Definition of 'Partner' under EEA Regulations 8(5)?

[kk2012]

Urgent advise needed.......!

We received a refusal letter for a visa application for family member of an EEA national.

The refusal letter says: "we will not normally accept that there is a durable relationship where these criteria are not met, though each case is considered on its merits. There will be occasions where the criteria are not met but we accept that regulation 8(5) has been met."

The fact that they say that they sometimes accept a partnership as durable even without meeting the usual criteria, i.e. 2 years cohabitation, in what way could we argue that our relationship is durable?

[Lucapooka]

we have only been living together for 1 year

By your own admission you are not in a durable relationship that has currently lasted two years. The criteria for durable relationship in EU applications closely follow (but are not exactly) those for UK applications and can come down to an arbitrary decision by the ECO.

...the ECO needs to go on to consider whether, in all the circumstances, it appears to the entry clearance officer appropriate to issue the family permit'
EUN2.11 How do unmarried partners qualify for an EEA family permit?

You have a lawyer so listen to his advice. The basis of the appeal would have to be that your particular islamic marriage was legal and duly registered in the country where it was contracted. This applies to any and all types of marriage and so there is nothing discriminatory about that policy.

[kk2012]

Thanks for that document. Is that all, what they mean by merits: children, joint finances, and 2 years cohabitation? Or is there anything else they may consider?

If we go the bank and open an account together, would that still help?

I really did not know whether to appeal or not, I was very worried about him and unfortunately only saw the refusal letter 2 days ago, which says at the end that you may alternatively wish to submit a further application, if you consider that you have a right to reside in UK as a matter of EU law. If I would have seen it, I would have been calmer about him, and would not have appealed. But the lawyer said to do that, and we have to go through it now.

What is the worst case that could happen if the appeal fails, could they deport him instantly or soon after, without giving him any chance to a civil marriage in UK?

[kk2012]

[Lucapooka]

we have only been living together for 1 year

This is relevant and insufficient in length, and opening a joint bank account won't address of fix this.

An islamic marriage in the UK is not recognised as a marriage in UK law unless it is supervised by the registrar. There are very few mosques that offer this service so I must assume that yours wasn't (hence the refusal).

[toni34]

you r missing the point,whether your islamic marriage is valid or not is not the issue,the issue here that you did not address with your documentation is whether there is durable relation,and you cant prove this by just getting a joint statement,it is an all embracing thing here in the sense that the homeoffice will look at the whole picture,that is they will look at all the factors needed to be present in a marriage and try to apply it to your case,the factors that they will take into consideration is as follows,children together, length of relationship,property in joint names,insurance beneficiary,pictures of important events and milestones.things that normal couples do.emails,letters,holiday tickets.

[Obie]

You said:
"The basis of the appeal would have to be that your particular islamic marriage was legal and duly registered in the country where it was contracted."

It was an islamic marriage in the UK.

An Islamic marriage may be considered as evidence that a relationship is Durable, even if it was not recognised in the country in which it was contracted.

I hope the lawyer has explained the prons and cons of application of this type?

[kk2012]

The suggestion to take the islamic marriage as evidence for durability seems a good point,. I'd greatly appreciate any further suggestions for evidence or argument.

[Lucapooka]

The suggestion to take the islamic marriage as evidence for durability seems a good point

I don't entirely agree but I'm not dismissing this. By durability, the guidance is clearly asking for evidence of an interpersonal relationship akin to marriage where the couple have co-habited for a period of not less than two years; it's not asking for a type of marriage that is not recognised and where the couple have spent less than two years together. They may not be prepared to negotiate the requirements.

[kk2012]

We want to do that, but the home office already has his passport since April, since the time of the application.

Therefore, this is not something that we can do before the appeal at court.

We have an appointment to give notice a few days after the appeal is scheduled, which was the earliest possible date in our council, but is it too late now...?

[kk2012]

i cannot find information on this:
today I sent the documentation for the hearing to the hearing centre, was that right, or should it have been sent to the first-tier tribunal in leicester?
the instructions on the notice of hearing were not clearly straightforward, they say to 'above' address, while both addresses are above.

[Obie]

I thought you had a lawyer helping you with the appeal. Yes it has to be sent to Leicester. Hope all your grounds were properly stated.

Make sure you seek plenty of advice and undertake plenty of research if you are doing it yourself, as application from Extended family members are a bit complex at times, especially in cases where their so called 2-years requirements are not met.

[kk2012]

i just called the Tribunal, it was right to send it to the hearing centre.

can you refer me to good internet or other sources of information to prepare for the hearing?

[kk2012]

Could this argument help?

The UK interprets “durable relationshipâ€

[Directive/2004/38/EC]

Was your Islamic marriage done in the UK?

Can you go to your local registry office and get it formally registered as a marriage?

[kk2012]

thanks. unfortunately, it does not seem to go this way round, rather one has to have a civil wedding first, and then also can have that kind of religious wedding.

[Kitty]

But if you have not yet had a wedding that is recognised under UK law, then can you not simply have a civil marriage ceremony?

It's not a case of "registering" your existing marriage, but having a ceremony that is recognised as legal in the country where it takes place.

[kk2012]

Hello,

Believe it or not, we eventually got there! Appeal was won, and big thanks to Obie for suggesting to use the Islamic marriage certificate as evidence of durability of the relationship! Our scary Immigration Advisor was convinced by that and changed the grounds of appeal away from trying a doomed-to-fail argument that this kind of marriage should be accepted like a civil partnership, as comparable to a common law marriage, as having a place in the British tradition, I dont recall exactly, but totally bonkers anyways.

Determination with direction to issue RC was sent a bit more than one month after the appeal, and this month we finally also received the RC.

Luckily, the sceptics in this forum (sometimes harsher than the tribunal judges) are not always right, and 2 years cohabition is not always what a decision hinges upon. After all, the 2-years rule is British and not EU law, which had to be applied in our case.

The evidence that we provided for our 5 year relationship convinced the judge, and in putting that together I followed the superb advice of the UK Lesbian & Gay Immigration Group http://www.uklgig.org.uk/evidence.htm. We won the case and our situation is finally also sorted by paper

[Directive/2004/38/EC]

Very good news! It must have been a lot of work to get there.

[kk2012]

Hi, thanks YES, indeed, it was weeks and weeks of non-stop reading and copying of papers for the bundles, no free weekends.