Davmck70 wrote:Hello everyone,
I love to share my pain and I hope someone will help me here. It is a bit lengthy but I plead you read through as this is a case for thought for everyone.
I am married to a Portuguese national who exercises right via self employment as a caterer in UK. Got married in Oct 11, applied for RC in Nov, 11 which was sent back advising that I needed to re-apply due to insufficient documentation. Reapplied in Jan, 12 and received a COA few weeks after. Application refused sometimes in July,12 for which a letter was sent to solicitor to advise him of decision not to issue RC and right of appeal. Refusal letter was not picked up by solicitor and thus returned to HO. I called HO and was advised of decision and also ROA to which another letter was sent to me in Dec, 12.
I got angry with solicitor and thus moved my case to another solicitor to handle with dignity and professionalism. Reasons for refusal included the following:
You applied for a residence card on 12 January 2012 as the spouse of an EEA national who was exercising their treaty rights in the United Kingdom. You have submitted a Nigerian Marriage Certificate under Section 24 of the Nigerian Marriage Act. All marriages celebrated under this civil marriage act required both parties to be present at the ceremony . .The marriage certificate pertains to a marriage under the Nigerian Marriage Act which precludes marriages by proxy under this Act. Paragraph 11 (1)(a)of the Nigerian Marriage Act states 'before the registrar can issue the certificate he must be satisfied that one.of the parties has been resident within the district in which the marriage is intended to be celebrated at least fifteen days preceding the granting of the certificate' Paragraph 26 of the Nigerian Marriage Act continues by stating that 'The certificate shall then be signed in duplicate by the officiating minister, by the parties, and by two or more witnesses to the marriage' You have signed this marriage certificate and it has also been signed by witnesses... However you have not provided any passports valid from this date for either you or your sponsor with evidence of entry or exit stamps to show that you travelled to Nigeria
It has also been noted that on the marriage certificate provided there is a website address. After investigating the website, it has been highlighted that you can obtain various certificates, such as "'marriage certificates and birth certificates. The website address is (delete were applicable)
www.imcnigeria.mysite.com or
www.eri-imc.org or
www.intergovtmaritcte.org or
www.intergovtmaritalete.org or
www.intergovernmentalmarriagereg.org which is not affiliated to the Nigeria Authorities.
Further to this it is noted that the certificate contains details of a website shown as
www.intergovtmaritallcte.org in the bottom right hand comer in which it is stated that details of registered marriages can be obtained. Domain names such as this are stored within databases such that information on the registered owners of said domain names can be queried and discovered. This is carried out using a search known as a WHOIS search. This can be carried out using a number of internet tools such as the website network-tools.com. On typing the above website into Internet Explorer, in the normal way, does not display anything in terms of what would be classed as a normal website, indeed in this case this is a blank page. Performing the aforementioned "WHOIS" search reveals that this domain name does not appear in records as a registered domain. As such this domain name and indeed website does not exist and therefore cannot be associated with a register of marriages as claimed on the provided certificate.
• Consent of the Parties (i.e. of the spouses, parents, and extended families) • Capacity (e.g. relating to age, subsistence of any other marriage, degrees of relationship and status) • Dowry • Formal Giving Away (of the bride)
The addresses for official Nigerian government are
www.nigeria.gov.ng and for the National Population Commission
www.population.gov.ng. It would therefore be expected that marriage certificates issued under the Nigerian Marriage Act would bear a website address of an applicable Nigerian governmental body.
The Nigerian COl report 06 April 2011 states that marriage by proxy is not legally valid under Nigerian civil law. Paragraphs 24.19 and 24.21 refer. This means that in order for a marriage under the Nigerian marriage act to be considered legal, both parties to the marriage must have been present at the ceremony at the time the marriage was undertaken. For this reason the UK Border Agency cannot accept the marriage certificate as being lawfully issued and evidence of your relationship and your application fails to meet Regulation 7 of the Immigration (EEA) Regulations 2006. Additionally; according to official UK Border Agency guidance (which is freely available ,to the public), for a customary marriage to be valid in Nigeria the following conditions must be fulfilled:-
You have not provided any evidence that consent was given for the marriage from the parents and extended family of me spouse, you have not provided any evidence of how long the relationship had been subsisting prior to the marriage, you have not provided any evidence that a dowry was provided for the bride as required, and you have not specified how the bride was formally given away. For this reason the UK Border Agency did not accept the marriage certificate as being lawfully issued and evidence of your relationship and your application failed to meet Regulation 7 of the Immigration (EEA) Regulations 2006. You have stated that your EEA sponsor is exercising treaty rights as self employed The accountant letter dated 11 January 2011 (should be the 11 January 12) from accountant states that your EEA sponsor has been trading since Oct, 11. You have submitted a HMRC registration letter dated 30 November 2011 and financial statements dated 31 December 2011. Finally you have submitted bank statements. In order to decide your EEA sponsor is exercising treaty rights as self employed, we require evidence of tax and national insurance to be paid You have submitted no evidence from HMRC confirming that your EEA spouse has paid tax or national insurance. You have submitted bank statements however they do not confirm receipt of services rendered if your EEA sponsor- company is trading. Furthermore, HMRC recommends that National Insurance contributions to be paid via direct debit there is nothing to indicate in the bank statements she is paying NI contributions through her bank account. You state your EEA sponsor is trading as a catering company, HMRC recommends to set up business bank accounts to separate personal banking from business banking. Your EEA sponsor bank account is for a basic cash card account from Barclays. Your EEA spouse accountant letter states her company is trading as ** Catering Services' we can find no trace through internet searches on how your EEA sponsor is advertising for business. You have not submitted evidence that your EEA spouse has paid a tax return for April 2012, according to HMRC, the deadline is the 31 January 2012. Depending on your business and how you trade, you are required by law to'take out certain types of insurance.
The types of insurance you may need are:-
employer's liability insurance. If you employ other people you must have this insurance. It provides cover for claims made by employees who are injured or become ill as a result of their employment
vehicles insurance. Vehicles used for business purposes must be insured even if already insured for private use
public liability insurance. This provides cover against claims by members of the public who have been injured or had property damaged as a result of carelessness at.work by you or your employees
premises insurance. Insurance will be necessary for the premises you work from, even if you work from home and there is already a policy. This is because the insurance will usually only cover residential use
health and accident insurance. These will pay a regular income or lump sum if you are unable to work because of an accident or sickness. You have not submitted sufficient evidence to consider your EEA sponsor as aperson who is self employed. Therefore, it has been decided to refuse to issue the confirmation that you seek with reference to Regulation 6 and 7 of the Immigration (European Economic Area) Regulations 2006. In making the decision to refuse your application consideration has been given to the following: • EEA 2 Application. • Nigerian Passport. • Portuguese Passport. • Nigerian Marriage Certificate. • Evidence of Self Employment. • Representative Letter (they omitted accountants letter and other prove submitted like bills, photographs etc). As you appear to have no alternative basis of stay in the United Kingdom you should now make arrangements to leave. If you fail to do so voluntarily your departure may be enforced. In that event we would first contact you again and you would have a separate opportunity to make representations against the proposed removal. Help and advice on returning home can be obtained etc
So I appealed the decision Jan, 13 via my new solicitor with some more evidence to show we went to Nigeria (attached spouse passport that had a Nigerian visa endorsed in it, tickets for flights to Nigeria, stamps in spouse passport showing arrival in Nigeria and also in UK, some more pictures from Nigeria, bills, spouses voter’s card, prove of NI contributions etc ).
The First Tier Tribunal promulgated in June, 13 that the HO should approve RC based on all evidences produced as case worker failed to see that spouse passport had Nigerian visa endorsed in it, did not check provided tickets, did not confirm with HMRC.
HO appealed the decision stating that the First Tier tribunal judge had made a material error of law and did not see the physical spouse EEA passport before concluding the case.
I sent another appeal to the Higher Tribunal in July 13 and while awaiting a hearing date, HO wrote to inform me of an oral interview sometimes in Oct 13.
Please can you all help me out with ideas, comments, questions I should expect and any other things i can look forward to. Thanking you all in advance
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