Caught in an awkward position with Home Office and Visa

[ddolheguy]

Hi all,

I've had my share of problems with the Home Office over the last 10 months and am in a weird tricky position. To give to a very quick run down of what's happened so far:

1. Applied last November for a EEA2 family visa with my partner of 3+ yrs.

2. In Feb was declined visa with reason being that a photocopied tenancy agreement was submitted (which was NOT the case, all docs where original).

3. Went to First-Tier tribunal and the judge basically laughed and was surprised it had come to him. Also the Home Office NEVER turned up... Within 10 mins, the Judge awarded me my EEA2 residence visa.

4. 3 Weeks later I received a letter saying the Home Office we're appealing to the Upper Tribunal.. I was like WHAT?

5. 2 Weeks later, the Home Office sent me my EEA2 Family Residence Visa saying nothing about the appeal but that I can work, etc.

So here I am... I spoke today to the Home Office and they have NO IDEA what I should do and can advise that the visa is valid... BUT they do back it up and say that if something went wrong it can be pulled, etc... So after speaking with the Upper Tribunal today, they advised it could be 3 - 4 months before I get a date.

Right now, I'm so angry at the Home Office as they didn't bother to turn up, have no idea what they are doing themselves. So today I wrote a letter and included a copy of the EEA2 visa to the Presenting Officers Unit in Feltham of which I'm hoping to get a response this side of the next couple of months.

Can anyone advise what I should do?

(PS: The reason why the HO have appealed was because they said the First-Tribunal judge should have requested the HO do a reassessment instead of making the decision for himself, which I am WELL aware is allowed to do).

[Greenie]

If you have been issued with a residence permit then the appeal will be treated as abandoned. Write to the tribunal and enclose a copy of your permit. See para 33 1A

http://www.legislation.gov.uk/uksi/2003 ... ion/2/made

see also the procedure rules para 18

http://www.legislation.gov.uk/uksi/2005 ... le/18/made

[ddolheguy]

OMG... If I could reach you, I'd kiss and hug you. Thank you so much for that, I'm going to get my solicitor on that first thing tomorrow morning.

Thank you so much for that information

[vinny]

Moreover,

9. Once residence card has been issued it retains its validity as authority to remain unless or until it expires, lapses by reason of prolonged absence or is revoked under regulation 20. The Tribunal has considered the circumstances when a residence card may be revoked in the case of Samsam v Secretary of State [2011] UKUT 00165 IAC heard on the same day as this appeal

.

[Obie]

That is a good case law you pointed Vinny. The UKBA cannot lawfully proceed with this appeal unless they revoke this residence card, on the basis of lack of entitlement.

My suspicion is they have conceded and decided to issue you with residency.

According to the case Vinny kindly provided, they still have the option to revoke the Residence card.

If the initial refusal was on the basis of Regulation 8, and it states you do not qualify for consideration under Regulation 17(4), then the tribunal cannot lawfully make a decision under Regulation 17(4b), which has not yet been made by the Secretary of State. The Judge should have allowed the appeal as not being in accordance with the law, and directed the Secretary of State to make the decision. If however the refusal was under 17(4b), then the Secretary of state has exercised the discretion, and the Tribunal, can then substitute it with what they believe is correct.

This is consistent with 86(3)(b)

Section 86 is headed "Determination of Appeal", and the relevant subsections are as follows:

"…

(3) the Tribunal must allow the appeal in so far as it thinks that –

(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

…

(5) In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.

(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b)."

26. As Mr Montilla conceded at the reconsideration hearing, the Immigration Judge in the present case erred in law in that he wrongly assumed that the respondent had exercised his discretion not to issue the residence documents. As is plain from each of the notices of decision, the respondent never turned his mind to the question of whether the appellants were entitled to the positive exercise of his discretionary power under regulation 10(1). This is because the respondent took the view that each of the appellants had failed to demonstrate that he or she was genuinely dependant upon JR. It might have been possible in the notice of decision for the respondent to have stated that, regardless of that issue, he would not have exercised his discretion in favour of the appellants. However, that is not what he did and the Tribunal can see the logic in refusing to make what at that stage the respondent (albeit wrongly, as it turns out) regarded as a purely hypothetical decision.

27. The Immigration Judge was, accordingly, wrong to assume that an appeal lay to him in respect of a decision under regulation 10(1) that had not been made. The effect of the Immigration Judge's findings on dependancy (which have not been challenged by the respondent) was that the respondent needed to consider whether to exercise his discretion under regulation 10(1) in favour of the appellants. The fact that the Immigration Judge found that, as far as he was concerned, the discretion should not be exercised did not entitle him to dismiss the appeals. The decisions, as contained in the relevant notices, were incomplete. The Immigration Judge, ought, accordingly, to have found that, in the light of his findings on dependancy, those decisions were not in accordance with the law and remained before the Secretary of State to reach decisions under regulation 10(1). That discretionary decision cannot be taken for the first time by the Tribunal, if it has not been made by the respondent.

[ddolheguy]

Thanks so much for the above extract and comments.

So does this mean that now that the visa is provided by the Home Department, the Tribunal must abandon the appeal based on that recently I sent both the Tribunal and Home Department (Presenting Officers Unit) a copy of the visa to include in all records.

Also, my understanding of the revoke laws for the visa are that the Home Department can only revoke the visa if they know I am no longer with my EEA partner/family (as per 20) (which I have nothing to worry about there).

Finally, if I was to start employment with this visa and the Home Department we're too in the coming weeks revoke it before any appeal hearing, etc. Could I fight it? And of course continue to work while the outcome is being determined by the court?

The reason I ask is my partner and myself have been together 4 yrs and pretty much not been apart for more than about 5 days in that time with boxes upon boxes of receipts, bank statements, etc proving our relationship. So I'm 110% confident in always winning a case, it's just that the Home Department like dragging things out for their own fun.

[Greenie]

Thanks so much for the above extract and comments.

So does this mean that now that the visa is provided by the Home Department, the Tribunal must abandon the appeal based on that recently I sent both the Tribunal and Home Department (Presenting Officers Unit) a copy of the visa to include in all records.

Also, my understanding of the revoke laws for the visa are that the Home Department can only revoke the visa if they know I am no longer with my EEA partner/family (as per 20) (which I have nothing to worry about there).

Finally, if I was to start employment with this visa and the Home Department we're too in the coming weeks revoke it before any appeal hearing, etc. Could I fight it? And of course continue to work while the outcome is being determined by the court?

The reason I ask is my partner and myself have been together 4 yrs and pretty much not been apart for more than about 5 days in that time with boxes upon boxes of receipts, bank statements, etc proving our relationship. So I'm 110% confident in always winning a case, it's just that the Home Department like dragging things out for their own fun.

You have been granted the residence permit and as stated above, it can only be revoked in very limited circumstances. The UKBA have issued the permit, all you need to do is make sure the tribunal is aware of this. I imagine that what has happened is that some hot shot senior presenting officer has decided to apply for Permission to apppeal the determination, but in the meantime the EEA casework team has looked at the determination and your papers again and issued the residence permit anyway. However, as I stated in my previous post, as you have been issued with a residence permit the appeal will be treated as abandoned.

Yes you can start working now. They have no reason to revoke the residence permit according to what you have said.

[ddolheguy]

Just an update.

I've spoken today to the Presenting Officers Unit, my Solicator and the Tribunal and this is the information I've now been informed about.

Firstly, I made a mistake this morning in requesting the Tribunal abandon the appeal as I now have my visa. After speaking with my solicator that was a mistake as the request MUST come from the Home Department. I have since backpeddled and resubmitted a second fax requesting the Tribunal confirm the situation with the Home Department and that I do not wish to adbandon unless the Home Department wishes too.

I've been informed that the Home Department can revoke my visa on the grounds that an error has been made on their part and that it shouldn't have been issued originally.

Also after speaking with the Presenting Offices Unit, they are still continuing to purse the appeal to the Upper Tribunal, which means that although I can work on this visa, if I try to leave the country, they will NOT let me back in.

Either way, I feel like I'm being targeted by the Home Department and as the Upper Tribunal can take months to advise on a trial date, I really feel sick to be apart of such a ridiculous government process.

I can only hope that the appeal is abandoned from the Home Department's point of view or that the Upper Tribunal get me a date ASAP.

[Directive/2004/38/EC]

I assume you are talking about a Residence Card since you are living in the UK already. Visa is only for somebody who is outside the UK and wanting to come here.

I've been informed that the Home Department can revoke my visa on the grounds that an error has been made on their part and that it shouldn't have been issued originally.

This is kind of a non statement. Yes, if they put a Residence Card vignette in your passport in the name of John Major, then they could invalidate it. But don't worry about it. If it is in your name, with your details, then relax and breathe easily.

Also after speaking with the Presenting Offices Unit, they are still continuing to purse the appeal to the Upper Tribunal, which means that although I can work on this visa, if I try to leave the country, they will NOT let me back in.

What exactly did they say? Did they really say you can work freely but you can not travel into and out of the country? I would request your Subject File from UKBA so you can see exactly what they recorded in your file... http://www.ukba.homeoffice.gov.uk/navig ... onal-data/

Either way, I feel like I'm being targeted by the Home Department and as the Upper Tribunal can take months to advise on a trial date, I really feel sick to be apart of such a ridiculous government process.

Relax and breath. Even if they want to waste more time on your case, you very likely have nothing to worry about. You have an established relationship with an EU citizen and can work and get on with life.

I can only hope that the appeal is abandoned from the Home Department's point of view or that the Upper Tribunal get me a date ASAP.

I would suggest you contact your MP for assistance in sorting this out. They have responsive contacts within UKBA. And UKBA can say things in their letters to MPs which are useful.

[Directive/2004/38/EC]

2. In Feb was declined visa with reason being that a photocopied tenancy agreement was submitted (which was NOT the case, all docs where original).

3. Went to First-Tier tribunal and the judge basically laughed and was surprised it had come to him. Also the Home Office NEVER turned up... Within 10 mins, the Judge awarded me my EEA2 residence visa.

Did they return the original tenancy agreement to you?

Also, it is apparently common that a Home Office presenting officer does not show up. Happened also to my niece who was appealing an amazingly stupid UKBA decision (she won and there were wonderful sarcastic comments about UKBA in the judge's written ruling! It was almost worth the hassle to read that).

[ddolheguy]

Yes the Home Office did post the original tenancy agreement back which was funny seeing they thought it was a copy.

And yes sorry I am talking about a Residence Card (I just think of it as a visa).

This case seems to get weirder every hour. Yesterday afternoon I was lucky enough to get the contact detail of the Senior Case worker who was working on my case. After a conversation with her, she said the Home Department has no record of requesting an appeal with the Upper Tribunal and that they where happy with the First Tier decision, hence they issued the permit.

So to get all this cleared and sorted, she has agreed to work with me and clear this mess up. This morning I scanned in a copy of the Tribunal appeals document and emailed it to her. I'll be speaking with her this morning, so hopefully by the end of today this will all be sorted.

I'll let you guys know what happens.

[Greenie]

Just an update.

I've spoken today to the Presenting Officers Unit, my Solicator and the Tribunal and this is the information I've now been informed about.

Firstly, I made a mistake this morning in requesting the Tribunal abandon the appeal as I now have my visa. After speaking with my solicator that was a mistake as the request MUST come from the Home Department. I have since backpeddled and resubmitted a second fax requesting the Tribunal confirm the situation with the Home Department and that I do not wish to adbandon unless the Home Department wishes too.

I've been informed that the Home Department can revoke my visa on the grounds that an error has been made on their part and that it shouldn't have been issued originally.

Also after speaking with the Presenting Offices Unit, they are still continuing to purse the appeal to the Upper Tribunal, which means that although I can work on this visa, if I try to leave the country, they will NOT let me back in.

Either way, I feel like I'm being targeted by the Home Department and as the Upper Tribunal can take months to advise on a trial date, I really feel sick to be apart of such a ridiculous government process.

I can only hope that the appeal is abandoned from the Home Department's point of view or that the Upper Tribunal get me a date ASAP.

Honestly - what a load of rubbish!

The procedure rules require any party who is aware of an event specified in regulation 33(1A) of the Immigration (European Economic Area) Regulations 2000(1) - in your case - the issue of a residence card/permit to inform the Tribunal. You haven't made a mistake. If the tribunal see you have been issued a residence card, then they will treat the appeal as being abandoned by the UKBA/Home Office. If the Home Office then decide that they have made a 'mistake' in issuing you the card (which they won't) then it would be for them to make the relevent decision, which would attract another right of appeal.

And as for the POU saying they are pursuing the appeal - for goodness sake - they need to read the regulations and the procedure rules and try picking up the phone and speaking to their colleagues. They can't pursue the appeal if a residence card has been granted. This is prime example of how the UKBA seems to think it perfectly acceptable making poor decisions and wasting tax payers money in trying to pursue them at the tribunal. All this talk of applicants making 'frivilous' applications and appeals- and UKBA is the worst culprint in this respect in wasting court time.

[Directive/2004/38/EC]

This case seems to get weirder every hour. Yesterday afternoon I was lucky enough to get the contact detail of the Senior Case worker who was working on my case. After a conversation with her, she said the Home Department has no record of requesting an appeal with the Upper Tribunal and that they where happy with the First Tier decision, hence they issued the permit.

So to get all this cleared and sorted, she has agreed to work with me and clear this mess up. This morning I scanned in a copy of the Tribunal appeals document and emailed it to her. I'll be speaking with her this morning, so hopefully by the end of today this will all be sorted.

Keep detailed notes of your conversations, with date and time and the name of the person your were talking with. And keep copies of EVERYTHING you send UKBA.

I hope it sorts out smoothly, but assume that Murphy's law is in play here too.

[Obie]

The procedure rules require any party who is aware of an event specified in regulation 33(1A) of the Immigration (European Economic Area) Regulations 2000(1) - in your case - the issue of a residence card/permit to inform the Tribunal. You haven't made a mistake. If the tribunal see you have been issued a residence card, then they will treat the appeal as being abandoned by the UKBA/Home Office. If the Home Office then decide that they have made a 'mistake' in issuing you the card (which they won't) then it would be for them to make the relevent decision, which would attract another right of appeal.

And as for the POU saying they are pursuing the appeal - for goodness sake - they need to read the regulations and the procedure rules and try picking up the phone and speaking to their colleagues. They can't pursue the appeal if a residence card has been granted. This is prime example of how the UKBA seems to think it perfectly acceptable making poor decisions and wasting tax payers money in trying to pursue them at the tribunal. All this talk of applicants making 'frivilous' applications and appeals- and UKBA is the worst culprint in this respect in wasting court time.

I believe the 2001 EEA regulations is not in force any longer, it is the EEA regulations 2006 as ammended by EEA regulation 2011, to reflect the Metock judgement.

I find it quite strange that a Senior presenting officer will proceed to lodging an appeal without instructions from the Senior caseworker representing the Secretary of State.

[Greenie]

I believe the 2001 EEA regulations is not in force any longer, it is the EEA regulations 2006 as ammended by EEA regulation 2011, to reflect the Metock judgement.

Sorry- yes - the procedure rules 2010 as amended now refer to the 2006 EEA regs

http://www.justice.gov.uk/downloads/gui ... 2Rules.pdf