both)
- My contract of employment in the UK
- My NIN number (received by post in the UK)
- Her TB test
- An additional sponsor’s document

Although I gave them copy of my contract of employment and of my NINO application, they stated this:
“You have provided a letter from Job Centre Plus which states that your spouse registered for a National Insurance Number (NINO) on 10/11/2014, as well as a job offer letter dated 25/10/2014 for employment as [JOB TITLE] in the UK. However, there is no evidence that your spouse took up this employment and there is no evidence that your spouse was in the UK when he submitted his application for a NINO”.

As consequence, she was refused her permit because she has “not provided any evidence that your spouse is currently residing in the UK in accordance with the EEA Regulations as qualified person, or that he is exercising his treaty rights”. Yet “I am not satisfied that your spouse intends to travel to the UK within 6 months”.

To me, it sounds ridiculous for two reasons:
a) I have provided them a real contract, signed by me and my employer, not a job offer letter.
b) It is physically impossible to submit an application for a NINO if you are not present in the UK, because they ask you and check your ID card/passport at the Job Centre Plus.

By reading many posts on this forum, I understood that so many documents were not necessary and that our application was not strong enough to get the visa. Specially on my cover letter, I guess I focused too much on convincing them that our relationship was legit, neglecting the aspects which we received a refusal for.

Having said that, I am going to quit my job and leave this country for the moment, but we do not want to give up so easily. My plan is to go back to Italy and she will try to get an Italian residence card there (like this we will stay together at least); after this we want to apply again for the EEA Family Permit from Rome.

Considering that I am going back to my country in 2 weeks, my questions are:

Will leaving the UK complicate our position in the moment we re-apply from Italy?

Would it be better if we re-apply while I am still living and working in the UK?

In any case, do we have strong grounds to appeal this refusal? Based on what article?


Sorry if I was not short and thank you for anyone who will answer and give an opinion.

[vinny]

The refusal does seem to be ridiculous.

You won't be exercising EEA treaty rights in your own country. Going to Italy may be more difficult for your wife, if Italy's immigration laws for spouses are more stricter than EEA free movement rights.

When did you initially arrive in the UK?

[MarcoGvantsa]

if Italy's immigration laws for spouses are more stricter than EEA free movement rights.

That's s a good point. I am not really sure, it should not be so difficult to get a Residence Card unless they became stricter lately.

When did you initially arrive in the UK?

14th of October 2014.

As far as I know up to 3 months it is not needed to exercise my treaty rights in the UK, and in fact I have not done it in my cover letter...but not even the Free movement rights to be honest, maybe should I have mentioned it? I am afraid that the ECO took this chance to refuse her EEA Family Permit because I have provided my contract.

[vinny]

You are correct.

You may initially reside in the UK for up to 3 months, without being a qualified person.

Moreover, a qualified person includes
Part-time worker, or
Job seeker.

You and her have already stated that she will be joining you. She has applied for an EEA family permit. Therefore, it's also ridiculous to refuse on the basis of “I am not satisfied that your spouse intends to travel to the UK within 6 months”.

[MarcoGvantsa]

Thank you again for your answer vinny, I appreciate your help.

Moreover, a qualified person includes
Part-time worker, or
Job seeker

That is what we supposed when applied, but how to prove that I am a part-time worker? I do not receive payslips, they do not accept my contract as proof, not even the bank receipt with the transaction of my salary of October! They might deny the evidence for years like this.

Anyway do you advice to appeal even if I m leaving the UK? Or it doesn't matter where I m living if the appeal is referred to my current situation?

[vinny]

Note also:

However, if the EEA national is yet to arrive in the UK, or is residing in the UK within the initial three month period of residence, there is no requirement for the EEA national to provide evidence they will, in future, exercise free movement rights.

[357mag]

First of all dont leave, you are here legally so why should you.

For first 3 months here you dont need to even be working, you just need to prove you are resident by copy of rent agreement/letter from landlord.

Your wife just needs to apply mentioning she is joining EEA citizen who is exercising treaty rights.

[Directive/2004/38/EC]

Why did your wife get a TB test? Was she required to do this?

[MarcoGvantsa]

Maybe I misunderstand something from the Regulations and it is not clear to me what approach I shall follow while re-applying/appealing. Exercising the Treaty Rights or my right of Free Movement? Shall I prove that I am residing and working or not?

Anyway this is the entire decision if it can help:
"The Decision
- You have stated that you married your spouse name surname, an Italian national in Georgia on 03.10.2014 and you have provided your marriage certificate in support of this.

- You have stated that you are not travelling with anyone else and that your spouse is currently living in the UK. You have provided a letter written by your spouse which states that he is currently employed in the UK earning minimum of ---- pounds per month, that he also possesses three bank accounts, one of which is LLoyds Bank account which is a UK bank, and that currently he is living by himself in the UK. However you have not provided any evidence of this. You have provided a letter from Job Centre Plus which states that your spouse registered for a National Insurance Number (NINO) on 10/11/2014, as well as a job offer letter dated 25/10/2014 for employment as [JOB TITLE] in the UK. However, there is no evidence that your spouse took up this employment and there is no evidence that your spouse was in the UK when he submitted his application for a NINO.

- You have not provided any evidence that your spouse is currently residing in the UK in accordance with the EEA regulations as qualified person , or that he is exercising his treaty rights. I am not satisfied that your spouse intends to travel to the UK within 6 months.

I therefore refuse your EEA family permit application because I am not satisfied that you meet all of the requirements of the Regulation 12 of the Immigration Regulation 2006."

[MarcoGvantsa]

Note also:

However, if the EEA national is yet to arrive in the UK, or is residing in the UK within the initial three month period of residence, there is no requirement for the EEA national to provide evidence they will, in future, exercise free movement rights.

That is true, but they rejected her because of Regulation 12, so because I am not residing. It is even more ridiculous then.

[MarcoGvantsa]

First of all dont leave, you are here legally so why should you.

Because this process might take months and me and my wife cannot afford it with money and time. Also staying so far for so long is a torture.

For first 3 months here you dont need to even be working, you just need to prove you are resident by copy of rent agreement/letter from landlord.

Sure? According to what vinny posted no, but the British Regulations 2006 article 12 says like that. This is another unclear aspect to me.

I do not hold any agreement from landlord, this is another issue for the moment I cannot get it. I am living in a house for a short let and I have been doing it from October because we were waiting for another visa before the family permit. I have a part-time job, in London it is not easy to get a contract when you do not have a high salary and references.

Your wife just needs to apply mentioning she is joining EEA citizen who is exercising treaty rights.

I have provided my contract and my British bank account receipt with the transaction of my salary, more than this? Should I have proved that I am residing too?

[MarcoGvantsa]

Why did your wife get a TB test? Was she required to do this?

No she was not. She had it from a previous refusal for a Tier 5 Visa for an Erasmus Placement (another story). And we submited it, we were not sure if it was required.

[357mag]

The only reason given for refusal is no evidence of being in UK.
This can be proved by rental contract or letter from landlord.
You should send a copy of this evidence and ask for a reconsideration.

[MarcoGvantsa]

The only reason given for refusal is no evidence of being in UK.
This can be proved by rental contract or letter from landlord.
You should send a copy of this evidence and ask for a reconsideration.

I do not hold any agreement from landlord, this is another issue for the moment I cannot get it. I am living in a house for a short let and I have been doing it from October because we were waiting for another visa before the family permit. I have a part-time job, in London it is not easy to get a contract when you do not have a high salary and references.

[Directive/2004/38/EC]

All you need is some proof that you are presently working for 10 or more hours per week.

Do you have a pay slip from your present job? Can you get a letter addressed to UKVI from your employer that says you are presently working?

You do not need to provide:
TB test
Proof that you have any assets at all (no info about bank accounts)
Any information about what your non-EU spouse is working or that she has any assets.
I would in fact actively discourage you from providing this information.

[vinny]

Note also:

However, if the EEA national is yet to arrive in the UK, or is residing in the UK within the initial three month period of residence, there is no requirement for the EEA national to provide evidence they will, in future, exercise free movement rights.

That is true, but they rejected her because of Regulation 12, so because I am not residing. It is even more ridiculous then.

your spouse is currently residing in the UK in accordance with the EEA regulations as qualified person, or that he is exercising his treaty rights.

However, there is no evidence that your spouse took up this employment and there is no evidence that your spouse was in the UK when he submitted his application for a NINO”.

Did they really think that you submitted your application for a NINO from outside the UK?

If they are disputing that you residing in the UK in accordance with the EEA regulations as qualified person, then they fail to understand that it's not a requirement to be a qualified person within the first three months. Within the first three months, you may exercise your treaty rights under Regulation 13.

If they don't think that you are in the UK at all, then Regulation 13 is still applicable.

Did she inform them when you initially arrived in the UK?

[Obie]

I fully agree with the views expressed.

Letter was wholly flawed.

Also see Bali (Family member: 3 month visit : Syria) [2013] UKUT 570 (IAC) (28 October 2013)

[MarcoGvantsa]

All you need is some proof that you are presently working for 10 or more hours per week.

In order to exercise my Treaty Rights as qualified person (so stay longer than 3 months) or to exercise my right of initial residence without proving that I am resident?

Sorry if I ask it, but me and my wife do not understand this aspect of the Regulation. We applied stating that she wants to join me in the UK for 6 months and providing my contract; now I guess she should state the same while re-applying, if I exercise my right of initial residence (article 13) I cannot state that I intend to remain more than 3 months. We interpreted it like, are we wrong?

Do you have a pay slip from your present job? Can you get a letter addressed to UKVI from your employer that says you are presently working?

Yes, I have already asked it and I will get both a letter from my employer and my payslip. I can also provide the receipt from the Job Centre Plus of when I had the interview for the NINo.

[MarcoGvantsa]

Did she inform them when you initially arrived in the UK?

No, we did not inform them, unfortunately I did not keep the ticket to London dated 14th of October. It was a mistake I guess, but I thought that the contract of employment was enough to prove that I am in the UK.

[MarcoGvantsa]

Also see Bali (Family member: 3 month visit : Syria) [2013] UKUT 570 (IAC) (28 October 2013)

We applied stating that she intends to stay for 6 months, while "In this case, the clearly expressed intention of the Respondent and his spouse was to visit the UK for two months. They proposed to undertake a simple, time limited family visit."

I wonder how this does affect our next application, shall we declare that she intends to join me for less than 3 months now?

[Directive/2004/38/EC]

You arrived in October, so you have been in the UK for less than 3 months. There is no requirement that you be doing anything specific in the first three months. (I misunderstood when you had arrived and mistakenly said you needed to provide proof that you were working, but this was corrected by Obie and vinny).

Only after 3 months you either need to either be working, or you need to be self sufficient.

Also, your wife can stay with you for as long or short as she wants. A weekend visit is fine, or the rest of your lives. You do not need to fill in an answer to that question, and even then it does not matter.

You can immediately reapply. Include a cover letter that explicitly points out that you have been resident in the UK for less than 3 months, and so do not need to provide any evidence that you are exercising your treaty rights. You can (I would say should) include information about which flight you arrived on (flight no, date, airport) and tell them they can verify it in their systems if they need to.

[MarcoGvantsa]

You arrived in October, so you have been in the UK for less than 3 months. There is no requirement that you be doing anything specific in the first three months. (I misunderstood when you had arrived and mistakenly said you needed to provide proof that you were working, but this was corrected by Obie and vinny).

Only after 3 months you either need to either be working, or you need to be self sufficient.

Also, your wife can stay with you for as long or short as she wants. A weekend visit is fine, or the rest of your lives. You do not need to fill in an answer to that question, and even then it does not matter.

Directive thank you very much for the answer, now the situation is much clearer and matches what Vinny and Obie said. As I understood I am in a middle situation, working with possibility of exercising my treaty rights but still in the first three month period.

You can immediately reapply. Include a cover letter that explicitly points out that you have been resident in the UK for less than 3 months, and so do not need to provide any evidence that you are exercising your treaty rights. You can (I would say should) include information about which flight you arrived on (flight no, date, airport) and tell them they can verify it in their systems if they need to.

I and my wife are going to re-apply, exercising my initial right of residence and including all the details of my flight (although I have lost the ticket, hope it will be enough). She will state that she wants to join me for one month (within three months countin from 14th of October). I will not provide anything about our financial status, my contract, my NINO etc, while we did it in the previous application.

I wrote a draft of letter, in the second part I point out all the article and directives. Here it is:

"Regarding your refusal letter of my wife [name]’s application for an EEA-Family Permit dated 01/12/2014, I have enclosed the following documents to prove your assessment was inaccurate:

• email with flight number, date and airport of my arrival in the UK

I kindly assure you that all the documents indicated are genuine.

As proved by the enclosed documentation, I arrived in the UK on 14/10/2014, at the Stansted Airport of London, on the Ryanair flight n. XXXXX at 08:20 am. You can verify the reliability of this information through your systems, in the view of the fact that I scanned my electronic passport for going out of that airport. From that date onward, as EEA national, I am entitled to reside on the territory of the United Kingdom for a period up to three months without any conditions or any formalities other than the requirement to hold a valid passport, in accordance with the Article 6.1 of the Directive 2004/38/EC and the Regulation 13.(1) of the Immigration Regulation 2006. My wife has the same right being my direct family member who wants to join me in the UK for the next month (respectively Article 6.2 and 13.(2)). Consequently, in response to this:

“You have not provided any evidence that your spouse is currently residing in the UK in accordance with the EEA regulations as qualified person, or that he is exercising his treaty rights.”

I do not need to provide any evidence that neither I am a qualified person nor I am exercising my treaty rights, given that I have been resident in the UK for less than 3 months. May I also bring to your notice the contents of the government site:
European Economic Area (EEA) family permits (Site location: https://www.gov.uk/government/uploads/s ... 7_0EXT.pdf )

“However, if the EEA national is yet to arrive in the UK, or is residing in the UK within the initial three month period of residence, there is no requirement for the EEA national to provide evidence they will, in future, exercise free movement rights.”

I am clearly covered by the sentence above, seeing as my date of arrival in the UK is 14/10/2014.

Therefore, as EU-National exercising my initial right of residence in the UK in accordance with the Regulation 13 of the Immigration Regulation 2006 and Article 6 of the Directive 2004/38/EC, I hereby request you issue a Family Permit to my wife [name] on an accelerated basis to obtain proper entry clearance to the United Kingdom and to join me as soon as possible.

You can contact me directly at (+44) 75xxxxx should you have further queries. I also welcome electronic communications at xxxxxx@outlook.com.

Kindly yours,
Marco xxxx
(+44) 75xxxxx
xxxxx@outlook.com"

What do you think? Too strict?

[Directive/2004/38/EC]

I personally tend to like even stricter, but what you have written is clear and should be fine.

I would list, explicitly, the documentation or evidence that you are including with the application
1. Italian passport for Jose
2. Canadian passport for Maria
3. Mariage certificate
4. Flight infomation for initial entry of Jose into UK
5. This cover letter
6. etc

Did you enter the UK using your passport, or your national ID card?

[MarcoGvantsa]

I personally tend to like even stricter, but what you have written is clear and should be fine.

I would list, explicitly, the documentation or evidence that you are including with the application
1. Italian passport for Jose
2. Canadian passport for Maria
3. Mariage certificate
4. Flight infomation for initial entry of Jose into UK
5. This cover letter
6. etc

Thank you again Directive, I will modify the letter and add it.

Did you enter the UK using your passport, or your national ID card?

I used my electronic passport at the automatic gate. I passed it on the reader, there should be trace that I have come to the UK. I asked to check it, I hope they will do it.

Anyway tomorrow my wife has the appointment with the visa centre, I will keep in touch for updates. Thanks a lot to everyone again for your support!

[MarcoGvantsa]

Hello. I wanted to let you know that we finally got the EEA Family Permit on the second try! We followed the route advised by most of the users and represented documents strictly in accordance to the Regulation 2006. As me and my wife enjoyed initial right of residence for 3 months (and exempt from formalities and any other condition) we just represented :
1. Cover letter by EEA National
2.Passport Copy and ID of EEA National
3. Evidences of relationship (pictures, skype history, letters, e-mails)
4. Marriage certificate and Multilingual certificate(issued by by my country of Nationality as we got married in Georgia)
5. Document showing my arrival in London (Air ticket booking)
In cover letter I referred to articles 13.2 of the Regulation 2006 and article 6.2 of the Directive 2004/38.
We got EEA family Permit in 9 working days.
They kept our marriage certificate which was translated in English with Apostle. Could they keep original Document? How can we claim it back?

Thank you again so much