UKBA alternative proof that absent EEA person was qualified

[Directive/2004/38/EC]

UKBA has responded to a FOI request about whether it will gather information from other departments when a third country national has separated from the EEA citizen, but not divorced:

5. The pragmatic approach will only apply in the following circumstances:
* Where the applicant provides proof that they were the victim of domestic violence (see paragraph 8) and cannot provide evidence relating to their EEA national sponsor’s nationality or treaty rights. To require them to do so in such circumstances could, otherwise put the applicant at risk.
6. The pragmatic approach will NOT apply where there has been a breakdown in the relationship but there is no element of domestic violence involved.

You have enquired as to how the UK Border Agency would respond to directions from the First-Tier or Upper Tribunal to conduct such checks. If UK Border Agency is directed by an Immigration Judge to contact another government department to obtain evidence on the exercise of Treaty rights, the Agency will comply with this in all cases. In such circumstances, however, UKBA would hope and expect that the Tribunal would not make directions where the applicant has not even attempted to obtain this information themselves.

[Obie]

1. Union citizens and their family members shall have the right of residence provided for in
Article 6, as long as they do not become an unreasonable burden on the social assistance system of
the host Member State.
2. Union citizens and their family members shall have the right of residence provided for in
Articles 7, 12 and 13 as long as they meet the conditions set out therein.
In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family
members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these
conditions are fulfilled. This verification shall not be carried out systematically.

Thanks Directive for posting this, i find it very interesting indeed.

So the UKBA has finally admitted they can access these personal information of EEA national. It begs the questions of why they don't do so rather than putting the burden on the estranged spouse or the divorced spouse to get this, which in many cases is near impossible.

We are talking about community law rights here. Is the EU prepared for someone's community right to be infringed by being deported, because they cannot prove something, when it is within the power of the UKBA to ascertain this fact, and prevent the disproportionate interferance with a community law right, or Treaty rights.

This is serious business if it went to the ECJ.

These so called policy, which seems unlawful on the face of them, can be challenged quite easily in my view.

The Directive imposes a specific obligation on the UK to verify in cases where they have doubt or suspicion. The obligation or burden of proof is not on the family member but rather on the authorities of the memberstate, in this case UKBA to establish.

[anp]

We are talking about community law rights here. Is the EU prepared for someone's community right to be infringed by being deported, because they cannot prove something, when it is within the power of the UKBA to ascertain this fact, and prevent the disproportionate interferance with a community law right, or Treaty rights.

This is serious business if it went to the ECJ.

You couldn't have said it better, Obie. Currently, UKBA return or refuse applications when documentation is missing or insufficient. Other times they request you to send it to them. If it was down to UKBA to ascertain the validity of claims without valid documentation, it will then have to be only for cases when a partner has cut all the contact from the other partner. Also perhaps when you lost your payslips, work contract, P60s and they could easily call HMRC.

It will have to be for special cases only though. I don't see it becoming mandatory the other way around. Also, I think UKBA has other more pressing issues to deal with.

[Guerro]

Does it mean that when you send an application with a missing piece of evidence (usually proof of estranged EEA's exercising treaty rights), you should ask UKBA to carry out the checks for you as you can't get the information? And does it mean they have to carry out the checks?

Thanks

[Directive/2004/38/EC]

Does it mean that when you send an application with a missing piece of evidence (usually proof of estranged EEA's exercising treaty rights), you should ask UKBA to carry out the checks for you as you can't get the information? And does it mean they have to carry out the checks?

Did you find the document at all unclear in this area?

[Guerro]

Does it mean that when you send an application with a missing piece of evidence (usually proof of estranged EEA's exercising treaty rights), you should ask UKBA to carry out the checks for you as you can't get the information? And does it mean they have to carry out the checks?

Did you find the document at all unclear in this area?

Thanks Directive, I had a thorough reading once more and found that the applicant can highlight the fact that they tried to contact the estranged spouse to get evidence and they refused. My case should be easier as my ex holds PR card so the UKBA has to contact UKBA to get such a confirmation. I will supply my ex NINO and employer's name and address and that's all I can do. Do you think that should suffice?

Many thanks

[EUsmileWEallsmile]

As your ex-wife had PR already, it should be all rather simple for you.

Don't be afraid to highlight the said policy when you go to make your application.

[Directive/2004/38/EC]

Guerro, Where you a victim of domestic violence?

[Guerro]

Guerro, Where you a victim of domestic violence?

No I am not, but ex will not help at all. she removed me from facebook, skype, email contact and everything. Am I eligible to ask UKBA to carry the checks on my behalf?

[Obie]

I dont believe they will and i think that is quite wrong.

They state that this will be done in exceptional circumstance,which can only be interpreted as cases involving domestic violence.

However the good thing i found from that FOI request is that,if the matter went to FtT and you happen to meet a nice and Xenophilic judge, then you can ask for the proceedings to be adjourned and for a directions to be past in the interest of Justice requiring the SOS to provide the employment records of the EEA national.

[Directive/2004/38/EC]

More analysis here: http://www.freemovement.org.uk/2012/08/ ... nce-cases/

[EUsmileWEallsmile]

In this particular case, the OP's ex-spouse already has a permanent residence card, the UKBA have the information. It would take minimal effort for them to confirm that it was issued.

[Guerro]

In this particular case, the OP's ex-spouse already has a permanent residence card, the UKBA have the information. It would take minimal effort for them to confirm that it was issued.

Exactly, this is the point I am relying on more than employment. I don't have her PR card but only the letter that came with it, should that suffice along aside a covering letter asking UKBA to assist or do I have to go to court and refer to this particular FOI request and Amos VS Sec of State?

[EUsmileWEallsmile]

In this particular case, the OP's ex-spouse already has a permanent residence card, the UKBA have the information. It would take minimal effort for them to confirm that it was issued.

Exactly, this is the point I am relying on more than employment. I don't have her PR card but only the letter that came with it, should that suffice along aside a covering letter asking UKBA to assist or do I have to go to court and refer to this particular FOI request and Amos VS Sec of State?

You won't know for sure until you try. I would suggest that you apply, that you state that your ex-spouse will not co-operate, that you have tried to contact her, that your marriage ended acrimoniously (this is pretty common). Point out that you have evidence that she was an EU citizen with right of permanent residence on divorce and that you present this evidence along with your application.

How old is her permanent residence card? Is it more than two years old? If so, do you have evidence that she's not been absent from the UK for more than two years since it was issued? (You should have this as from your other posts, you only recently divorced).

[Directive/2004/38/EC]

Please let us know what you said in your cover letter and what happened in the end!

[Guerro]

@ EUsmileWEallsmile: she obtained PR in Feb 2011 and I got decree absolute in July 2012, so it is less than 2 years. Do you think I will need a solicitor from now or wait till going to court?

@ Directive/2004/38/EC: I will apply around October or November as I need my passport to sort out some bank accounts

[Obie]

Perhaps the card itself might have been helpful. A letter simply stating your family member has PR, may not be sufficient.

Try your best to make sure everything is done properly to reduce the possibility of a refusal. If in the unfortunate event there is refusal, you can fight your way at the court.

[EUsmileWEallsmile]

Perhaps the card itself might have been helpful. A letter simply stating your family member has PR, may not be sufficient.

Try your best to make sure everything is done properly to reduce the possibility of a refusal. If in the unfortunate event there is refusal, you can fight your way at the court.

While the card might have been better or even better again, a co-operative spouse, the OP's got to work with what he's got.

The PR letter in itself ought to be very strong evidence (and they will have a record of it, no need to go searching other government departments for information). The letter should state name and address of successful applicant, case ID number, nationality, DOB. They will have sight of the EU national's passport in the past, so no need to go looking for that again.

[EUsmileWEallsmile]

@ EUsmileWEallsmile: she obtained PR in Feb 2011 and I got decree absolute in July 2012, so it is less than 2 years. Do you think I will need a solicitor from now or wait till going to court?

@ Directive/2004/38/EC: I will apply around October or November as I need my passport to sort out some bank accounts

Personally, I would be inclined to apply without the help of a solicitor. The application is not that complicated, but that depends on how confident you are with forms.

I'm not sure if you are applying for PR yourself, or an extension of your current documentation.

Be sure to make the application before the two years are up to avoid complicating matters (may require additional proof that she did not leave the UK immediately on receipt and those broken her residence).

[Obie]

The point we are making, is that this department has the details of every EEA national in question and their employment or self- employment activities in the UK. At the click of a button everything can come up. They blatantly refuse to do it. A simple piece of paper is not going to convince them, without ID document.

[EUsmileWEallsmile]

The point we are making, is that this department has the details of every EEA national in question and their employment or self- employment activities in the UK. At the click of a button everything can come up. They blatantly refuse to do it. A simple piece of paper is not going to convince them, without ID document.

In general, I do think it is wrong for a government department to refuse to assist an applicant when they have the power to request information from other government departments. I don't believe it is simple for them as "the click of a button" (I'm sure that was a little tongue-in-cheek anyway). I think it is reasonable that applicants make the effort to obtain the evidence themselves, but that where they cannot, through no fault of their own, that their applications are not simply rejected for that. I don't think it is fair to have applicants requiring court orders to obtain information that would help them prove their case when they have made the effort or have no other means of proving it.

That all said, for the OP, he appears to have a document, issued by the UKBA that proves his case. It is strong evidence. I hope it will be successful. He won't know until he tries.

Now, regarding ID documents this case may be of interest (I don't know if it is binding on UKBA or not).
http://www.bailii.org/uk/cases/UKUT/IAC ... maica.html

[Guerro]

Hello everyone,

I will apply for ROR within a couple of weeks and I need your help with the covering letter at the moment. I will mention Amos VS Sec Of State, I will inform UKBA that the marriage ended acronimously and the estranged spouse is not willing to help, I will request UKBA to check their system as she is a PR holder or check with HMRC or my ex's employer.

Summary of my case:
Married august 2008.
I came to the uk in feb 2009
Have been together in the same house since that date till Oct 2011.
Ex wife issued with pr card in feb 2011. She has been working for the same employer for the last 6 years till moment.
Divorce proceedings started in Jan 2012
Decree absolute July 2012

Is there any particular article or law to mention? any relevant case or something to enhance my application beside Amos and requests to check?

Thanks