Residence card refusal EEA FM (overstayer)

[khanb1]

Hi there,

This is my first post on this forum, so please bear with me

My question is regarding my application, through form EEA FM, which has been refused. To summarise, my situation is as below;

I initially entered the UK in 2007 on a visitor VISA and am an over-stayer. I have been Islamically married to an Italian National exercising treaty rights here in the UK for around a 15 months, and we have a child together, who is now 7 months old. We have been living together during this period

Unfortunately, due to my lack of legal status, and therefore absence of any documentation etc., we were not able to marry through the registry office (not to mention the risk of being picked up). I applied in May 2016 using form EEA FM, and have just a couple of days ago received a notice of refusal. The reasons given for the refusal are as below;

- My application cannot be considered under married partners as we are not legally married and an Islamic marriage is not sufficient for the purposes of the law;

- My application has therefore been considered under the 'unmarried partners' category, and rejected, due to the absence of evidence showing us having lived together for 2 years.

In my application, I provided my Islamic marriage certificate (signed by minister of religion), council tax bills, rent, bank statements, evidence of my wife's employment, etc, etc but was not able to provide any documentation for myself, except for my out of date passport (which has not been sent back to me).

I am worried and unsure about what to do now. I have been given right to appeal, but have been advised by a solicitor over the telephone that my appeal is unlikely to succeed as I will not have evidence of myself and partner having lived together for 2 years, and this is the ground upon which refusal has been made.

I would be extremely grateful if the ladies and gentlemen on here, with your knowledge of past cases, advise on how I can take this matter forward to try and legalise my status here.

Any help would be greatly appreciated. I am extremely worried and anxious.

[noajthan]

You clearly understand the difficulties you face here and tried to dodge them.
Clearly that approach was flawed and has failed despite presence of a child which might lessen the requirement of living 2 years together.
You would still need to show a durable relationship to be able to make a strong case and it appears you don't have the documentary evidence to back your case. You clearly cannot address that now if you are undocumented and/or living under the radar.

Are you sure you have an appeal right? my understanding is that has recently been removed for EFMs.

Suggest most straightforward is return to your home country or wife's country. Marry there.
Try again.

[ohara]

Beaten to it by noajthan

You are not married in the eyes of UK law and to apply for EEA EFM as unmarried partners you should show evidence of at least 2 years of a relationship akin to marriage.

You also probably won't be able to marry in the UK, due to your questionable immigration status. Your best bet as said above is to return to your home country (or go to your wife's country), marry, then return to the UK, legally, as an EEA direct family member.

[khanb1]

You clearly understand the difficulties you face here and tried to dodge them.
Clearly that approach was flawed and has failed despite presence of a child which might lessen the requirement of living 2 years together.
You would still need to show a durable relationship to be able to make a strong case and it appears you don't have the documentary evidence to back your case. You clearly cannot address that now if you are undocumented and/or living under the radar.

Are you sure you have an appeal right? my understanding is that has recently been removed for EFMs.

Suggest most straightforward is return to your home country or wife's country. Marry there.
Try again.

Hello, thank you for your reply, and to the poster below.

How would I go about returning to my home country, as I do not have a passport (the out of date passport has been retained by HO) and would there be any requirements (income, etc.) for my partner to show when I do reapply after we have married abroad?

Thanks.

[khanb1]

I have double checked and I definitely have been given the right to appeal.

[noajthan]

Hello, thank you for your reply, and to the poster below.

How would I go about returning to my home country, as I do not have a passport (the out of date passport has been retained by HO) and would there be any requirements (income, etc.) for my partner to show when I do reapply after we have married abroad?

Thanks.

I suppose you will have to bite the bullet and contact HO for passport and to advise of your travel plans.

There is no financial requirement on EU migration route.

[salmuzeey]

do we need a court marriage cert or would our Islamic cert do?

Thank you for your time

If your marriage is legally recognised in the country it was performed in, the UK will recognise it too. No need to apply for anything extra once you get here. You will need to get your marriage certificate translated to English though.

Yes it is legally recognised thank you much appreciated

[ohara]

Let the Home Office know you intend to leave, if you give them your date and place of departure they will normally arrange for your passport to available from the port when you leave.

[noajthan]

I have double checked and I definitely have been given the right to appeal.

A child may mitigate 2 year requirement. But expect a bumpy ride.
Marriage could simplify everything.

[Obie]

I think it is wrong for the Home Office to demand that you show you have been living together for 2 years.

That is not the law, you have a child together, you have undertaken an Islamic relationship, that is sufficient to establish a durable relationship.

21. Although Mr Subramanian did not raise the point, it is accepted by the Tribunal in reported decisions that despite the reference in UKBA European Casework Instructions to proof of a durable relationship requiring evidence that the relationship has lasted two years, the concept of a durable relationship is a term of EU law and as such it does not impose a fixed time period: see YB. Having said that, on the judge’s findings the relationship had only been shown to exist, if at all, very recently and on the appellant’s own evidence his partner was economically self sufficient. Mr Subramanian sensibly did not seek to argue that the appellant was entitled to succeed in showing that the relationship was durable if only a very recent relationship could be established. For the avoidance of doubt I would add that on the basis of the evidence before the FTT judge a durable relationship had not been established.

[khanb1]

I have double checked and I definitely have been given the right to appeal.

A child may mitigate 2 year requirement. But expect a bumpy ride.
Marriage could simplify everything.

Are you referring to a possible appeal?

What do you think about the chances? Thanks. Shocked to find out that the fee for appeals has increased to £800 as of last month!

[khanb1]

I think it is wrong for the Home Office to demand that you show you have been living together for 2 years.

That is not the law, you have a child together, you have undertaken an Islamic relationship, that is sufficient to establish a durable relationship.

21. Although Mr Subramanian did not raise the point, it is accepted by the Tribunal in reported decisions that despite the reference in UKBA European Casework Instructions to proof of a durable relationship requiring evidence that the relationship has lasted two years, the concept of a durable relationship is a term of EU law and as such it does not impose a fixed time period: see YB. Having said that, on the judge’s findings the relationship had only been shown to exist, if at all, very recently and on the appellant’s own evidence his partner was economically self sufficient. Mr Subramanian sensibly did not seek to argue that the appellant was entitled to succeed in showing that the relationship was durable if only a very recent relationship could be established. For the avoidance of doubt I would add that on the basis of the evidence before the FTT judge a durable relationship had not been established.

Unfortunately, the Home Office/UKBA do not appear to be seeing it this way.

[Obie]

My concern is what the law says and not what the UKVI says.

[khanb1]

They have mentioned in the refusal letter that they do consider applications where the 2 year criterion has not been met, but it appears that unfortunately they have not seen the evidence I have presented as sufficient.

What do you guys think about my chances in an appeal, if I hire an experienced lawyer?

Thanks once again.

[Obie]

They have mentioned in the refusal letter that they do consider applications where the 2 year criterion has not been met, but it appears that unfortunately they have not seen the evidence I have presented as sufficient.

What do you guys think about my chances in an appeal, if I hire an experienced lawyer?

Thanks once again.

What they said on the letter is clear wrong and that is not what their policy even says.

There is absolutely no doubt in my mind that on the face of what your told me, that their decision is wrong, and not in accordance with the law or their policy.

[khanb1]

I may have not made this clear, but they have said that there are exceptions where the 2 year requirement has not been met, but they do still consider it a durable relationship, but due to my undocumented status (not their words) they have decided that the exception does not apply in this case.

[noajthan]

I may have not made this clear, but they have said that there are exceptions where the 2 year requirement has not been met, but they do still consider it a durable relationship, but due to my undocumented status (not their words) they have decided that the exception does not apply in this case.

Yes, and as intimated above you are on a sticky wicket as you cannot go back in time and generate required evidence/papertrail.

Hence, as suggested above, get fully, properly married (if it happens that you are not) and come back as a spouse.
No guarantees though.

[Obie]

Their own guidance on your case is very clear, without the need for me to go too much into the law. If they fail to apply it then the solution is to threaten then with legal action, which in my opinion has realistic rather than fanciful prospect of success.

You must always consider the individual circumstances of the application and consider
whether it is appropriate to use discretion. For example there may be instances when the
two year rule is not satisfied but the couple have a child together. In these circumstances
you can use your discretion if there is enough evidence. For example, a birth certificate
showing shared parentage has been provided with evidence of living together.

That is their guidance, without the need for me to enter into law, and the fact that DURABLE PARTNER is a community law term and cannot be defined by national law standards.

Therefore their views are wrong, write and inform that that you will not be pursing an appeal in light of Sala, but rather a Judicial review, and that you are highly likely to succeed.