Post
by Obie » Tue Mar 26, 2013 9:53 pm
It will all boil down to whether the Secretary of State is able to provide valid reason for needing to see the ID, other than simply refusing it because no ID was produced. Such was the case with the Respondent in that appeal.
The case did not establish that the ID of the EEA national is not required, but states that in some circumstances, it may be unnecessary, and in all cases, valid resons has to be given by the Secretary of State as to the reason why it is needed, failure to do so, will render the refusal unlawful.
However if valid reasons are given, the refusal may well be lawful.
I am prepared to agree the OP's case can be assimilated to that of the appeallant in that case, but there may be circumstances were the ID card produced on previous application is at present not valid, in those circumstance, there may be a requirement to produce a current valid ID. There is also a possibility that the ID supplied may not be valid for ID purpose, or that the EEA national's country does not support dual citizenship, and there is a reason to believe the EEA national might have lost their EEA nationality as a result of acquiring that nationality. Also, subsequent checks after the Residence Card was issued might have indicated that the ID is fraudulent.
I believe this is the reason why the new Regulation 29A was effected.
I have witnessed several case where UKBA gave reasons for requiring this evidence, and the Tribunal seem to be limiting the scope of Barnett, by stating it is confine to its own fact, and that no two cases or circumstances are the same.
Giving the time wasting and the cost that may be incurred on applicant and potential appeallant, i believe if the relationship has irretrievably broken down, and the sponsor is refusing to assist the non-EEA national, then getting a divorce may save lots of time and heartache.
That is a great case you cited, but it is not helping as much as i had thought it will, when it was first promulgated.
It would have helped if the Tribunal had come out outrightly and say this is not required for Permanent Resident, therefore it is not a valid requirement for issuance of same. Unfortunately this is not what was said, and the UKBA are providing flawed reasons in many cases i have seen where the couple are seperated, and refusing to issue a document.
In an outrageous case i saw recently, they even refused a right of appeal, on the basis that the ID of the EEA national was not provided. It took the threat of Judicial Review challenge for them to change their position.
Smooth seas do not make skilful sailors
