REFUSED RC: NO RIGHT OF APPEAL

[Directive/2004/38/EC]

Interesting case. As you are married to an EU citizen, you have a right to work presently in the UK, even if UKBA refuses to issue you a Residence Card.

Do not let it interfere with the JR, but you might want to consider asking UKBA for the passport back and then applying for a renewal of the passport. Your lawyer can ask UKBA to contact your embassy and let them know that you have a unlimited right to remain in the UK with your EU spouse.

[Juss]

Thanks Directive.


Basically this is really very interesting as Ho did not give me right of appeal. As i was entitle of this. This is what all the lawyers are telling me to Challenge this decision.

Pakisanti High Commission will not renew my passport without valid Visa.

My question is basically how long will it take as my grounds of appeal were sent to High court on 07, May.
How long will it take for hearing date. Its oral hearing.

Thanks for all experienced people sitting here and helping all who are in distress.

[Obie]

Well i will be careful in your circumstances. There are three issues here , 2 of which is clearly in your favour. The other one is not, given the wording of the directive and the regulations, as well as the ruling of the tribunal.

1. Whether you have a Right of Residence Under regulation 14(2)

2. Whether you have a right to Confirmation of this right of residence.

3. Whether or not you have a right of appeal.

Point one and 3 are in your favour, point 2 is not. The directive and the EEA regulations, require a valid passport for a Residence Card to be issued.

In HB (EEA right to reside - Metock) Algeria [2008] UKAIT 00069 paragraph 42-43, the tribunal ruled that the fact that a person has right of residence under Regulation 14(2), does not give them a right of confirmation of this right, without a passport. Therefore a Judicial review claim that you were entitled to a residence card, may be doomed to fail.

However a challenge on the fact that you have a right of appeal, is more likely to succeed. If the UKBA was seeking to remove you on the basis that you have no right of residence, then point one will be very strong, as you do have a right of residence under regulation 14(2), but you do not have a right to a confirmation, by virtue of issuance of Residence Card, as you have not produced a Valid passport.

Whether or not, the court will find the approach of the UKBA in regards to point 2 as unreasonable in light of your circumstance, is yet to be seen. But it cannot be described as illegal, as no valid passport.

[Directive/2004/38/EC]

Your lawyer will have the best sense of how long it will take. People here are less likely to. JR is not so common.

Pakisanti High Commission will not renew my passport without valid Visa.

That is what they tell you. Nigeria says the same thing. But the reality is different. They very likely will do it if UKBA confirms that you do not need a visa to remain in the UK. The RC is, after all, optional in the UK.

[Juss]

Thanks OBIE and Directive


I know mine case is nearly Niagara. Difference is that he entered Uk illegally. And other difference is that he was spouse of british and i am spouse of EEA.
So i hope that it will be not difficult case.

I have a question to all off expert for your valuable advice.

I dont have a right of appeal. AM I ALLOWED TO WORK.

Allah may help all of us who are in trouble.

[Obie]

Well british citizens who resided in another memberstate and return to the UK again, havibg worked or was self employed in another memberstate has similar rights as a Bulgarian national to bring their spouse to the UK .

That is not the point I was making

Paragraph 43-45 has general application . It is interpretation of Article 10 of directive 2004/38EC and Regulation 17 (1) of the EEA regulation 2006.

It states quite clearly, that it is an error of law for the tribunal to find that a person who did not submit a valid passport to the Secretary of State is entitled to a residence card.

This is no prejudice to the fact that the person may nevertheless have a right of residence under regulation 14 (2).

I will challenge anyone, that you do have a right to work, and a right of appeal, but a right to Residence card, without a valid passport, is not something you are entitled to, except of course the circumstance of you case means you ought to be exempted. That will surely be at the discretion of the memberstate.

The question of illegal entry had no impact on the ruling, as this was found in favour of HB, in the light of the Metock ruling.

I do hope, you are able to obtain public funding for this,; as you may have to pay homeoffice their cost, if you are privately funded. I have full cobfidence on the appeals right, but not on the Residence card point.

[EEA2]

hi! I came here as a student in 2005 and was refused a visa in 2009 because not enough funds on my account. I lost the appeal. And after was leaving here illegally. Than I met my future wife in 2010 after leaving together for about 2 years we got married and applied for RC. my passport was 2 month expired at the time. I got COA after couple of month and refusal letter after 11 month. My solicitor said he will win the case because I couldn't make a new passport in UK because of no visa. But my wife contacted 100 layers everyone saying I have no chance to win. I don't know what to do and what to expect.
What do you think Juss and other guys on this forum do I have a chance? or its just waste of time???

Thank you very much Obie and Directive. Your impact on this forum is unbelievable. I spoke to so many solicitors , no one could give me a proper and clear answer as you did.
Now I have a question , as I think my chances to win the appeal is very low. And the only way to make a new passport is to go home. But I don't want to be stack there while my wife is here( she can't go with me because of work) Now the question is how long will it take in my case to get FP???
Thanks in advice anyone who can help.

[Juss]

Hi EEA

Dont worry about all this basically i spoke to many lawyers they told me that this decision is changeable.

OBIE and Directive have a deep knowledge of these rules.
I hope that we are in strong position yes it will take time. We dont need to leave UK bc of this silly reason.

In my case HO did not give be right of appeal and Case worker didnot justified this as well that why i didnot have right of appeal. When you have other proof of your ID such as Driving Licence then where is problem to issue RC on A4.

Iv seen many cases where they first issue visa on A4.

So Pray to Allah and hope for the best.

[EEA2]

Hi Juss did you supply your driving lisence with your application?
Also I want to add that in my case the caseworker not just note that I have no right to appeal, but also that I have to make an arrangements to leave the country as soon as possible .

[Directive/2004/38/EC]

Now I have a question, as I think my chances to win the appeal is very low. And the only way to make a new passport is to go home. But I don't want to be stuck there while my wife is here (she can't go with me because of work)

I have seen people "temporarily" leave the UK because they thought it was the simple way to resolve an EEA free movement problem. And it stretched into months and years. I would strongly recommend you take legal advice before ever considering doing that. It is often easier to wait for a year while in the UK with your family, then killing time in some other country.


UKBA recently released a policy document (for EEA applications) called "Alternative evidence of nationality and identity". It is worth reading and where relevant referring to in your communications with UKBA. Please also provide a copy to your solicitor if you have one.

(The FOI request also produced other UKBA documents relevant for EEA free movement)

[Juss]

Thank you very very very very much Directive.


Are you a lawyer ?

You have have got unbelievable knowledge.


Thanks very much for your valuable guidance.

[Obie]

The link is helpful, but the position of the law remains unchanged, and does not affect the position of the ongoing debate.

The UK has promulgated regulation 29A , which confers a discretion on a decision maker, to accept alternative evidence in certain circumstances.

One of the circumstances envisage, is a situation where someone is an asylum seeker with an existing asylum claim, in those circumstances, it will be unduly unreasonable to expect him or her to obtain an ID from their national authority, that they are seeking protection from.. It does not envisage a situation where a national is refused identification document from a country, from which he is not seeking protection from.

However all of this is a matter of law, which has to be dealt with on appeal. An immigration judge has the power to allow a persons appeal if he or she feels a discretion should have been exercised differently.

The OP will not have a foot to stand in court, on the basis of that policy or guidance, as they call it. But I believe it is a statutory provision, which has been interpreted in a severely restrictive manner by the UKBA.

There will be a strong case, if one argues, there is a discretion, that discretion has not been considered or exercised lawfully, and that discretion should be subject to Judicial scrutiny, as to whether it has been exercised lawfully. That a failure to provide a right of appeal denies the person a right they have under regulation 26, and their right to effective remedy, as notwithstanding their inability to provide the ID, they do have a right of residence under Regulation 14 (2).

This is quite different from saying, someone has a right to a Residence Card under Regulation 17 (1), without providing the necessary documents required by that regulation.

I will advise EEA2 to pursue his case in the UK, and think quite carefully, before going overseas.

[EEA2]

Thank you Obie and Directive for prompt and professional responses. Will keep you updated of my appeal outcome.

[Juss]

Hi everyone

My lawyer sent my case to high court about a month now.
How i can check that my case is in high court. He did not send to tribunal. This is new to me.

[el patron]

Reading this case with interest, some great legal reasoning.

My tuppence worth is - Perhaps this is an example of where a trip to the UK Embassy in Dublin for an application for an EEA Family Permit may provide some assistance?

Provided that evidence of the family member's EEA nationality is produced any refusal decision should attract a right of appeal.

Furthermore, if returning via Holyhead it might be worth contacting the 'UKBA' at Holyhead and requesting admission as a port case.

Looks like the 'UKBA' are planning to get operational more often at Holyhead too!

http://www.tender-service.co.uk/ausschr ... 7E741&meta

[Obie]

A judicial Review can only be done at high court. There is nothing unusual about this.

If you have an admin court reference, you can call and check with court, otherwise call and give your name and DOB, and they will confirm if your name is on their system.

[Juss]

Thanks Obie
I dont know the contact no?

[Obie]

They may not give you any information if you are on record as having a solicitor. The number for England and Wales is 0207 947 6655 and go for option 2.

[Juss]

Thanks Obie

[wiggsy]

No i went to renew my passport but they said no. They want valid VISA then i can renew my passport.

Any one who got Visa when his Passport was expired??????


Thanks.

just a question:

when we went to renew wifes passport,. the guy in the embassy was very hard to get to renew it because of no uk visa.

turned out it was because he didnt want to see ukba turf somebody out of the country unexpectedly.... - an expired passport is sometimes a good thing... Are you sure your embassy was saying no visa = no passport what so ever?

Also, you can highlight caselaw of lawfulness of entry etc being irellevant, your right to remain comes from directive 2004/38/ec.

[Juss]

I provided her EU Card and marriage certificate.

Objections by case worker were :

1. Not Valid passport of Mine.

2. No official letter to my name.

My passport was retained by HO in 2010 and it was already expired before application.
Second reason was silly as i provided enough evidence like

1. Tenancy Agreement signed by both
2. Mobile bills of both
3. Electoral voters letter from council both

For Her:
4. Her NI contribution letters
5. Her HM revenue letter stating she a Self employed
6. Her bank statements
7. Her invoices.
8. Photographs of both
9. Her Accountant letter

Case worker refused they my lawyer sent for reconsideration with my
Driving licence and more statements and bills. Case worker took this letter as Judaical review and wrote to lawyer to contact Judicial Review unit for further correspondence.
My lawyer went with pre action protocal in March and Grounds of appeal in May to Queens bench of High Court.

Still waiting for reply..........................???????

[Juss]

Hi Obie/Sheraz/Directive and all the members thanks for you help and guidance.

As for my case i was refused RC with no right of appeal so i went for judicial review.
Yesterday I have got a letter from my lawyer stating that:

" I have recieved a settlement proposal from Treasury Solicitor. They have agreed to reconsider your case within three months at the date of order being sealed and that if you are not granted a residence permit they will give you an in-country right of appeal."

As today is Saturday and i am unable to contact my lawyer today.
My question is what are the chances that HO will issue me RC.
If so then how long it could take.


My RC TimeLine:

RC Application sent : 19/08/2012
Reminder to send COA: 28/11/2012
COA issued (Further document requested) : 17/01/2013
Refused RC: 08/02/13 (No right of Appeal as my passport was expired)
Pre-Action Protocol : 13/03/2013
Grounds for Appeal sent to High Court : 07/05/2013
Reply from Treasury Solicitor for settlement in three months : 27/06/2013

[augustine70]

hi
To obie/directive/sheraz.......I though there is a line stating that your stay in the UK has to be legal when you apply for EEA routes? (so if you iilegal before applying then its a difficult case?)

Juss...when they refused your student extension visa, what did they say? Did the UKBA gave you a notice to be removed from the country?
My case....came to UK for studying in 1997, after 3years I applied for another course. Course all confirmed payed half my student fees, but it was summer holiday so decided to go for a tour around europe. All trip throughout 7 eu countries was no problem BUT returning to UK through Dover, problems began.(this was 2001, the day before 9/11!!!)
They detained my passport refused to give me back and served me a notice of deportation. (report at Heathrow at this time, your passport and flight will be ready, appeal allowed) Found a lawyer and appealed.
The notice was removed and had to go to court. UKBA did not bother with my case, went to court 3 times each time there, they were apparently unprepared or they need more time. 2 yrs dragged, my course nearly finishing and still no decision!! Lawyer left the company, me stranded. So, I just continued with my studies, course finished and no news from UKBA.
Passport expired whilst in their possession. Met my wife in 2001 but I wasn't sure about our relationship. She is A8 national. Was here in UK as an au-pair and to improve her english during her summer uni year. She went back to continue her studies and after graduated she came back to live with me(2004). Finally after 6yrs together in 2007, my family(sisters) insisted I should get married to this woman. I requested for my passport back from UKBA,(they couldn't locate my passport, and said they have lost my passport and will sent a letter explaining so that i can fly home. Whilst planning about my situation and getting ready, got a phone call, they found my passport and will return it to me. (this passport is expired nearly 5 yrs plus (i think, i can't remember)
Anyway, took my passport to embassy and they refused to give new passport, (i think you can't travel with expired passport?). Argued with them and pointed out it expired whilst in UKBA possession, not my fault, and they gave me new passport only 1 year validity.

Flew home and got married in my country and applied for EEA FP. A week later interview. Few days later 6 months family permit. My wife had to come back to UK to continue her work. (so she left after about 2 1/2 weeks.) I took nearly 1 month off from work. So was back here after a month and went back to work as normal! Applied for EEA extension and got 5 years. Subsequently applied PR.
It took me 3 weeks to get my FP in my country, and was back to work after a month. And we got married in my country as my family was there.

I decided not to backtrack and make my case complicating with UKBA and MORE stress with them, hence i did what i did. And didn't want to get married here as my family/her family are all elsewhere.

So perhaps if your case fails you can apply FP from your country and come back here in no time.

[Obie]

Since the decision in Metock, the requirement for lawful residence has been removed.

[toni34]

Pls be aware that you r taking this matter the wrong way,your proof to being an e.u family member or spouse is not strong enough and people here are not even ready or too polite to point it out.the onus of proof is on you not the ukba,you don't even need a judicial review,what you need is the following documents 1.your passport document.2.EU passport of your eu.proof of official letters addressed to both of you in the same address to prove history of relationship,you need letters like tv licence,council tax bill,water and electricity bills,then you need to show how the e.u member is exercising her trealty rights.if you can do the above then reapply you will get your RC.you don't need those greedy solicitors.most of us here didn't use and were illegals like myself before I got mine.you can use your country I.d as proof of identity but you need the EU passport.