EEA1 refusal for Indian husband, slovakian wife..please help

[katka1311]

Hi, we just get our appl for eea1 refused. I need all of your help, because I think it was refused unrightfully. i am slovakian, marrriad to an Indian citizen, we have a 2 year old daughter. all of us came here to India, my husbands birthplace from usa, so we can apply for his eea1and go together to uk. we were living in us for 2 years, but were also not lucky with the paperwork, that is why we decided to try to go to uk..so here we are, none of us working at the present, but have sufficient savings on our accounts. the ECO refused my husbands application because of the following reason:
" In order to reach a decision, I have aken into account:
The burden of proof is on you, the applicant
the standard of proof is to a balance of probabilities
your completed application form
rate of exchang 1 pound to indian rupees 75- we showed 12 000usd on his account, and 45000 on my name? was this a mistake? at the time of the application we were buying a property here in india, it is still not done yet, but the money kept aside for this we did not show on the application...otherwise his account woudl have a lot more money...is this a mistake?
your passport and the original doc that you provided.
And please read...
The ECO reasons and supporting evidence:
You, your Slovakian wife and your daughter propose to settle in the uk permanently. Althought you have funds in India, you must show that yur EEA natioanl is economically active in UK. You have not evidenced this, therefore I must refuse your application.
My question is: i do not think that that is correct that me, wife shoudl be already active in UK..if we have enough money to support ourselves, shouldn t he just grant the application?
and again...the appeal...on which qrounds should we appeal if he gave us the folllowing choices:
1. The decision breaches rights you have as an EEA national or member of such a person's family under Community Treaties relating to entry or to residence in the UK.
2. That the decision is otherwise not in accordance with the law.
3. that the decision is unlawful because it racially discriminates against you.
4. that the decision is unlawful because it is incompatible with your rights under the European Convention on Human rights.

please help.......any suggestion what and how to do.....shoudl we show the money we did not show before, shoudl we state that we were planning to buy a propert, tat is why there was some money sat aside and not shown....do I -wife- really have to go first alone, work, be economically sufficient and then apply again...
which place is better to appeal...at the consular section here in Bombay or send it to UK, to the Immigrational tribunal...
thank you very very much....for all your help..

[86ti]

Your post is slightly confusing. You say you have applied for 'EEA1' which is the form to apply for a residence card. You can only do that when in the UK (if you decide to be a worker in the UK you will first have to apply for the Worker Registration Scheme as you are a A8 national).

I guess what you were applying for is actually the EEA family permit. This is the entrance clearance you need to enter the UK. In principle, you do not have to show financial means for the first three months. For this period all what would be needed is a passport from all of you, the marriage and the birth certificates. Of course, I understand that the VAF5 form lures many people into giving away too much information.

[katka1311]

correct, my mistake this was an application for the EEA family permit...we have submitted all the document so what would you suggest now? we are really helpless at this moment..

[86ti]

In principle you can appeal but I guess it is better to just reapply as the application is free of charge anyway. Write a cover letter and make it clear that you are applying under EEA regulations (yes, I know it should be clear...) and make the ECO (entrance clearance officer) aware that you have to show only the aforementioned documents. [If you really want to settle down later in the UK you will have to show that you are a qualified person (this also includes job seekers) in your EEA1/2 applications (though both are optional).]

See this link for general information regarding EEA FPs, in particular EUN2.4. Here is the relevant law. Pay particular attention to Article 13. This is all based on Directive 2004/38/EC esp. Article 6.

[86ti]

You may find some more advice here, http://www.immigrationboards.com/viewto ... hlight=ecm

[Plum70]

Your post is slightly confusing. You say you have applied for 'EEA1' which is the form to apply for a residence card.

Just to make clear: EEA1 form = Registration Certificate application for EU/EEA/Swiss nationals.

[katka1311]

To make it clear....sorry, anyone of u knows how to correct the topic from EEA1 to EEA...
so...my new application should be theoretically based on the old one, with the same info / purpose of visit - we wrote live and work/, duration of stay-n/a, and just write a cover letter where I could point out the mistakes they made? Should I also state that the wife/eea national/ should be exercising treaty rights ONLY after 3 months...the first 3 monts are unconditional, and we have enough funds to support ourselves...tell them also to consider both our accounts, not only my husbands/ the eco wrote that the burden of proof is on him, on the applicant, / but the law clearly states that the FAMILY UNIT should be sufficient not to become a burden on the state...so how do I put all this things together in one covering letter...should we also mention that we get refused, that is why we are applying again....pleaaase..any advice on this

[86ti]

Since the first three months are unconditional it follows that you wouldn't have to state the purpose of your visit or the length nor would you have to show sufficient means. As far as I understand from your first post the EEA FP has been denied on grounds of insufficient means. Is that right?

Read the discussion in the link above again, in particular Obie's second post. You may want to address a letter to the Entry Clearance Manager explaining your rights and how the ECO has failed to recognize those.

[katka1311]

Hi..the eco refused he application with the following 2 sentneces:
Although you have funds in India, you must show that yur EEA national is economically active in the UK.Youu have not evidenced this, therefore i must refuse your application.
I do not need to exercisie treaty rights, only after 3 months...this is what I have to writ in the letter to the ECM? is that correct...
about our funds...
I guess they considered only my husbands account, instead of considering both our accounts, the law clearly says, the family unit should not become a burden on the state .

[Ben]

Hi..the eco refused he application with the following 2 sentneces:
Although you have funds in India, you must show that yur EEA national is economically active in the UK.Youu have not evidenced this, therefore i must refuse your application.
I do not need to exercisie treaty rights, only after 3 months...this is what I have to writ in the letter to the ECM? is that correct...
about our funds...
I guess they considered only my husbands account, instead of considering both our accounts, the law clearly says, the family unit should not become a burden on the state .

What EC law says is that a Slovak national has the right of residence in the UK for up to three months without any conditions or formalities other than the requirement to hold a valid passport or Slovak National ID card. The family members of the Slovak national, regardless of their own nationality, have the right to accompany the Slovak national during his period of residence.

Clearly, therefore, your rights and those of your family members have been infringed in this visa refusal.

[katka1311]

Since the first three months are unconditional it follows that you wouldn't have to state the purpose of your visit or the length nor would you have to show sufficient means. As far as I understand from your first post the EEA FP has been denied on grounds of insufficient means. Is that right?

Read the discussion in the link above again, in particular Obie's second post. You may want to address a letter to the Entry Clearance Manager explaining your rights and how the ECO has failed to recognize those.

I ve just read the link ou ve suggested...so do you think I should write an email/ or letter to the ECM just like you ve sugessted to the other couple?
You need to write to the Entry clearance Manager, and ask for him to reconsider the refusal on the grounds that Article 6 of Directive 2004/38 EC does not make the granting of right of Entry for family member subject to the fact that the EEA national should be exercising treaty rights in the UK, neither does Regulation 12(1aii) state that you have to be exercising treaty rights for the EEA family permit to be issued.

Also specify that one is not required to be a qualified person, before they could invoke the right of entry for their non-EEA family member, until they have lived in the Host member state for more than 3 months.

Make know to him that initial right of entry, which is what you are seeking, is not subject to any condition, except showing of evidence of relationship and evidence of your EEA nationality, for the first 3 months.

After that 3 months, you are then required to show evidence of treaty rights, which is right of extended residence.
this shold be enough? or should I mention our sufficient funds, and to consider it also together, not separate? the eco wrote us that the burden of the proof is on you, the applicant- so he meant, he did not consider my proofs?/ iam the wife eea, my bank account etc?/
can you give me some highlights what else to include in the letter..thank you so so much.


_________________

[86ti]

Hi..the eco refused he application with the following 2 sentneces:
Although you have funds in India, you must show that yur EEA national is economically active in the UK.Youu have not evidenced this, therefore i must refuse your application.
I do not need to exercisie treaty rights, only after 3 months...this is what I have to writ in the letter to the ECM? is that correct...

You, the EEA national, do not have to be economically active before entering the UK (the EEA FP would be also the right entry clearance to apply for if you only wanted to come to the UK for a short term visit, say for touristic purposes...). The ECO was simply wrong. It is correct that you do not have to be a qualified person (job seeker, worker, self-employed, self-sufficient, retiree, student). It is your right to enter the UK with your passports, marriage and birth certificates alone. Formally your husband is also required to have an EEA FP (and even if he wouldn't and you would make it to the border they couldn't just deny you entry, see Article 5(4) of the DIrective).

about our funds... guess they considered only my husbands account, instead of considering both our accounts, the law clearly says, the family unit should not become a burden on the state .

Personally, I believe that you don't have to show funds as per Article 6 of the Directive... If you really want to include that information it would be again you, the EEA national, to show the funds. Make it also clear in the letter that you will be travelling together to the UK (the only other option for your husband would be to join you later).

[86ti]

What you have quoted above is actually not mine but Obie's. It may be a good idea to follow this strategy. My impression is that the ECO simply doesn't understand the EEA regulations. There cannot be a burden of proof on the applicant because 1) no need to show funds and 2) it is eventually the EEA national who has to show how he/she exercises treaty rights (when in the UK, i.e. that's then between you and the British Home Office and not some ECO in India).

[86ti]

Oh, BTW what is the nationality of your daughter? If she is a Slovakian national then you would not need the birth certificate for the application obviously.

[katka1311]

Hi 86ti...
thanks for being here, and helping me with this..
my daughter has a dual nationality: an us nationality/she was born there and she has her us passport also/, but also a slovakian national, and she has a Slovakian passport also.
I will construct this letter to thee ECM today, but I would like to ask you to review it before sending it...could you do this favor for me please..I will type it here, later today.
After being done with the letter shoudl I email it/which address?/, or send everything by post to the British High Commision in Bombay along with the refusal?
They returned all our original and copies of supporting documents, so if I just send a letter to the ECM how wil he be able to see the supp doc? maybe it is a stupid quest, but still...
Do I have to quote in my letter what the ECO wrote on the refusal?
what would you do?

[katka1311]

oh, yeah..and sorry that was Obi's quote....

[katka1311]

Also specify that one is not required to be a qualified person, before they could invoke the right of entry for their non-EEA family member, until they have lived in the Host member state for more than 3 months.




_________________[/quote]
as per which regulation.., please provide the number...

[katka1311]

Well....maybe we really made a mistake...
I ve read the eco's conclusion on the refusal, and it says one important thing, which I did not pay attention to until now...
You, and your Slovakian wife and your daughter propose to settle in the UK permanently. Although you have funds.........rest is provided above....
so because we said in our applic we want to live and work there, and our length of stay was not applicable, they considered that we are applying for a settlement visa??????????? so if this is the case, still I could write in my letter the I am applying for an initial right of entry????
Or do I really just make a new application and make it look,that the purpose is toursm, and lenght of stay short therm????
AM I getting too confused,or I can proceed as we listed above???

[Ben]

Look, the purpose of entry, for your non-EEA husband, shall be as the family member of an EEA national.

It is that simple.

[Wanderer]

Look, the purpose of entry, for your non-EEA husband, shall be as the family member of an EEA national.

It is that simple.

Having a head meets wall moment, Ben?

[Ben]

Slightly.

In fairness to the OP, I think there is a bit on confusion on both parts.

The OP may have volunteered too much and irrelevant information on the application form, and/or when the ECO decided the application (wrongly) and gave his (wrong) reasons, the OP may now feel the need to supply more irrelevant information.

The visa applicant should make explicitly clear that he is applying for an EEA Family Permit for the purpose of entry to the UK in the company of the EEA national of whom he is a family member. Evidence should be provided of his relationship with the EEA national, together with a note, perhaps, reminding the ECO of the right of the applicant and of the EEA national to enter the UK and reside there for up to three months without any conditions or formalities other than the requirement to hold a valid passport (or National ID card, in the case of the EEA national).

No further information should be provided.

[katka1311]

hi Benifa...it really sounds very simple, and I do believe, that we maybe provided uneceserry info, but we tried to answer the questions on the form..so what do you suggest...
letter to ECM first to review the decision or new application /I have no idea how to modify it, or change the info on it/
thanks for your insights..

[86ti]

I personally think that the ECM should be made aware of the situation but you may just as well make a new application with a strong cover letter. You can just do both at the same time.

[Ben]

I personally think that the ECM should be made aware of the situation but you may just as well make a new application with a strong cover letter. You can just do both at the same time.

I agree. katka1311, it's ok to leave blank sections on the VAF5 which are irrelevant.

[86ti]

I personally think that the ECM should be made aware of the situation but you may just as well make a new application with a strong cover letter. You can just do both at the same time.

I agree. katka1311, it's ok to leave blank sections on the VAF5 which are irrelevant.

Which in practice means most sections... (And, I just see they still use the term 'sponsor' in the form...)