Help needed with appealing against EEA FP refusal

[Susi]

Here is short background:
I am Finnish citizen, met my Korean wife in Australia 2008 and got married in Las Vegas in last November.
I used to live in UK 2007-2008 and we wish to settle down there because our Australian visas have expired and English is our common language.
We are currently in Finland, my wife here on tourist visa so which expires in beginning of March.

We applied for EEA family permit which was refused with this wording:

"You stated on the application form that you wish to relocate to the UK. However you failed to provide any evidence that your EEA national family member WILL BE a qualified person in UK. In view of lack of evidence, I am not satisfied that you qualify for an EEA permit."

If I have understood right in view of initial right of residence we don't need to prove what our conditions will be in the future.

We appealed against this and sent the appeal to Stockholm embassy where the decision was made.

It has been 5 weeks now and we haven't heard anything, not even confirmation that our appeal has been received.

UK embassy in Stockholm doesn't help at all. They told first time we called there that the decision will be made in 5-6 working days. After pointing out its been 4 weeks they told it may take longer and they cannot check the status of appeal.

Same thing happened on next call, they told they cannot give any information and just have to wait until decision is ready.

Can anyone who has experience tell how long they appeals usually take? And how we could get information about progress of the appeal, as it could also be possible that post has lost the letter, it wouldn't be first time for me.

Might be that I have to go to UK alone first and get myself settled while my wife waits in Korea, but we don't want to do that yet as we haven't give up hope yet that we will get answer in mail.

We also don't want to apply Family Permit again in case that process takes longer than 4 weeks my wife can stay in Schengen area.

Any help appreciated. Thank you.

[86ti]

You understand your situation quite right. Unfortunately some ECO's still seem to believe that they can check whether the EEA national is a qualified person or not. Have you declared anything regarding how long you intend to stay?

By appeal, you mean that you have appealed to the ECM to overturn the decision? It's hard to tell how long that would take as it will depend on many factors.

[Susi]

We told that we wish to settle down in UK, and said something about one year first.
Of course we would have to apply later residence permit and then we could provide evidence about being qualified.

Yes, we appealed them to overturn the decision pointing this out:

"Please note: because of the initial right of residence, the ECO cannot refuse someone on the basis that that their EEA national family member will not be a qualified person in the UK on arrival. However, if the ECO is satisfied that the EEA national has been in the UK for longer than three months, the ECO must be satisfied that the EEA national is a qualified person."

I understood visa section in embassy first checks the appeal and then decide whether they can overturn it or send the case in First Tier Tribunal in UK, in that case it would take long time and we just have to give up being together for a while.

But now we can't get any information if they have referred our case to England or not.

[86ti]

There is a possible plan B. You say your spouse is from Korea. Is that South Korea? As far as I know citizens from that country are non-visa nationals with respect to the UK which would mean that she should be able to board the plane to the UK without a problem. You may know from Article 5(4) of Directive 2004/38/EC that your spouse cannot be just turned back as long as the marriage can be proven. The UK border force have this in their operations manual (used to be available online but under revision at the moment). In practice, however, you may have to argue your case and there is no guarantee of a hassle-free journey.

I think the embassy should very well be able to overturn their own decision as the legal situation is clear and they made a mistake.

[Susi]

forgot to mention, of course from South-Korea.

I was also thinking something like that for plan B.
I don't think there would be any problem for her to get into country if she shows ticket out of UK.

However, she couldn't start working until we would have got confirmation for application for residency permit.
And that also may turn tricky as in general family permit should be applied if person intends to stay for a long-term.

Thank you for your help.
I still need to figure out how I can get embassy in Stockholm to check the situation, phonecalls are like talking to the wall and I cannot find email address.

[Greenie]

try info@britishembassy.se

[86ti]

She doesn't need return tickets. She can work right away though the hard part may be to convince a prospective employer.

[koded]

I think you are going through the long process since your spouse is no visa required national. Plan B that 86ti suggested is the best option to my thinking. And I guess they might refuse the family permit because they know she can visit UK with you without visa for a period of 90days and at that time you should be able to find job.
I know someone they refused family permit and the person has been waiting for the past 5 months for the appeal.
Anyway, it is upto you to decide what option to choose.
Good luck!

[Susi]

damn, complicated!

Has anyone really done plan B route? And it doesn't affect in residence card application if person comes to country without family permit?
I'm aware by EU legislation it shouldn't matter but the whole family permit isn't required in the first place according to EU laws.

Also last time when we passed UK immigration on way to Finland my wife got stamp in her pass port which said: leave to enter for 6 months. Employment and recourse to public funds prohibited.

That stamp will make it even harder to convince a prospective employer.

Also, does spouses right to work in UK come from EEA-nationals right to work or from that the EEA-national is exercising treaty rights?
If I remember correct its from the latter one, in which case I need to find job before her.

[86ti]

Has anyone really done plan B route? And it doesn't affect in residence card application if person comes to country without family permit?

Yes, some people did that but search the forum for details. No, it cannot affect the RC application.

I'm aware by EU legislation it shouldn't matter but the whole family permit isn't required in the first place according to EU laws.

Entrance clearances/visas are explicitly allowed by the Directive, see Article 5(2).

Also last time when we passed UK immigration on way to Finland my wife got stamp in her pass port which said: leave to enter for 6 months. Employment and recourse to public funds prohibited.

That stamp will make it even harder to convince a prospective employer.

If you really need to go through the tribunal now you probably have to wait months. You could try to enter without the EEA FP and she could just try to get work as soon as she receives the Certificate of Application (CoA) after receipt of the RC application by the UKBA. The latter could be even faster.

Also, does spouses right to work in UK come from EEA-nationals right to work or from that the EEA-national is exercising treaty rights?
If I remember correct its from the latter one, in which case I need to find job before her.

It's the latter one but an EEA national can also be self-sufficient on the basis of the non-EEA spouse working. In that case though you would need separate comprehensive sickness insurance (another "interesting" interpretation from the UKBA). But that might be a chicken-and-egg problem in your case.

[Susi]

This much we have progress and new information now = nothing.

Embassy in Stockholm consider themselves too good to talk with us and say I need to talk with Worldbridge. Even though they admitted that Worldbridge doesn't deal with appeal.
No reference number or anything given for the appeal.

Worldbridge said our appeal is going to be made in AIT.
Same thing, no reference number, nothing.

Called AIT and they haven't received the appeal.

I'm thinking if we go England together without Family permit would that cause any problem?

For example is there a law which prohibits waiting AIT decision in UK?
I remember reading something like that but don't remember exact wording.

One alternative would be to apply residence permit to Finland for my wife so that we could wait here to results. Which is not that good option cos it cost lot of money and could take up to 6 months to get.
And would this interfere with the appeal in AIT if we try to apply residence permit to another country meanwhile we have a process there?

This EEA family permit business has turned complete farce. When I read the conditions before applying I thought it is piece of cake, how wrong I was.

[86ti]

I am not aware that there is a law which says where you have to wait for the decision. But if you are both in the UK the appeal is actually quite pointless although the Swedish embassy needs a good slap on the wrist from a judge. Whether you apply for residency in another country or not is of no business to the UK.

Have you considered complaining to SOLVIT? Note, that they have no actual power and the SOLVIT of some countries were reported here to be pretty useless but you can give it a try. And don't hesitate to push them. It's there job after all. (If you feel that SOLVIT doesn't do the job you can also complain about them to the EU Ombudsman.) You can also complain directly to the EU Commission. Similarily, they might only tell you how right you are but at least they have to take note.

[Susi]

I got finally answer from Stockolm embassy, after trying to communicate with Worldbridge in vain they gave me working email address.

They told that ECM will have a look at the appeal in the coming weeks, so it has sat on the table more than 6 weeks without anyone even looking at it.

My wife has to leave Schengen area in bit over two weeks time, which is going to cost more money of course.

[86ti]

They told that ECM will have a look at the appeal in the coming weeks, so it has sat on the table more than 6 weeks without anyone even looking at it.

But this also means that the appeal is not with the tribunal. The ECM could still decide that full appeal is your only option...

[Susi]

Yes, they could decide after 2 months waiting to send the appeal to AIT which will take at least 4 months more, way to go.

[86ti]

I wonder if you couldn't sue the UKBA for compensation after the permit has been granted (and I have no doubt that it will) should you indeed need to spend additional money.

[Susi]

I would also like to see them in court and get compensation, but dont know how realistic the chances would be.

[86ti]

Maybe you should still try to contact SOLVIT Finland and try if they wouldn't help you pushing the ECM to a decision.

[Susi]

We got answer from Stockholm embassy yesterday, ECM overturned decision so its all good on that front. It just took some time.

Thank you 86ti and all the other people who gave support and advice.

[86ti]

Sanity has prevailed at last. Congratulations and all the best in the UK.

[Directive/2004/38/EC]

If in the future you ever need to enter the UK (or other European country) without a visa, you should read through No visa but still want to travel?

[siv123]

Dear Susi.
I congratulate both of you for EEA family permit.

I am an EEA citizen (Norwegian). My wife and child is non EU national. We have also applied for EEA family permit at the UK embassy in Stockholm.
Since we live in Norway, we have not provided embassy with any job contract in UK.

I just have some questions regarding EEA family permit and hope you can answer them.

How long time it took to process your initial application for EEA family permit? Did you also showed your bank statements or current employment in Finland?

After having read your experience with Stockholm embassy I am afraid
that Embassy will try to reject our application since I have not provided them with evidence of being qualified in UK. However, I have provided them with my bankstatements. I have not submitted any health insurance.

I will really appreciate If you or any other member on this forum can guide me.

Sanity has prevailed at last. Congratulations and all the best in the UK.

[Directive/2004/38/EC]

siv123,

If you are Norwegian and you are applying for a visa for your spouse to visit the UK along with you, then you do not need to provide any information or evidence of your present or past employment, nor about your financial resources.

Your application should never be rejected, unless you or your wife are a threat to the state.

Relax and tell us the good news when you get the EEA FP

[siv123]

Thank you for prompt reply. No, actually I am relocating to UK for work and we have mentioned in the application that my spouse will also work. But we have only applied for 6 months EEA family permit initially. This is also because I must be qualified after 3 months in UK. If I have understood it correctly, than EEA national don't need to provide any evidence for the first three months?

siv123,

If you are Norwegian and you are applying for a visa for your spouse to visit the UK along with you, then you do not need to provide any information or evidence of your present or past employment, nor about your financial resources.

Your application should never be rejected, unless you or your wife are a threat to the state.

Relax and tell us the good news when you get the EEA FP

[EUsmileWEallsmile]

EEA family permit will be fine for your purposes. Once in the UK, your wife and child can apply for a residence card.