Residence Card REFUSED - help needed to APPEAL

[Josh2012]

Hi all,

Thanks in advance for any advice you can offer. I am a 27 year old American who has been living here in London with my partner, who is a French citizen, for the past four years. I am currently on a Tier 2 work visa that expires on Jan 30th 2012, and because I no longer want to work there (a secondary school), we decided to apply for a Residence Card as unmarried partners over two months ago.

Yesterday, we received a notice from the UKBA informing us that we have been refused on the basis of insufficient evidence. We submitted several documents showing that we have been living in the same residences over the last three and half years. The problem, we assume, is that the tenancy agreements for our first two flats (2008-2011) was in only one of our names. We submitted various documents (such as NHS cards, bank statements) showing that we both were residing in the property, as well as a letter explaining our circumstances, but it was apparently not enough.

Now, we have to appeal and we are unsure about what would be the best way to ensure that we are successful. I don't want to appeal without representation, but every solicitor is charging upwards of 2000 pounds to handle our case. We have considered civil partnership but want to make sure that we've done everything we can to gain the Residence Card first.

I have a few questions as to the best way to go about this:

1. Do we have to pay a fee? I read in another forum that EEA appeals aren't required to pay a fee.
2. Will not hiring a solicitor drastically effect our chances of a successful appeal?
3. The notice says that we are entitled to appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 and Regulation 26 of the Immigration (EEA) Regulations 2006. We feel that the decision of 'insufficient evidence to prove that you are in a durable relationship' is inaccurate as we have provided documentation covering more than a 3 year period. What grounds should we appeal?
- the decision is not in accordance with immigration rules
- the decision is unlawful because it racially discriminates against you
- the decision breaches rights which you have as a member of an EEA National's family under Community Treaties relating to entry to or residence in the United Kingdom (I assume this one??)
- a discretion under the immigration rules should be exercised differently
- the decision is otherwise not in accordance with the law

4. Is an Oral Hearing better than a paper hearing? (Again, I'm assuming so - could anyone describe the process of an Oral Hearing?)

We will ask our landlord/agent to write a letter confirming that we have lived in the same properties and paid the rent from separate accounts, despite only one name being on the tenancy agreement.
I'm not sure what other evidence we can provide - emails? other testimonies?

I am really worried and in need of guidance. Anything you can tell me to direct me in the right direction would be greatly appreciated.

Josh

[Obie]

£2000 seems a lot for a an EEA case.

You do not have to pay for the appeal, as your appeal falls into one of the exempt category.

You can go for a Public access Barrister who is much cheaper, and will only argue your case in court, whiles you will only need to put the appeal through.

I believe you are better of going for an Oral hearing.

The basis for the appeal should be, the decision breaches your right under the EC treaty, as a family member of an EEA national.

The decision seem to be wrong as you certainly have been together for two year, and there is no issue like criminal history or poor immigration history, why discretion under Regulation 17(4b) should not be exercised in your favour.

[Josh2012]

Thanks for responding so quickly. You've confirmed much of what I was assuming.

Would I be able to choose the Public Access Barrister? If so, how do I go about that?

Are there any organisations that can assist/advise me for free?

In my appeal, will it be necessary to include quotes from the EC treaty and so forth to support my arguments?

I am fairly confident that I have every right to obtain a Residence Card, what I am concerned about is whether I will be able to present my case in way that it is indisputably clear.

If there is any advice you can give in regard to preparing my appeal it would really help.

Thanks again.

[nonspecifics]

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

The above publication is worth a read, though it may be out of date in some sections.

UKBA seem to be very suspicious when those in relationships apply when the non-EEA has a visa of another type that is running out or they are an overstayer. That seems to ring alarm bells that it's perhaps a relationship of convenience. They may then raise the bar on the level of evidence required to satisfy them that there is a durable relationship.

Let me stress that I am not accusing you of that. I am suggesting that is possibly why UKBA may have WRONGLY refused residence cards in lots of cases.

I also suggest you read some of the case law from previous determinations to get a feel of how judges look at evidence.

Did you provide evidence of a love relationship apart from a shared address? Lots of photos, old love letters, your home-made videos and evidence of shared finances etc ?

It seems you proved the EEA national is exercising treaty rights.

If you worked as a teacher and your colleagues or bosses knew your partner they could maybe write a reference confirming that you are a couple - as they work in a professional capacity, it might carry more weight.

As you know UKBA have a nasty habit of giving vague and generalised reasons for refusal.

I could bet you looked at the Reason for Refusal letter and thought along the lines:

What evidence is lacking? What evidence do you want? Why are you saying that?

They don't tell you, so it's guessing games time.

Thus, I would advise you to prove your case from scratch to a tribunal. Don't assume you know what evidence UKBA wanted first time around.

Just prove you meet the criteria as a family member based on durable relationship with as much evidence as possible covering every aspect of your case including proving again that the EEA national is also exercising treaty rights. Include everything you can to prove your history together as a couple - not just roommates.

[seputus]

Josh, I think the others have figured out what the problem was - but I'd like to emphasize it.

The evidence you submitted seems only good enough if you were simply trying to prove residence and treaty rights. This is fine when you're applying as a bona-fide family member of an EU national, as the EU regulations give the UK almost no power to determine the legitimacy of your relationship. i.e. - if you prove you're married/civil partnershipped, then that's really the end of the investigation.

With a 'durable relationship' they have every right to poke into your life to see if the relationship really is what you claim it to be. This is where photos of you and your boyfriend on vacation, emails, phone records, letters supporting the fact of you being in a relationship from your other friends/family, etc. all come into play.

Having said all that, my AMATEUR advice is to tell you to NOT appeal. Assuming you did not provide enough evidence, then the UKBA has not breached your rights and so an appeal would not be the correct avenue to take. An appeal is where the UKBA have made a wrong decision - which wouldn't seem to be the case.

Instead, simply reapply with a fresh application and include as much evidence of your relationship as possible. Easy

Though I do hope someone like Mr. Directive comes along to validate my assertions.

[Josh2012]

Major thanks for the advice - very, very helpful.

I actually hadn't considered the refusal from that angle. Perhaps where we went wrong was not supplying enough evidence of a 'durable relationship akin to a marriage'. We only sent a few pictures and a cover letter explaining our circumstances.

You've both given me some good ideas about what kind of evidence we need to support that our relationship is non-platonic and committed as opposed to merely flatmates. I can get my employer of the last four years to write a reference, as well as family members and friends. I have journal entires that pretty much trace our entire relationship, and it shouldn't be a problem collecting more photos, emails and letters.

I have a few more questions that maybe you guys can help me with.

First, would it be better to represent ourselves at the tribunal? Some of the fees I have come across for solicitors are extortionate, but would it increase our chances if we are represented? Maybe it would be more effective if we spoke for ourselves?

Also, do we need to provide them with the evidence we will be presenting prior to the tribunal? (For instance, would I need to send off my journals, photo albums, etc?) The appeal form says not to send original documents (passports, etc) but does say to send 'any other documents to support your appeal'.

Second, as an extra precaution I am going to try to renew my work visa through the school. I hadn't considered that it might look suspicious that my current visa is expiring, but I guess I can understand how it might be misinterpreted as a 'relationship of convenience' - particularly as a same-sex couple. If my work visa is renewed, will that effect the appeal process in any way? For instance, if the appeal is successful, would my status change automatically? I really don't want to work at the school another year and that is why we decided to go for the Residence Card.

Third, seputus suggested that we put in a fresh application. Is that a better approach than appealing? How may times can you apply and would having a second application for the same visa not be suspect? We can't explain our evidence with a fresh application and my current visa will definitely be expired by the time the application is processed. If the appeal isn't successful, can't we appeal that decision to the Upper Tribunal?

I know it's a lot of questions, but whatever advice you can offer is greatly appreciated. I'm hoping we can sort this out on our own by just being informing and understanding our options.

Many thanks,

Josh

[nonspecifics]

Personally, I would choose to continue with the appeal.

The reasons for this are:

I think that a residence card on the basis of durable relationship comes under the discretionary extended family members section of the regulations, so that makes it easier for UKBA to refuse it. Though, they must fully examine your circumstances and justify a refusal.

It's too easy on EEA2 just for them to send the Reason for Refusal letter and not justify it.

They have refused one application. Who's to say the won't just do the same again.

If you do decide on appeal: DO NOT RELY ON UKBA ORGANISING THE APPEAL PAPERWORK FOR YOU.

UKBA will want to prove to the tribunal they made the right decision first time around, so do you think they will present the evidence in a way that supports your case?

Furthermore, you have listed lots of supporting evidence that was not presented during your EEA2 application - now's the time to get to work copying all the extra supporting evidence and send all the copies to the tribunal.

In your appeal letter explain they are copies, but you have all the originals that you will be able to present to the tribunal.


I would also highlight that you have been living in the UK legally, working and paying your taxes, obeying the immigration laws. Thus, you are not a chancer playing the system. You are an honest and credible applicant.


Statistics, for all tribunals ( not just EEA) showed oral hearings had the highest success rate. If you are used to public speaking and can organise paperwork, then I don't see any reason why you would need a solicitor to represent you.

If you were battling to change an interpretation of law in a grey area, then that would be the time for a solicitor.

Anyway, that's my thoughts on it. It's your decision.

[DestinyChild]

Josh 2012, It is better you go for the Oral Appeal. Oral Appeals have a higher success rate because the Judge gets to hear you out. He is also able to ask you questions that he might not have been able to ask if you do a paper appeal. The questions a Tribunal Judge asks might bolster your appeal positively if you answer them well. I have gone through a successful appeal so I know what I am saying. Get all the new supporting evidence you can lay your hands on and write a good statement with the help of your solicitor. The way things are, I believe you will win the appeal. Just have confidence and if you're a religious person, chip in some Prayers.

I wish you the best. I'm waiting to hear the good news. Cheers.

[John]

Yesterday, we received a notice from the UKBA informing us that we have been refused on the basis of insufficient evidence.

Just for the record I am going to ask .... insufficient evidence of what? What does the rejection letter actually say?

That is, it is possible that they are happy with the evidence of a durable relationship, but feel you have failed to provide proof that your French Citizen Partner is exercising Treaty Rights in the UK. That would also lead to rejection of the Residence Card application.

[Josh2012]

Thanks DestinyChild for the kind words. We are definitely going to do an Oral Appeal. We are going to bring our photo album with pics from all of our trips, my journals and emails we've written to one another over the past four years. We're meeting with a solicitor on Tuesday but only for fifteen minutes - she wants to charge £75 per half hour. No can do. Not sure how much help that will be, but I'm certainly getting some useful information from these boards.

John,
the REASONS FOR REFUSAL LETTER states:

'You have applied as the unmarried partner of an EEA national...

In support of your application, you submitted several letters, bills and bank statements. Several of these are in joint names, however, the majority are from 2011 and late 2010, from within one year of your application date.

You have submitted insufficient evidence that you have been living with your partner in a relationship akin to marriage for a significant period of time. There are no additional, extenuating circumstances.

Therefore, it has been decided to refuse to issue the confirmation that you seek with reference to Regulation 8 (5) of the Immigration (European Economic Area) Regulations 2006.'

The letter goes on to list the documents that have been considered, but leaves out the tenancy agreement from 2008-2010 that is in my name. We provided the tax returns, bank statements and NHS cards of my partner with the address of the flat on them to show that he was living there for the duration of the lease. I don't know why they didn't list this because those two years would most certainly demonstrate the required period of time.

For the appeal, we will submit emails from our landlord and agent addressed to both myself and Tom (my partner) discussing issues concerning the flat. I also found the email we sent giving our two months notice and our landlord responded to it with both of our names.

The more I'm preparing for this appeal, the more confident I'm becoming. However, I was pretty sure the first time that it would go through so I think I'll be somewhat anxious until this is all over.

Is it necessary to reference parts of the Acts and Regulations that have been breached?

Again, many thanks

Josh

[DestinyChild]

Josh 2012, when is your appeal taking place? I wonder why the Solicitors you've approached are charging so much money ( £2000) for an appeal. You need to go to the Oral Appeal with Barrister. Many Solicitors often hire Barristers to represent their clients during appeal processes. Some Solicitors are not entitled to be at Appeal Hearings. You might need to look for a Cheaper Solicitor in your area. I know a Solicitor you can use in London. He is good when it comes to Immigration Cases like yours. He represented me and my co-defendant during our Appeal. PM me for more information if you want to use my Solicitor. I think he will charge you less for the Appeal. All the best. Cheers.

[nonspecifics]

Just for extra information.

In the tribunal system the party who raises the appeal is called the appellant.

The other party who responds to the appeal to defend the current decision is the respondent.

[seputus]

Hi Josh,

I'm still not convinced an appeal is the right route since the UKBA don't seem to have incorrectly made a decision.

e.g. to take this to the extreme, if you submitted all required evidence, but left out your passports and they refused you, an appeal should not be accepted since the UKBA was right to refuse you.

However I know from reading these forums that there are gray areas where the UKBA decide favorably in error (accepting CSI retrospectively for PR) and decide against you in error (requiring CSI for a student who has also worked continuously for 5 years) .. so it's a very stressful crap shoot sometimes!

To answer your questions, you can apply as many times as you want. You could still explain your evidence fully if you reapplied, simply with a cover letter. I did that as a precaution with my initial application as it involved 3 passports with a name change in the middle and I didn't want them to get confused lol...

The issue about your current visa expiring is the most concerning, as if you were actually CPd, you'd definitely have an automatic right to stay here regardless if you were applying or appealing or even not even bothering to contact the UKBA at all. I don't know how it works for a durable relationship. I'm fairly certain, even if an application was submitted, that the Certificate of Application you receive if it was accepted does not even give you the right to work until such time that they're satisfied your relationship to the EEA national is genuine.

I know nonspecifics said what's to stop them from refusing you a second time, but my answer would simply be "providing the right evidence". This is further backed up from your most recent post, where the info is provided that UKBA refused you as the majority of your evidence of a relationship was only within 1 year from your application date.


From the UKBA handbook - chapter 5


Durable Partners
The following conditions should normally be satisfied:
 The parties have been living together in a relationship akin to marriage which
has subsisted for two years or more.
 The parties intend to live together permanently.
 The parties are not involved in a consanguineous relationship with one
another (i.e. they are not blood relatives who would not be allowed to marry
as this would constitute incest).
 Any previous marriage (or similar relationship) by either party has
permanently broken down.

Also relevant is this bit, which is saying that even if your appeal is accepted, you may still end up being removed and have to appeal from America:

Current legal advice is that an appeal against a refusal of a residence card in such
circumstances is not a suspensive appeal right under the EEA Regulations. This
means in practice that removal directions may be maintained and the applicant
removed. The applicant may then exercise his/her right of appeal from overseas.

Having said ALL this ... I think the safest thing would be for you to try to renew your existing visa as a precautionary measure. I don't believe this would work against you, and if your appeal is accepted and you win, this doesn't have a negative affect at all - as you would then be able to legally do almost anything in the UK that an EEA citizen could do.

Also, upon reading about "durable relationships" a bit more, I actually don't see any text that necessitates providing details like photos, emails, etc. The ECIS states that the evidence is similar to that which the UK Immigration Rules require for unmarried partners wanting to stay based upon their relationship with a UK citizen. These are viewed here:
http://www.ukba.homeoffice.gov.uk/polic ... xpartners/

... In which case, since you did provide a combination of evidence that shows co-habitation for over 2 years, it's very possible the UKBA was actually wrong in denying you and so an appeal is the right route.

When I applied, I also had a mix of evidence (over 5 years, as I was applying for permanent resience) and so I broke each period and category down for them in the most basic way possible. e.g.

"Co-habitation/Residence for 2010 - proof being 12 bank statements in my name at (Address1) and a lease in my partner's name for the same address".

"EEA Treaty rights for 2006 - proof shown of WRS certificate and letter, and P60"

etc...

and so it's possible if you didn't break this down for them that they carelessly overlooked the lease + bank statements you provided and incorrectly refused your application.

Whichever route you take, I wish you the best of luck!

[nonspecifics]

Good points by Seputus.

I wholeheartedly agree with the advice of Seputus regarding how to present your evidence.

Some money and time spent on dividers and plastic pockets and clear labels, separating the information into logical and easily understandable sections, is a wise investment in time and money.


Even on this forum, it is so hard to follow the detail in a posting when it's given as one big paragraph.

How much more confusing it must be if several years of documents were dumped on your desk in one big lump.

I have to admit, I am a bit cynical regarding the belief that if a person clearly proves their case to UKBA they will be provided with their documentation. This forum is full of complaints about UKBA not providing documents to people who have proved they are entitled to them.

It seems to be a bit of a lottery, some do get their documents easily enough, others don't.

[Josh2012]

To everyone who has offered advice, my sincerest thanks. You all have given me a lot to consideration and it is really helping me refine how I'm going to approach this.

Seputus, I go back to work tomorrow (have been on X-mas break for the past two weeks) and will inform my Head about what's going on. If I can get my work visa extended this week, I will be able to breathe a hugh sigh of relief.

Some of what you said does make me a bit uneasy though, especially the part about the UKBA being able to have me appeal to the Upper Tribunal from the States. Still, I think we will go forward with the appeal and as you said, make sure everything is set out so that it doesn't take any discernment on their part to make an affirmative judgement of our durable relationship and cohabitation over the last four years.

Some of the evidence of our non-platonic relationship is quite personal (and admittedly a tad embarrassing) so I think we'll save the photos and love letters for Tribunal. The main thing is proving the cohabitation, which with the additional evidence and in-person explanation should be more than enough.

With that said, as nonspecifics pointed out, it seems to be a bit of a lottery. I don't think I'll get a good night of sleep until this is all sorted.

Tomorrow evening I will write the appeal and send it off on Wednesday. If you guys have time, would you be able to look over it and give me some feedback if I posted it here? I'm wondering how much reference to the law is necessary to write a strong appeal.

I'll be sure to keep you all posted on how this is going. Again, thanks for all the kind words and useful information.

Josh

[Josh2012]

Hey guys, I'm submitting tomorrow. Will check back to see if there's anything you think I should add.


Re: Response to #8 (Non-Asylum Decision) of IAFT-1 form

Dear Sirs

I am appealing to the decision to refuse to issue me a Residence Card as it breaches my rights as a family member of an EEA national – Regulation 8(5). This decision is certainly unjust as we have provided credible evidence that we have been living together in a durable relationship akin to marriage for more than the required two years. As he is exercising his EC treaty rights and I have been legally working (as a secondary teacher) and paying taxes in this country for nearly four years, Regulation 17(4b) should be applied in our favour.

The refusal letter states that we have submitted ‘insufficient evidence’ because ‘the majority are from 2011 and late 2010, from within one year of your application date.’ However, the tenancy agreement for our first flat (39 West Lane), where we lived for two years, is not listed under the documents that have been taken into consideration. Therefore, this error has proved to be exceptionally detrimental to our application being processed on valid terms.

To ensure that we have satisfied the conditions necessary to be regarded as a durable relationship, we are submitting several personal emails and a letter of reference from my employer.

In addition to this, the documentation for each residence we have cohabitated over the past three and a half years has been separated into labelled sleeves, so that the progression of our joint tenancy is apparent. Though our first two flats were only in one of our names, various documents have been provided to show that we both occupied the residences for the duration of the leases.

It is my sincere hope that upon reviewing our case that an affirmative decision is reached. We look forward to continuing our relationship here in England as responsible, contributory citizens.

Yours faithfully,

[sikaba]

what came out of the appeal,any update please

[toni34]

The UKBA wants you to prove your relationship as a "matter of fact".meaning you have to convince them.It is easy to do,they want to see evidence of your cohabition together,eg,letters to each other,life insurance,wills,even evidence of trips together,email,facebook msgs,now emails and facebook msgs with dates are very good,I know cause i used it and I was granted my eea2 as an unmarried partner even though then i was already illegal.

[bella3579]

Could you let me know what happened with your case, please? I am in a very similar situation now and have until Wednesday of this week to make a decision