EEA Family Permit Query

[JennyK]

I have a query regarding my husband's Refusal of Entry Clearance and I was wondering whether someone could give me advice.

I moved from England to live with my boyfriend in Turkey in January 2010. We got married in September 2010 and we would now like to return to the UK together with our daughter who was born in Turkey in November 2010. My daughter and I both have Dutch passports so we applied for an EEA Family permit for my husband. It was refused because I am living in Turkey and they are not satisfied that I am a qualified person in accordance with Regulation 6 of the Immigration (EEA) Regulations 2006. My understanding was that I am entitled to return to the UK together with my husband and I did not have to be living in England at this present time in order to apply. I provided evidence that I lived and worked in the UK for 13 years previously and that I own a flat in London. We also provided evidence of the funds we have to support ourselves when we arrive in the UK before I find employment and I made it clear that I would be seeking employment as soon as we got there. I also provided a letter from my previous employer agreeing to interview me upon my return.

My query is whether I have the right to appeal and if so on what basis can I appeal? I would very much like to avoid going to the UK without my husband as I have no one there to look after my daughter and I am not prepared to leave her in Turkey while this gets sorted out.

Help please!

[Lucapooka]

That's a incorrect refusal. You don't need to be a qualified person for your partner to enter the UK. That particular requirement would only kick in 3 months after your (the EEA national's) entry to the UK, if he wished to apply to enter or remain. If you are in a hurry, I suggest that you re-apply (it's free and quick) rather that wait for an appeal.

You don't need to provide evidence of your previous time in the UK; it's irrelevant but I wonder if, on seeing this, they assumed that you were still resident there (and have been there for more than 3 months) as that would require you to be qualified. Seems the only plausible reason for this. But given that you left more than six months ago you have broken residence and can start afresh. Make sure you spell this out in the new application.

[nonspecifics]

I agree that it was wrong to refuse you.

They may have wrongly assumed you are still resident in the UK but not exercising Treaty Rights and so not a qualified person.

If you lived and worked in the UK for 13 years , did you not acquire permanent residence ? (You could have acquired it, even if you did not apply for it to be confirmed) .

Permanent residents do not have to exercise Treaty Rights at all, after the three months. They are automatically a qualified person.

Assuming you did not acquire PR, as you have been out of the UK for more than a year, you are not a resident of the UK, so as Lucapooka pointed out, you do not need to be a qualified person for the first three months.

[JennyK]

thanks for your responses. I made it very clear that I was not residing in the UK at present...I thought that would go in my favour as I wanted to prove that we are a genuine couple and our marriage was not one of convenience.

They actually stated in the refusal that I had submitted a tenancy agreement in both our names for our flat in Turkey which proved I wasn't living in the UK and therefore I was not a qualified person and they are not satisfied that I am residing in the UK!

It would be much quicker to reapply and not appeal but they've kept all my original documentation even though I also gave them copies...do you know if I'll be able to request the papers back in order to reapply?

[Lucapooka]

It looks like the ECO was not competent to make a decision on an EU application and with regard to the paperwork not being returned, it also looks like the visa post is completely mismanaged. If you look at the consular website there should be an address for ECM complaints. You should contact them and ask not only for your paperwork, but also an immediate reconsideration by an ECO who understands the EU rules.

[Directive/2004/38/EC]

You provided too much in your application. It can only be used against you, and has been in this case.

If you have lived and worked in the UK for 13 years, then you are very likely considered to have Permanent Residence there. You can be gone from there for up to 2 years without loosing your PR.

Because you have PR, you no longer need to be a qualified person.

You should complain like hell, and also reapply. With a very carefully worded cover letter, and FAR LESS evidence submitted, it should be a pretty quick and straight forward application.

What statements (exact words) did you make in your original application and/or cover letter about your UK residence?

[JennyK]

Unfortunately I never applied for Permanent Residence in the UK...is it automatic considering the length of time I spent there?

In the visa application we said that I lived and worked in the UK for 13 years and then made a very difficult decision to leave my job in England and move to Turkey to live with my boyfriend (now husband). I also wrote a statement detailing my relationship with my husband (i.e. how we met, the holidays I took to Turkey to see him before moving...all to prove that we have a genuine relationship). I also provided my final council tax bill and the tenancy agreements for my flat in London (to prove that I have a property and a place to live when we go to England).

Seems like I did give too much information but I was informed by an immigration solicitor to provide as much detail as possible rather than too little. I've looked at the consular website and unfortunately you cannot make a complaint about a refusal, you can only appeal or reapply. One last query I have is can you please advise me what I should write when I reapply to avoid getting the same response?

Thanks again for all the advice. Hopefully I'll have better luck next time!

[Lucapooka]

For the next application, you should be able to make an informed distillation of the information in this discussion. There are two issues that apply based on how they view your eligibility:
You are either being viewed by the UKBA as a permanent resident of the UK, in which case you don't need to be a qualified person to sponsor your partner; or they do not view you as a permanent resident but, you have now lived outside the UK for sufficient time to break your previous on-going (but not permanent) residence and therefore do not need to be a qualified person for the first three months of your new entry. So, however they look at your situation, you don't need to be qualified person for this application.

You can make a complaint to the ECM in any situation where you have dissatisfaction about the standard of the service (and this is substandard service, compounded by the oversight to return your paperwork) and the address is there on the consular website.

[Directive/2004/38/EC]

Unfortunately I never applied for Permanent Residence in the UK...is it automatic considering the length of time I spent there?

PR is automatic, at least since 2006. Were you working since 2000 in the UK?

In the visa application we said that I lived and worked in the UK for 13 years and then made a very difficult decision to leave my job in England and move to Turkey to live with my boyfriend (now husband). I also wrote a statement detailing my relationship with my husband (i.e. how we met, the holidays I took to Turkey to see him before moving...all to prove that we have a genuine relationship). I also provided my final council tax bill and the tenancy agreements for my flat in London (to prove that I have a property and a place to live when we go to England).

Did you ever say that you had left the UK permanently or forever or for good or something similar? Please check and remember carefully!

The only way to loose PR is if you leave the UK permanently, or if you are gone for more than 2 years.

Seems like I did give too much information but I was informed by an immigration solicitor to provide as much detail as possible rather than too little. I've looked at the consular website and unfortunately you cannot make a complaint about a refusal, you can only appeal or reapply. One last query I have is can you please advise me what I should write when I reapply to avoid getting the same response?

Too much information just confuses the situation. Your solicitor was, in my opinion, wrong. Oh well.

I would personally next time provide far less information and documentation. Definitely provide your and your husband's passport and your marriage certificate. That is the base that all applications require.

Provide NO evidence about you or your husband's current work, or savings, or future work in the UK. Provide no evidence of housing in the UK. You are married: your marriage certificate is 100% all you need to provide about the relationship.

If they consider you to have lost your PR than that will be enough (with a cover letter).

Your husband can also enter if you have PR (which has some advantages). You will need to provide evidence that you have PR, namely that you were working for a 5 year period in the UK before leaving.

[JennyK]

Yes...I worked in the UK from 1997 and stopped when I left in Jan 2010.

I definitely did not say that I had left the UK permanently...the reason I provided evidence of my flat in London was because I had every intention of returning otherwise I would have sold before I left. I also made that clear in my application.

I submitted an original letter from my previous employers in London confirming that I worked for them for 10 years...unfortunately this was not returned to me but I can ask my company to send it again. Will that be enough to prove that I have PR?

[Directive/2004/38/EC]

Super! You have PR!

That means that you do not have to work or do anything special when you return to the UK. You of course can.

Frankly you do not need to prove you have PR at this point. But I think it is worth making a claim to it in your cover letter and including some evidence. I am happy to assist with how I might write such a cover letter were I in the same situation.

Did you keep photocopies of everything you submitted the first time, such as the letter?

[Nimitta]

It looks like the ECO was not competent to make a decision on an EU application and with regard to the paperwork not being returned, it also looks like the visa post is completely mismanaged. If you look at the consular website there should be an address for ECM complaints. You should contact them and ask not only for your paperwork, but also an immediate reconsideration by an ECO who understands the EU rules.

A friend of mine and her husband (nonEEA) got refused because of the same reason. They applied from outside of the EEA Union (in Russia) for EEA FP to visit the UK for 5 days. The refusal letter had the standard phrase "I am not satisfied that your EEA wife is exercising treaty rights in the UK". They suggested her husband to apply for a general visitor visa and pay for it. She (Bulgarian citizen) asked the Bulgarian SOLVIT for help. Borislav Dimitrov (Bulgarian SOLVIT) wrote to her that SOLVIT cannot help her because according to the Directive 2004 article 3, the Directive applies only to movement within the borders of the EU, which according to him means that if a EEA and a non-EEA are currently outside of EEA, nonEEA looses his/her rights to accompany EEA spouse on EEA rules (free of charge visa etc.) and must apply for a general tourist/visitor visa.

[Lucapooka]

EUN2.5 What did the ECJ judgment on Metock say in relation to issuing EEA family permits?
The ECJ judgement on Metock in July 2008 prohibited Member States from having a general requirement for third country national spouses of EEA nationals to be lawfully resident in another EEA member state before they can benefit from a right to reside under the EU Free Movement of Persons Directive. Therefore, we can no longer apply the lawful residence requirement (which was based on the case of Akrich) or our own domestic legislation (the Immigration Rules) to family members seeking first admission to the EEA from outside the EEA.

[Nimitta]

EUN2.5 What did the ECJ judgment on Metock say in relation to issuing EEA family permits?

Yes, Lucapooka, I agree. And she sent to him the quote from the UKBA site as well as the link to the Metock case. Bulgarian SOLVIT's idea was that Metock case cannot be applied in her case because she (EEA citizen) is not in the UK/EU at the moment of application.

[Lucapooka]

Clearly not correct and perhaps not ever related to Metlock. If the EU national is not intending to enter the UK ahead of or with the applicant, EEA permit can't be issued, irrespective of the location where the application is submitted. Maybe that was not established in the application.

I'm in Brazil and have seen many Brazilian friends with dual nationality (Port or Ital) go to the UK with their non-EU spouses on an EEA Family Permit. They had no difficulty getting this where the EU national and the non-EU national were both outside the EEA.

[86ti]

I agree here. Either the OP is a permanent resident or a person with a fresh claim due to the length of absence. In neither case should the applicant have been refused because of not being a qualified person.

[86ti]

Bulgarian SOLVIT's idea was that Metock case cannot be applied in her case because she (EEA citizen) is not in the UK/EU at the moment of application.

Utter nonsense. The EEA rules are not a two tier system. It all depends on personal circumstances.

[EU_lawyer]

@JennyK

An EEA family permit should have been issued to you. It appears that the Entry Clearance Officer got your decision wrong.

Under the EU rules, an EEA family permit must be issued since your husband is a family member of an EU national; and he will be travelling to the UK within six months of the date of the application; and he will be accompanying you to the UK or joining you there.

You should be able to reapply without the need to obtain the return of your documents.

I would suggest you contact Your Europe Advice as they'll be able to advise you on your various options.

[EU_lawyer]

@Nimitta

You should refer your friends to Your Europe Advice and they should explain that SOLVIT Bulgaria has been unable to resolve the matter.

Your Europe Advice is able to refer cases for free legal representation by a partner law firm.

[Directive/2004/38/EC]

You should refer your friends to Your Europe Advice and they should explain that SOLVIT Bulgaria has been unable to resolve the matter.

Your Europe Advice is able to refer cases for free legal representation by a partner law firm.

Can you please explain more in general about this free legal representation. What is the scope of the representation in a particular case? What are the requirements for getting this assistance?

[JennyK]

Frankly you do not need to prove you have PR at this point. But I think it is worth making a claim to it in your cover letter and including some evidence. I am happy to assist with how I might write such a cover letter were I in the same situation.

Thanks very much...I might just take you up on that offer as I'm really unsure how to word a letter for the next application. I'm still undecided about whether to reapply or appeal. Our intention was to go to England in January so I think we have enough time to wait for the appeal if we decide to do it.

Did you keep photocopies of everything you submitted the first time, such as the letter?

Yes, I have copies of everything apart from a final council tax bill for my flat in London but I don't think I really needed to submit it in the first place.

[Nimitta]

I'm in Brazil and have seen many Brazilian friends with dual nationality (Port or Ital) go to the UK with their non-EU spouses on an EEA Family Permit. They had no difficulty getting this where the EU national and the non-EU national were both outside the EEA.

Moreover, on the SOLVIT webpage there is a sample story how SOLVIT helped to resolved similar issue (applying for EEA FP from outside of EU). My friend mentioned that in her letter to Bulgarian SOLVIT officer but it did not have any effect on him. He just ignored it.

The fact that the nonEEA husband was going to be accompanied by his EEA wife had been mentioned in the letter attached to the application. It did not help either. The UK embassy in Russia simply ignored it. The reason why is according to them if EEA and nonEEA are moving to the UK the EEA spouse has to prove he/she is currently in the UK and has being exercising treaty rights for some time. If they are going for a short trip, nonEEA is supposed to apply for a tourist visa. [/u]

[Nimitta]

You should refer your friends to Your Europe Advice and they should explain that SOLVIT Bulgaria has been unable to resolve the matter.

Thanks. I let them know.

[EU_lawyer]

Can you please explain more in general about this free legal representation. What is the scope of the representation in a particular case? What are the requirements for getting this assistance?

Your Europe Advice is administered by ECAS (European Citizen Action Service) on behalf of the European Commission.

ECAS has entered into an agreement with leading law firm Freshfields to provide free legal representation to citizens who are facing problems in exercising their rights under Directive 2004/38.

http://www.freshfields.com/aboutus/csr/ ... world.html

In order to access the service, citizens have to make a request through Your Europe Advice with a full explanation of their problem and details of their interaction with the national authorities.

[Directive/2004/38/EC]

I moved from England to live with my boyfriend in Turkey in January 2010

So the "retention of PR" clock started ticking then. If you move back to the UK before "2 years" has elapsed, then you retain your PR. If you move back at "2 years" or "2 years plus one day", I am pretty sure you will loose your PR.

(2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.

With PR it means you are not required to be working or otherwise exercising treaty rights. If you have PR, you could mail your husband's Residence Card application to UKBA from the airport on arrival, since you (the EU citizen) are not required to be working or doing something else.

Without PR you will be required to be doing something in the UK before your husband can apply for his RC. And then you need to keep doing one of the approved things for the next 5 years until you got your PR again.

If I were you, I would make sure you spend less than 2 years away from the UK in order to retain your PR.

Thanks very much...I might just take you up on that offer as I'm really unsure how to word a letter for the next application. I'm still undecided about whether to reapply or appeal. Our intention was to go to England in January so I think we have enough time to wait for the appeal if we decide to do it.

Hard to say. January is only 3 months away (yikes!). Appealing can be awfully slow.

Or you can appeal AND apply for a new FP. Do it in parallel.

Or just do a new application.

I would tend to start soon. Ideally it will be a smooth and easy process, but given that you have already have a refusal, I would expect the worst and then instead be overjoyed when it is fast and easy.

I personally would also tend to complain very loudly. They mishandled your initial application and unless you complain, NOBODY will know about it. You do not need to do it now, but please please do it eventually! http://www.ukba.homeoffice.gov.uk/about ... complaint/

Did you keep photocopies of everything you submitted the first time, such as the letter?

Yes, I have copies of everything apart from a final council tax bill for my flat in London but I don't think I really needed to submit it in the first place.

Perfect!