EEA FP Refusal on flimsy grounds - Appeal or Reapply

[vjvj]

I have been granted EEA FP on the two prior occasions. However just yesterday I received a "refusal of EEA Family Permit" decision in response to my latest application.

Background:

My wife is from Estonia and I am a non-EEA national. We have 2 children together and have been married for 6 years.

We all travelled to the UK for 5 days in April. We all travelled together & returned together.
We travelled to the UK again in September and stayed there for 6 weeks.
We both opened a joint bank account in the UK and applied for and received our NI numbers and also got a comprehensive health insurance policy. We were planning to stay for long but decided not to and came back.

Now we were planning to go to the UK again for 2 weeks in December but my application has been refused.

"EEA national works full time in Latvia. Under Latvian employment legislation, twenty days leave is allowed per year. Given this and the satisfactory information to show otherwise, I am not satisfied that the EEA national has previously stayed in the UK with you. On balance I consider it is more likely than not that an EEA Family Permit facilitates your personal admission to the UK. I am therefore not satisfied that your statements in the VISA application are accurate".

Well on both occasions we are my wife travelled together, we have airlines tickets to prove that. Also we opened a joint bank account which could not have been done if my wife was not there. She got her NI number which also could not have been done if she was not there personally. We have photos to prove we were both there together also.

Now should I simply re-apply or file an appeal ?

In 2009 when I was previously refused an EEA FP, alleging marriage of convenience (and how wrong they were as we are still together and have had 2 kids since) - the decision stated that "this decision will not have any bearing on future applications". But this time the rejection letter does not say that.

Does this mean that I must appeal this decision or it will be held against me forever?

How long does the appeal process take?

Please enlighten ..... I shall be very thankful

[EUspouse82]

You will have to give further details of why you were denied the visa because the reason you posted doesnt make sense at all.

As the spouse of an EU citizen, you are not required to provide any evidence of employment if you are simply travelling to the UK together (Unless in relation to Surinder cases). All you are mandated to provide are:

1. Your spouse's passport and your own or any accepted evidence to identify yourselves
2. Evidence of relationship i.e Marriage Certificate
3. Confirmation that you would be travelling together or joining your spouse.

Any additional documentation is just an addendum to solidify your application.

Unless there are particular details you might have omitted, your refusal is illegal and you should appeal it, make use of the EU Solvit facility and write a strong worded letter stating that you are being wrongfully denied your right to travel with your family.

[Jambo]

It would quicker to re-apply. You should address the reason for refusal in a cover letter and provide evidence to show the IO accusations were wrong (I would just provide the flight tickets as evidence you travelled together. Leave out the NI, bank account).

[vjvj]

It would quicker to re-apply. You should address the reason for refusal in a cover letter and provide evidence to show the IO accusations were wrong (I would just provide the flight tickets as evidence you travelled together. Leave out the NI, bank account).

Thanks for the reply.

If I do not appeal this decision will not be held against me ?
as this time the rejection letter does not say if that this decision will not impact any future application .. which I think used to be the standard wording before.

Also looks like we will not be going in December now anyways and we have plenty of time now. So do you still think reapplying will be better option than appealing. I hate those rejection stamps on my passport

Thanks so much for sharing your expert opinion ...

[vjvj]

You will have to give further details of why you were denied the visa because the reason you posted doesnt make sense at all.
.

Hi EUspouse82 ... thanks for getting back ..

So the full text of the decision is :

"You have previously been granted EEA Family Permit. According to your current application you intend to travel to the UK for 2 weeks for business meetings & to see friends. At part 4 of the visa application form you have stated that the EEA national will be accompanying you.

Your previous travel to the UK provides some important background to your current application. In your application for an EEA Family Permit (submitted in March 2012) you stated that you intended an 8 day holiday with the EEA national in the UK. Records show you recently travelled to the UK on 01/09/2012. you returned some five weeks later on 12/10/2012.

The information before me clearly shows that the EEA national works full time in Latvia. Under Latvian employment legislation, twenty days leave is allowed per year. Given this and the satisfactory information to show otherwise, I am not satisfied that the EEA national has previously stayed in the UK with you. On balance I consider it is more likely than not that an EEA Family Permit facilitates your personal admi/ssion to the UK. I am therefore not satisfied that your statements in the/ VISA application are accurate.


Basd on information before me I am not satisfied that you meet all the requirements of Regulation 12 of the Immigration (EEA) Regulation 2006. I have therefore refused your application. SHould you wish to travel to the UK independently, you may wish to consider an application for entry clearance in an immigration category that fully meets your circumstances and intentions"

... and thats it .... Is this insane or what ?
I think the UKBA are doing everything they can possibly to curtain the free movement right. This decision does not make sense because the ECO has reached a conclusion which is ridiclous.

1. The Latvian legislation says the maximum paid holidays are 20 working days. There is bar on unpaid leave.

2. My wife works for a company owned by me and we trade with the UK and buy most of our supplies from the UK, so she could have been on a business trip.

3. There is no bar on an employer willingly giving holidays to their employee.

This decision makes a total mockery of the EU treaty. What do you guys think ?

[keffers]

It appears that the ECO believes you are applying for a Family Permit to travel to the UK alone or not be accompanied by your wife while in the UK.

The basis is that the time you have spent in the UK does not accord with the annual leave available to your wife and therefore the information you have given in your application is not true.

Solution: Provide evidence that your wife did apply for and was granted leave (paid/unpaid) from her employer (or she was off work sick etc) for the dates you have stated she was with you in the UK.

Posts crossed.

Were they aware of the employment relationship?

[Jambo]

I've seen that on one of the training slides about EEA Family Permit (this was obtained using FOI request) the HO gives as an example to suspect an application that the EEA national is taking longer than normal holiday. I agree it is ridiculous and the ECO should have at least contact you if he had questions.

The decision will not held against you for future application but I suggest you address it now as the record would likely mean extra examination of your future application. You can still make it for December. Complain to the visa section manager. Explain that their decision affects your travel. If they want, the consulate can issue the visa in a very short time.

.

[Directive/2004/38/EC]

vjvj,

Were the dates them mention in the refusal based on dates you provided in either this or previous applications? Or do they come from another unknown source? Do they match the actual dates of travel of your trip?

[vjvj]

vjvj,

Were the dates them mention in the refusal based on dates you provided in either this or previous applications? Or do they come from another unknown source? Do they match the actual dates of travel of your trip?

Hey There,

I think they checked the dates on the basis on entry-exit stamps on my passport also I provided those dates in the "previous visits to the UK" section in the application form.
If they would have checked the dates themselves, they would have known that my wife indeed travelled with me.
So just guessing .. but there seems to be no other explanation.

[vjvj]

for future travel to the UK:
what if me and my EEA wife travel to the UK together and she comes back after 2 weeks and I stay on for one more week before travelling back.

Would that in some way be in breach of the EEA Directive ??

So can you stay a bit longer than your EEA partner or is it obligatory that you return along with your EEA partner and not spend even 1 day alone in the UK ??

[onlineamiga]

Seeing as there is no border exit control in the UK. I doub't they'd even know.

My wife crosses into the UK Territory of Gibraltar often, but in order for her to cross I have to be present with her. We dont need an EEA Family permit for this, as they actually compliat with EU law and recognise her eu residence card. But the principles are the same.

The Gibraltar/Spain land border is rather small, and the Immigration Officers watch me cross her in, then turn round and leave Gibraltar again. They've never challenged me on this

[Directive/2004/38/EC]

The application can only be refused for three reasons: national security (does not apply here), public health (does not apply), and public policy.

The public policy refusal, like the others, has a high badness requirement. So if the family member was a serial killer and did not look like they had stopped killing, then the family permit could be refused on the grounds of public policy. But if the person had previously entered the UK illegally, or had been arrested for swearing at a policeman, then that is definitely not reason to refuse the permit.

So even if UKBA thought your prior travel to the UK was irregular, that is no grounds for them to refuse a new EEA Family Permit. And from the sounds of it, you were likely within the letter of the law.

[keffers]

Given that part of the application is a signed declaration stating that the form has been filled in honestly, I would say that to lie or misrepresent the true circumstances of a visit is enough to refuse a permit regardless of the 'rights' conferred by any directive.

The Directive assumes that the truth is being told.

Is there anything on the form which could be taken (or mistaken) to mean your spouse will accompany you at all times? (as it appears that is not your intention?)

[vjvj]

Given that part of the application is a signed declaration stating that the form has been filled in honestly, I would say that to lie or misrepresent the true circumstances of a visit is enough to refuse a permit regardless of the 'rights' conferred by any directive.

The Directive assumes that the truth is being told.

Is there anything on the form which could be taken (or mistaken) to mean your spouse will accompany you at all times? (as it appears that is not your intention?)

Well the form asks if you will be travelling with your EEA family member and so the answer is YES.
Travelling together and staying together for the whole duration of the trip are two seperate matters I thinks. We go to the UK together and then my wifes comes back after 2 weeks but I need to stay a week longer .. that would still be catagorised as travelling together .. wouldn't it ?

... so what do you think ?

[vjvj]

The application can only be refused for three reasons: national security (does not apply here), public health (does not apply), and public policy.

The public policy refusal, like the others, has a high badness requirement. So if the family member was a serial killer and did not look like they had stopped killing, then the family permit could be refused on the grounds of public policy. But if the person had previously entered the UK illegally, or had been arrested for swearing at a policeman, then that is definitely not reason to refuse the permit.

So even if UKBA thought your prior travel to the UK was irregular, that is no grounds for them to refuse a new EEA Family Permit. And from the sounds of it, you were likely within the letter of the law.

I think they are doing their best to turn down EEA applications on whatever reason they can come up with, we did indeed travel together but I did not include proof of that travel because I thought there was no need for it