EEA2 IN-Country Appeal

[JA13I]

There are statistics that have been collected to back up what I said about the Home Office appearances at Tribunals and the % of appeals that are won when represented, unrepresented and paper only , so it's not speculation by me; you can search for them if you like, but it's not crucial to this thread, so I am not going to waste time searching for them.

Sorry mate. I did not bring up the statistics and if you have been around long enough you will know that the 'burden of proof' of proving a statistic falls on the person who is possibily making it up, not the person contesting it.

My statements did not contradict each other. They have to be read in context following the thread of the discussion.

I read your post again and I still do not feel that your posting was in the same flow as the discussion and think that it is disheartening to posters who do not know better and is looking for advice.

The appellant first has to prove to the tribunal that they are legally married or in a subsisting relationship( and exercising Treaty Rights) so that's the burden of evidence for the appellant - if they do not prove that then they have no grounds for appeal. If they prove they are married ( and exercising Treaty Rights)they have met the burden of proof.

When the HO rejects an application on the basis of 'Marriage of convenience', it means that they already have proof that there is a marriage/civil partnership/unmarried partnership. Otherwise, the reason for rejection would have been 'Relationship not existing with the EEA national'. The proof of existing marriage/relationship should be in the bundle the tribunal will be recieving from the HO. (See how I am placing my eggs by using the word 'should' instead of'must'). However, while it is a good idea to dispell the allegation of the 'marriage of convenience' by submitting the marriage certificate or similar proofs, I would suggest not to go over board with this because of what you have mentioned-

Furthermore, There are examples of the Tribunals rejecting the Reason for Refusal as unlawful then stating that it did not affect the material decision because the appellant did not qualify anyway for some other reason, so the appeal is dismissed even when the Reason for Refusal was wrong.

This, I agree with

[nonspecifics]

DELETED

[treefriend]

Furthermore, There are examples of the Tribunals rejecting the Reason for Refusal as unlawful then stating that it did not affect the material decision because the appellant did not qualify anyway for some other reason, so the appeal is dismissed even when the Reason for Refusal was wrong.
.

You seems to have alot of example, by the way where you get them from. or u just mention them to prove ur point.

I initially started this thread so that people can share their experience of eea2 appeals not pass on their personal opinions/assumptions to disappoint people. please stick to the core of this thread. thanks

[nonspecifics]

We are here to discuss EU in country appeals.

[mcovet]

I did not see even an iota of anything offensive, disheartening or anyth similar to what the others described. No need to become defensive mate, the other guys are rephrasing and repeating what you are saying but try to argue, while agreeing with everything you said.

Keep up the good work, loads of common sense in your posts!!!

I politely request that the people who have quoted me delete those quotes from this thread, as I no longer wish to be a contributor to this thread.

My apologies for any inconvenience.

Thanks.

[joshuaaubin]

I politely request that the people who have quoted me delete those quotes from this thread, as I no longer wish to be a contributor to this thread.

My apologies for any inconvenience.

Thanks.

I think you should not go to that, i like your post and it has really advice me, how can you defend if you dont know what is coming, with your post i have known what to expect and thank so much for your good work.

[JA13I]

I did not see even an iota of anything offensive, disheartening or anyth similar to what the others described. No need to become defensive mate, the other guys are rephrasing and repeating what you are saying but try to argue, while agreeing with everything you said.

If I were to appear in front of a judge for defending the accusation of a marriage of convenience hearing from an experienced member of an immigration forum that the burden of proof is with me (even though the burden of is with the HO in actuality), I will be disheartened. So, I do NOT agree with EVERYTHING he/she said.

While I do not agree with everything you said as well, I agree that there is no need to get defensive by 'nonspecifics' and we all should respectfully air our opinions.

[nonspecifics]

To joshuaaubin and mcovet, thank you for the kind words.

To anyone who is going to a tribunal: it is based on civil law procedure, so do not worry. It is not a criminal court. You are not the accused. You are not there to defend yourself.

You are there because YOU raised the appeal so you can prove you are legally entitled to a residence card and so UKBA were wrong to refuse your application.

If someone has been refused a residence card and the reason for refusal was that UKBA suspect / believe it is a marriage of convenience or whatever the reason/s for refusal; the applicant can either accept that decision, or if they believe the decision was wrong they get the chance to appeal that decision.

[nonspecifics]

When you appeal you have to state the reason/s why you think the decision was wrong. It gives reasons such as facial discrimination, unlawful decision etc.

The Tribunal will review the decision by UKBA.

So he can decide if UKBA got it right when they refused the residence card, the judge will very often re-examine your whole case (not just the reason for refusal) using all the evidence, including your appeal bundle which should include copies of all the documents you submitted in your original application and any further correspondence between you and the UKBA.

Do read through the papers to see if all of the copies of documents are included. You are given some time to add more evidence, but not very long, so do not delay.

Thus, when you appeal you are making an assertion saying: I am entitled to this residence card and UKBA got it wrong when they refused it.

In law, when you make an assertion then you need to prove your assertion is true, in civil law it is " on the balance of probabilities" or "more likely than not".

An appellant must prove he was entitled to the residence card and so he was correct to appeal the refusal.

This gives the appellants a chance to prove they are legally married ( for married couples) and exercising Treaty Rights and so fulfilling the requirements of the 2006 Regulations which is based on the 2004 EU Directive. Thus, they get the chance to prove they are entitled to a residence card and thus the refusal was unlawful.

If the UKBA / Home Office refused the residence card because of a suspicion it is a marriage of convenience, then, like any assertion, they need to prove that assertion with evidence, that it is indeed a marriage of convenience .

The judge will review all the evidence e.g. marriage certificate, photos and documents showing a shared life. It makes good sense to provide as much evidence as possible which supports it being a genuine marriage.

As has been pointed out, legally it has been established that a marriage certificate is proof enough of a marriage, but if I remember rightly, they won that case after going through tribunals and then going to court. Anyone with any sense would build as strong a case as possible to try and avoid a long drawn-out legal fight.

The judge may also ask the appellant questions about their relationship and history together, which those in a genuine relationship would normally be able to answer:

"Judge asked me and my wife various questions bout how we met, who was at the wedding, where pictures were taken and etc."

All this also helps the judge to check that it is a genuine relationship.

The judge will consider any evidence submitted by the respondents ( the Home Office) - if there is any.

After some weeks you will be issued with the decision.

[nonspecifics]

My experience of an appeal is that the Tribunal appeal was lost. The EU national wished someone had warned them of all the negative things too, so they could have improved their submission to the appeal.

They chose a papers only appeal. Thus, it was decided on the evidence in the appeal bundle. UKBA ( deliberately or not?) left out several documents originally submitted in the application, which the applicant felt helped prove their entitlement, but the appellant did not send copies of the missing documents to the tribunal. They naively just accepted the appeal bundle as prepared by UKBA and let the judge decide on that ( apart from the evidence proving false insinuations by UKBA. )

Why was the appeal lost?

Even though in the refusal they made insinuations, the Home Office did not prove their insinuations / accusations were true; the appellant easily proved the insinuations were untrue.

Sadly, the appellant failed to prove they were entitled to the residence card. They failed to supply enough evidence the EEA was exercising Treaty Rights.

That is why I said the appellant has to prove their case - as they are the one making the first assertion that they are entitled to the residence card.

The appellant went to great lengths focusing on disproving the false accusations.

Unfortunately, with so much focus on defending themselves against false accusations, they failed to prove the exercising of Treaty Rights.

Thus, the appellant failed to prove they met ALL the requirements under the 2006 Regulations, so the appeal was dismissed.

The judge did not even comment on the insinuations by UKBA.

Hopefully, others learn from this.

If you base your case on picking fault and criticising what others said, whether true or not, you will not prove your case. That will only prove you are a know-it-all who does not know how to prove a case in law.

However, present a strong case, with as much physical evidence as possible, clearly explained, supported with case law examples ( if needed), which proves you are entitled to the residence card, and you can win your case.

[JA13I]

Bravo 'nonspecifics'. That is eloquently well said. These are the kind of posts I like and expect from you. Cheers.

[nonspecifics]

Thanks JA13I.

This may also be of interest to those who are involved in the appeals process.

It is a lawyers' guide about appeals, but explains it simply enough for ordinary people too.

It may not be totally up to date, as the law changes regularly, but the basic information about how to present an appeal remains valid.

It is a downloadable pdf file, so you will need Adobe reader or Foxit reader etc to read it in Windows.

(Always Anti-virus scan files you have downloaded, before opening them.)

Find it here:

http://www.ilpa.org.uk/data/resources/1 ... ppeals.pdf

[JA13I]

Useful attachment that. Thanks. I will read it better when I get the time.

[treefriend]

Good news:
Our appeal is allowed in just one week. EEA2 was applied on 11 of july got COA on 27 July. EEA2 was refused on 28 july due to alleged 'marriage of convenience. Appealed and hearing was on 2/09/11. No respondent came and surprisingly no evidence produced that why our eea2 was refused. I must tel that last two months have been soul-destroying...

Best out of worst. I wish best of luck who are in the same position. Keep faith in God.

Thanks again for your thoughtful comments specially 'nonspecific' and others.

[nonspecifics]

Congratulations Treefriend and all the best for the future.

Thanks for the feedback.

I am sure your words will give hope and encouragement to others facing appeals.

[joshuaaubin]

Good news:
Our appeal is allowed in just one week. EEA2 was applied on 11 of july got COA on 27 July. EEA2 was refused on 28 july due to alleged 'marriage of convenience. Appealed and hearing was on 2/09/11. No respondent came and surprisingly no evidence produced that why our eea2 was refused. I must tel that last two months have been soul-destroying...

Best out of worst. I wish best of luck who are in the same position. Keep faith in God.

Thanks again for your thoughtful comments specially 'nonspecific' and others.

Congrat, that was great, am so happy for you, my appeal is next week till now home office have not send any evidence or bundle, it is now 5days less which they suppose to have send before 5days to the appeal. I wish mine goes too in my favour just like your, we have prepared for them and our solicitor and barrister will be there with us they have really make the case roburst, with God i will definitely be coming with a good news here.

[treefriend]

I and my wife are planning to sue UKBA for mishandling our eea2 application which was refused in just 2 weeks and in very expedited manner. In hearing no evidence was produced, and judge correctly mentioned that this was very unsatisfactory from UKBA considering implications of refusals for appellant.

Can anyone please guide us toward the first step we can take? We are ready to hire private lawyer if needed, as we are very determined to let ukba know that they have tried to destroy our lives.

I lost highly paid job and my wife was gravely upset whilst I was detained unlawfully.

[joshuaaubin]

Still no bundle from HO, appeal is on tuesday next week, will they still send it? As i read on my appeal paper bundle should be send to both parties before 5days to the appeal.

[Obie]

Treefriend i am very pleased for you, but please be aware that UKBA has up to five working days following the promulgation of the determination to appeal against, and they have a funny and wicked habit of doing so, when they have failed in the past to attend hearing and supply bundles in time.
Their decision to appeal is usually communicated about a fortnight after the deadline to the Respondent, which will then be you.
Hopefully it will not get to that, but it is a possibility.

Once this is resolved and a residence card is issued, you can proceed with a JR, for a declaration of Unlawful detention and damages, or you can proceed with a civil claim at the civil courts.

You should take things one at a time and see how the first success plays out.

In regards to your query Josh, don't hold your breath on the bundle. They may provide it the day before the hearing or take it to court. This is how this incompetent civil servants behave, and unfortunately they get away with it most of the time, in gross violation of tribunal procedure and regulations.

I wish all of you guys the best.

[joshuaaubin]

Thank you Obie for your advice, this true a violation as they dont let you see what they have as evidence but using your evidence againt you without you preparing against their evidence at court. All we just have to do is wait and see what this wicked civil servant have againts us, hopefully the law will always prevail.

[treefriend]

Once this is resolved and a residence card is issued, you can proceed with a JR, for a declaration of Unlawful detention and damages, or you can proceed with a civil claim at the civil courts.

You should take things one at a time and see how the first success plays out.

Thanks Obie,
We will definitely wait for RC before we can process with something else. What is JR?

Thanks

[joshuaaubin]

Judicial Review

[joshuaaubin]

Treefriend, update if HO appeal against the tribuner decision to allow your appeal. It suppose to be 5days for them to appeal it please update us.

[joshuaaubin]

Just back from the tribuner, no HO bundle, no HO representative, judge say cannot cross exermine us for HO as that is not the judge job. And the HO is not challenging our evidence has before him. Only our barrister cross exermine us in the present of the judge and judge say will get back in 2 to 3 weeks time. Hope all is okay.

[treefriend]

Just back from the tribuner, no HO bundle, no HO representative, judge say cannot cross exermine us for HO as that is not the judge job. And the HO is not challenging our evidence has before him. Only our barrister cross exermine us in the present of the judge and judge say will get back in 2 to 3 weeks time. Hope all is okay.

Good to hear that. hopefully you will be ok.

We are quite shocked today as our solicitor informed us that HO has gone to upper tribunal. This means we have to wait for 4 more weeks , i keep on reporting and spending money, I cant work(am sure after hearing this news my employer will fire me). 4 more weeks for more miserable life...