EEA (FM) residency card refused for dubious reasons

[frustratedbrit]

I am a British citizen and have applied for EEA (FM) residency cards for my non-EU wife and stepson under the Surinder Singh route. Obviously I sent their passports, but didn't supply mine because I needed it routinely to travel for my work. They have EEA Family Permits in their passports, but these permits have now expired. Today, 5 1/2 months after having made the application, I received a rejection letter, saying that it was because I hadn't supplied my passport. I supplied a photocopy and the covering letter explained that I needed my passport to travel frequently for my work, but the refusal letter did not touch on this. I was under the impression that it was possible not to supply my passport if I had good reason not to. The refusal letter says that we have no right of appeal, because appeal is only granted if my passport is supplied.

The refusal letter also states that:
"If you consider you have a right to reside in the UK as a matter of European law, and are in a position to submit the necessary information to support your application for a residence card as recognition of that right, you may wish to submit a further application"

The next paragraph, worryingly, states:
"As you appear to have no alternative basis of stay in the UK you should now make arrangements to leave. If you fail to do so voluntarily your departure may be enforced. In that event we would first contact you again and you would have a separate opportunity to make representations against the proposed removal."

Obviously this is very frustrating to find our long wait resulted in failure, and very traumatic to hear we have to get out of the country, especially since we now have a new born daughter and have recently bought a house. All I needed to do was supply my passport. If only at one point in the last 5 1/2 months they had told me they needed it, I could have found an opportune moment to send it off.

My questions are:

1) Is it possible to make a successful application without sending my passport? If so, how? I still need it for my work (although probably only about once every 2 months now).

2) I apparently have no right of appeal (is this right?), but is there any way of challenging the judgement (e.g. using lawyers)? What, roughly, is the cost of this, how long would it typically take, and would we get our legal fees back if we succeed?

3) What is this paragraph doing there about making arrangements to leave? I thought that, having established their rights with their EEA Family Permits, which were in the passports they saw, there was no question my wife and stepson have legal right to stay as long as they want, so long as they are living with me (which they are). This is true even if the Family Permits have expired, and regardless of success or otherwise of residence card applications. Am I wrong about this? If we do have to leave, how long would they take before asking us to leave?

4) Is there a possibility that there were other things lacking from our application? Obviously if we reapply, we don't want to get another refusal. Would the Home Office normally list everything that was lacking in the refusal letter, in the case that something as fundamental as my passport being missing, or would they just stop at that?

5) If a Brexit result happens next week, is there any possibility that we may no longer be able to apply for EEA (FM) residence cards? If we choose to re-apply, is it important that we do it before the referendum?

6) Does this refusal mean that our timetable for getting permanent residence cards is also delayed, or (assuming a reapplication succeeds) does it make no difference to when we can apply for that?

Thanks.

[noajthan]

1) There is case law that may help you to reapply.

If you provided sight of your original passport for an earlier EU-related application then HO should use that fact as you had established your identity previously.

Will have to dig out the reference for you - or you can search.

Not sure if it applies to a prior FP application informing a RC application. Certainly worth exploring

2) Most unfortunate.
Probably 'correct' (as per HO guidance) in the circumstances as you didn't prove you were an EEA national.

However guidance is not the law.
See #1

3) The RC is merely confirmatory.

Your family has full rights through you.
And as a returning Brit you don't even have to exercise treaty rights. (Case law of Eind).

Ignore that boilerplate text (unnecessary and plain wrong scare tactics).

4) Possibly.
List details of bundle here (if you wish to share).

If (as) you failed at first stage of evaluation (proof of sponsor identity) the caseworker may have simply stopped looking there and then

6) No difference.
Date of re-entry into UK is key to jump-start your family members' PR clock; (not the date of issue of a mere confirmatory document).

I may have time later for your other questions later, just wanted to provide a little reassurance up front.

[noajthan]

See relevant HO guidance:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- ref page 12 on identity;
&
ref page 38+ on SS cases.

[frustratedbrit]

Thanks for the info and reassurance Noajthan, this really helps.

1) From the documents you supply, it looks like I'd normally have to supply my original passport, but I'd really appreciate it if you could find out whether them accepting my original passport for the various Family Permit applications would be sufficient. I just don't know what to do if I do need to supply it. I must travel abroad for my work, and I simply can't give up my passport for a period of even 6 weeks, let alone 6 months. I know that you can write to them to ask them to return your passport, but I'm worried about not getting it back in time to travel. If I did get it returned within a few weeks, would they then require me to send it back to them again after that?

3) Including the invalid boilerplate is either a mistake or intentional scare tactics. Either way, this is completely outrageous due to the undue distress it causes. I've heard it happens quite a lot.

4) Here is a complete list of what I sent with the application:

Evidence of Identity and Relationship
- my wife and stepson's passports and former passport
- photocopies of relevant pages from my passport
- my birth certificate <--- surely good enough to establish identity??
- my stepson's birth certificate (Vietnamese with authorised English translation)
- British Council's recognition of our first daugther's birth
- our marriage certificate (Vietnamese with authorised English translation)
- my wife and her former husband's divorce certificate (Vietnamese with authorised English translation)
- her former husband's permission for my stepson to live with us outside Vietnam (Vietnamese with authorised English translation)
- joint UK bank account letter
- joint UK council tax bills
- about 10 photos of our time together as a family

Evidence of Exercising Treaty Rights in Germany
- employment contract for my job in Germany (German/English)
- payslips from my employment for 6 months (German)
- letter summarising unemployment insurance benefit payments (German)

Evidence of Living Together in Germany and Centre-of-Life Test (all in German)
- temporary residence permits for my wife and stepson
- local authority registration forms for our residential address in Germany
- letter confirming school place at a German school for my stepson
- electricity bill
- cable tv bill
- tax identification letter
- social security registration letter
- health insurance letter for family
- health insurance cards for family
- child benefit letter
- rental contract
- bank statements

Presumably we don't need translations of these documents in German? We didn't when applying for Family Permits.

6) So presumably it can go back to the first re-entry for a contiguous block of years in which we have resided in the UK for at least 6 months, which would be the Family Permits before the most recent ones? And presumably it would not go back to our first Family Permits, because after that we went to live in Germany for a year (we previously had Family Permits from living in Holland), even though in that year we returned back to the UK for a month?

[noajthan]

1) The case law I was thinking of is Barnett [2012] UKUT 142 (IAC).

Its even mentioned in HO internal guidance so a caseworker could/should be aware of it.
It seems they would need to justify why sight of your passport was required (unless one of the exceptions applies).

If the EEA national’s passport or ID card is not presented with their application you cannot insist these are submitted unless there are good reasons for doing so.

Such reasons may include:

• no previous documentation issued (and so evidence of EEA nationality has not already been seen);
  information suggests the EEA national has acquired another nationality which may have implications for their EEA status;
  information suggests the EEA national is no longer in the UK;
  you have suspicions that fraud has been involved in the application;

This list is not exhaustive and there may be other reasons why you must request the EEA national passport or ID card.

This follows the Upper Tribunal case of Barnett and Others (EEA Regulations: rights and documentation) Jamaica [2012] UKUT 142 (IAC)

Ref https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- see page 32+

4) A birth certificate is a record of an event and not a proof of identity.

Otherwise the list seems comprehensive with no glaring ommissions.

6) The PR clock will have started when you re-entered UK for good after your SS sojourn in a member state.
As you don't need to exercise treaty rights all your family has to do is reside with you for 5 years in order to acquire PR.
(Not sure why you mention 6 months in connection with PR).

That is assuming no Brexit, that you remain married (so dependents remain as your direct family members) and there are no prolonged absences from UK (by anyone).

[frustratedbrit]

2) I see, so assuming no "other reasons" (on page 32 of Processes and Procedures) because there is nothing particularly suspicious or unusual about my application, the question is whether evidence of my nationality can be considered to have been "already seen". Surely this is something that can be appealed against, since it is the question itself, of whether or not my passport is needed, that is under dispute. How can I appeal something when I'm told I cannot appeal?

If I applied again, do you know whether there is a way of getting a photocopy confirmed? Perhaps I could physically turn up with my passport to some office somewhere and there would be an official who could issue a document that would confirm that the photocopy is a true copy of the original?

4) Thanks for the feedback, really helps. Can you confirm that documents in German don't need translation?

5) So in principle at least, in a post-Brexit scenario, PR applications made after some date soon after June 23rd could be thrown out for Surinder Singh cases?

6) The 6 months is what I thought was the interpretation of "prolonged absence". Maybe I'm getting confused with tax residency criteria here.

[noajthan]

2) I see, so assuming no "other reasons" (on page 32 of Processes and Procedures) because there is nothing particularly suspicious or unusual about my application, the question is whether evidence of my nationality can be considered to have been "already seen". Surely this is something that can be appealed against, since it is the question itself, of whether or not my passport is needed, that is under dispute. How can I appeal something when I'm told I cannot appeal?

If I applied again, do you know whether there is a way of getting a photocopy confirmed? Perhaps I could physically turn up with my passport to some office somewhere and there would be an official who could issue a document that would confirm that the photocopy is a true copy of the original?

4) Thanks for the feedback, really helps. Can you confirm that documents in German don't need translation?

5) So in principle at least, in a post-Brexit scenario, PR applications made after some date soon after June 23rd could be thrown out for Surinder Singh cases?

6) The 6 months is what I thought was the interpretation of "prolonged absence". Maybe I'm getting confused with tax residency criteria here.

No you can't turn up in person at HO HQ with your passport.
My understanding is certified copies are not accepted.
Convenience, personal preference etc etc are not seen as justifiable reasons for non-presentation of the original (but only as per guidance - not 'the law').

2) It may be that a SS-based application warrants seeing the passport as, by becoming a SS-er, you have transformed yourself into a proxy EEA national. Unless caseworker justifies the refusal in writing its hard to say.
Probably unlikely they would explain it further now (even if you wrote to ask).

Not sure how you appeal when, by not identifying yourself, you sacrifice appeal rights.
Maybe some expensive court action (PAP & JR??). Wait for other senior members' suggestions on that point.

There is also no timeline (or SLA) for appeals - could possibly take months or a year.

You may want to consider a fresh, rock-solid application.
As a Brit you should get your passport back on request.
And a little inconvenience and maybe one missed trip will probably cost less than any court action.

4) Ah, missed that.
Yes, as per guidance, any material documents not in English or Welsh will need translation or else will probably just be disregarded.

5) No idea about that.
I'm not really indulging in the speculation. Leave that to other members.

6) Yes, absence over 6 months usually breaks continuity of residence. Unless for an exceptional reason (pregnancy, placement or military service, etc or, who knows, all three) when a one-off 12 months is permitted.

I don't understand all your travels and haven't back-tracked through your IB history. Have you done SS twice?
If you have broken continuity of residence you may well have broken your SS status in UK.

Your family just needs 5 years continuous residence in UK (and no prolonged absences) after coming back from Europe where you (last) all did SS together.

[frustratedbrit]

We've actually had 4 applications for EEA Family Permits, all of which were successful. Our story is that my wife and stepson came to the UK for 5 months in 2011 under a spousal visitor visa, left the country but got refused further visitor visas. I got a job in the Netherlands where we lived for 5 months, and succeeded in getting a Family Permit at the end of 2013, returning to the UK for a few months (without applying for Residence Cards). But then I was offered a job in Germany in 2014, which I took but lost after 6 months. We stayed in Germany for a total of 12 months, and then returned by Family Permit in March 2015. We also applied two more times for Family Permits, once during 2014 from Germany, and once in late 2015 from Vietnam during a short visit. So we've been resident in the UK without gaps of more than 6 months since March 2015.

2) I can't imagine what that paragraph on page 26 could possibly be referring to if it is not referring to cases such as mine. But anyway, according to the Home Office refusal letter, a passport is required, and legally challenging this sounds like a mountain to climb in terms of cost, time and effort, so I might as well give up and apply again, as you suggest.

4) None of our Family Permit applications required translations of Dutch or German, even the one made in Vietnam. But looking now at page 36 of the Processes and Procedures document, it says all documents must be in English or have an official English translation (not sure what "official" means here). So to avoid further risk, I suppose we had better get these documents translated if we apply again. Do you by any chance know what makes a translation "official", how I could achieve this and at what cost? Would I really have to get pages and pages of bank statements and of my lengthy rental contract fully translated?

[noajthan]

We've actually had 4 applications for EEA Family Permits, all of which were successful. Our story is that my wife and stepson came to the UK for 5 months in 2011 under a spousal visitor visa, left the country but got refused further visitor visas. I got a job in the Netherlands where we lived for 5 months, and succeeded in getting a Family Permit at the end of 2013, returning to the UK for a few months (without applying for Residence Cards). But then I was offered a job in Germany in 2014, which I took but lost after 6 months. We stayed in Germany for a total of 12 months, and then returned by Family Permit in March 2015. We also applied two more times for Family Permits, once during 2014 from Germany, and once in late 2015 from Vietnam during a short visit. So we've been resident in the UK without gaps of more than 6 months since March 2015.

...

4) None of our Family Permit applications required translations of Dutch or German, even the one made in Vietnam. But looking now at page 36 of the Processes and Procedures document, it says all documents must be in English or have an official English translation (not sure what "official" means here). So to avoid further risk, I suppose we had better get these documents translated if we apply again. Do you by any chance know what makes a translation "official", how I could achieve this and at what cost? Would I really have to get pages and pages of bank statements and of my lengthy rental contract fully translated?

1) So the family PR clock started in Mar 2015 and subsequent short trip to Vietnam won't have impacted it (as less than 6 months).
Hopefully all good.

4) Only clue I know of on translations is in the associated PR guide:
https://www.gov.uk/government/uploads/s ... -04_KP.pdf
- page 1

As guidance mandates translations then every doc you wish to be considered would have to be.
As you are aware HO tends to play hard ball and doesn't take any prisoners.

[frustratedbrit]

"Hard ball" is quite a polite way of putting it. Thanks for all the advice.

[frustratedbrit]

Having entered the UK with EEA Family Permits under the Surinder Singh route, my wife and stepson will soon be applying for EEA(FM) residency cards to confirm their status in the UK. They have obtained EEA Family Permits on numerous occasions in the past, originally in December 2013 and most recently in December 2016. Supporting documents in Vietnamese, such as a birth certificate and a marriage certificate, were translated into English and stamps from the Vietnamese Ministry of Justice were obtained to certify the authenticity of these translations. Other supporting documents, about our time in Germany, were provided but not translated. On every occasion our EEA FP application was successful, whether the application was made from Germany, Holland or Vietnam. The Vietnamese documents and their translations were also successfully used to obtain UK visitor visas in the past.

However, according to EEA(PR) Guidance Notes Version 2.0 (December 2015), documents not in English or Welsh must be translated by a "qualified professional translator", and confirmation in writing must be provided that the translation is "true and accurate", of the date of the translation and the full name and contact details of the translator or translation company.

Obviously, these guidance notes are for EEA(PR) (i.e. permanent residence, having lived in the UK for 5 years), not EEA(FM) (i.e. temporary cards for the first 5 years), but I cannot find any similar guidance for EEA(FM). In any case, eventually, of course, we want to be getting EEA(PR) residency cards.

So my questions are:
1) Do the same conditions about foreign-language documents apply for EEA(FM) applications as for EEA(PR) applications?
2) Is it really true that documents and/or translations accepted for EEA Family Permit applications may not be accepted for EEA(FM) applications?
3) Are our translations of Vietnamese documents insufficient for EEA(FM)?
4) What, precisely, is meant by a "qualified professional translator"?
5) Do I really have to get all of my German evidence, including a 30-page rental contract, a dozen official letters, and various school letters, fully translated into English?
6) Roughly, what is the going rate for this kind of translation? And can anyone recommend a good translator, or how to go about finding a good translator, that fits whatever is meant by "qualified" and "professional"?

[noajthan]

Having entered the UK with EEA Family Permits under the Surinder Singh route, my wife and stepson will soon be applying for EEA(FM) residency cards to confirm their status in the UK.

...

So my questions are:
1) Do the same conditions about foreign-language documents apply for EEA(FM) applications as for EEA(PR) applications?
2) Is it really true that documents and/or translations accepted for EEA Family Permit applications may not be accepted for EEA(FM) applications?
3) Are our translations of Vietnamese documents insufficient for EEA(FM)?
4) What, precisely, is meant by a "qualified professional translator"?
5) Do I really have to get all of my German evidence, including a 30-page rental contract, a dozen official letters, and various school letters, fully translated into English?
6) Roughly, what is the going rate for this kind of translation? And can anyone recommend a good translator, or how to go about finding a good translator, that fits whatever is meant by "qualified" and "professional"?

1) Yes.
See guidance:
https://www.gov.uk/government/uploads/s ... -04_KP.pdf

2) Maybe.
It will cost you £65 (application fee) to find out.

See #1

3) Yes
See #1

4) See #1

5) Yes, all docs you need to submit as evidence.
Otherwise they are likely to be ignored.

6) No idea.
No recommendations here.

[noajthan]

Posts merged.

[frustratedbrit]

Your answer only really answers Q1. The documents for EEA(FM) and EEA(PR) are the same in this respect (which is useful to know). But that means they are equally unclear. I am asking what is meant by "qualified professional translator", and just referring back to the same document that I was reading in all your answers doesn't really help. Or are you trying to make the point that it is all completely obvious?

If anyone has any guidance/experiences in this regard I would be most grateful. Are there people out there who paid to get lengthy rental contracts translated? How much did it cost? I know German people who are qualified teachers in both languages, and who have translated documents for people in the past. They can do a very good job at translation, but will the Home Office reject this? Are they "qualified professional translators" or not? Any experiences anyone?

[noajthan]

Your answer only really answers Q1. The documents for EEA(FM) and EEA(PR) are the same in this respect (which is useful to know). But that means they are equally unclear. I am asking what is meant by "qualified professional translator", and just referring back to the same document that I was reading in all your answers doesn't really help. Or are you trying to make the point that it is all completely obvious?

If anyone has any guidance/experiences in this regard I would be most grateful. Are there people out there who paid to get lengthy rental contracts translated? How much did it cost? I know German people who are qualified teachers in both languages, and who have translated documents for people in the past. They can do a very good job at translation, but will the Home Office reject this? Are they "qualified professional translators" or not? Any experiences anyone?

For FM application use FM guidance.

The guidance is fairly obvious.
Find a translation company (google). Use them.

Use some commonsense with a rental contract. Translate key pages, not the rest of the tedious legal jargon that proves nothing.

[frustratedbrit]

Ok, thanks.

[frustratedbrit]

Follow up question about this German translation:
So it is not necessary to every last little detail translated, e.g. every page of a lengthy rental contract. What about 10 pages of salary slips? It is obvious from these that they are going from the company for which I have the work contract to my German bank account, and are just tables of numbers plus a few technical tax words (tax class, tax identification number, tax month, tax year, etc). Do these really need to be translated?

[frustratedbrit]

I'm just thinking, if we lose our Surinder Singh rights as part of Brexit, would we have to leave the country to apply for a spousal visa?

[frustratedbrit]

So my question is: what are the current rules for applying for a spousal visa if currently in the UK through Surinder Singh? Do we have to leave the country to make the application?

[MrSlyFox]

So my question is: what are the current rules for applying for a spousal visa if currently in the UK through Surinder Singh? Do we have to leave the country to make the application?

Apply to remain in the UK with family
You can apply to extend or switch in any of these routes if you’re eligible, except if you have permission to be in the UK:

as a visitor
for less than 6 months - unless you got your visa to get married or become civil partners or you got your visa to wait for the outcome of a family court or divorce

Well, you are neither of those so that looks okay.

Your application might be refused if, for example, you’ve:

got a criminal record in the UK or in another country
provided false or incomplete information to the Home Office
broken UK immigration law
Read the full guidance on refusals.

https://www.gov.uk/remain-in-uk-family/eligibility

[Wise]

Why don't you just re apply and with your passport and after 4/8 weeks i think you may receive the COA and the next day fill a form on line to return your passport to you for urgent reason, again it is your responsibility to plain your homework with your work and travel schedule the HO never care about anyone, it will take at least 10 working days to return and they will not/never request for it again as they will have seen it and scan it their system. Am not surprise even they will do the same if you apply through a lawyer.

I have never think any reason one will use for not providing your ID than may be an embassy refused to issued passport and apply through a local authority to the HO and treat your case as stateless person, but in your own case is far more different.

The other UK route you're planing is rough, costly and might even be longer to process because of the back log.

Good luck.

[frustratedbrit]

MrSlyFox,

It's not at all clear to me that the paragraphs you quote apply to our case. There are these 2-year, 5-year and 10-year routes, explained in large technical documents. What route would we be taking?

[MrSlyFox]

MrSlyFox,

It's not at all clear to me that the paragraphs you quote apply to our case. There are these 2-year, 5-year and 10-year routes, explained in large technical documents. What route would we be taking?

The Five year route
Here the the guidence which also is very clearly linked on the page - https://www.gov.uk/government/publicati ... te]Partner (5-year route)

You must meet the eligibility requirements for the partner routes. If you’re 18 or over you must prove that you have a good knowledge of English.

You must also meet the financial requirement of:

£18,600 per year if you’re applying only for yourself
£22,400 per year for you and one child
£2,400 per year for each additional child[/quote]

Five-year route is the one for you, It is quite clear.

Partner (2-year route)
You can only extend your ‘family of a settled person visa’ in this route if you:

applied as a partner before 9 July 2012
are not eligible to settle
have kept to the terms of your visa

It clear the two-year route doesn't apply, as you haven't applied prior to 9th of July 2012

Family life as a partner (10-year route)
You must meet the eligibility requirements for the partner routes and you must also be in one of these situations:

there are serious reasons you and your partner can’t live together as a couple in another country

you have a child in the UK who is a British citizen or has lived in the UK for 7 years and it wouldn’t be in their best interests to leave the UK with you

Do you meet these requirments?

[frustratedbrit]

So we would stay in the UK and submit our application for the 5-year route, which would in the end involve a total of 3 applications over the 5 years, in order to attain permanent residency?

[frustratedbrit]

what I meant to say was "stay in the UK *whilst* we submit our application.."