Amendment to EEA Regulation from 1/01/2014 Singh diluted

[Radconn]

I submitted my wife's application online prior to the 24th December 2013. The application was accepted and a reference number issued.

The appointment for biometrics and document submission was on the 6th January 2014.

Subsequently the visa was refused.
The ECO's reason for refusal was, and I quote:
"Your spouse has provided a letter of support in which he states that he has been self employed in Ireland since October 2013; and as such I am not satisfied that he has transferred his life and has been exercising his treaty rights in an EU state as a self employed person for a qualifying period. Therefore, I am not satisfied that the Regulations apply in this case"

By way of some further explanation.
My wife, my child and myself have lived in Thailand for the previous 5 years. We did not arrive in Ireland from the UK. Neither do I own any property there.

In my supporting letter I did not state from October 2013, that I was self employed. We in fact arrived in August 2013 and was self employed from the beginning.

I registered a Trading name in Ireland and sent documentation to show that my business, while not making income yet, was a legitimate business, with receipts etc. Plus my registration with the tax authorities here in Ireland.
All other documentation was in order and given to the embassy.

Since my refusal I have paid for my wife to appeal the decision at the 1st Tier Tribunal.

My main reason that I gave for the appeal was based on my interpretation of the new Regulations that came into force on the 01/01/2014. That there are Transitional Provisions to these new regulations. It states quite clearly that an application previously submitted before the new regulations come into force and has not been dealt with, does not come under the Regulations as of 01/01/2014. I can supply the actual wording, if anyone wants to really know.
I believe that the ECO did not take that into account, in his decision.

Today we received a reply from the Tribunal, stating that the ECO that made the original refusal, is now entitled to review his decision and possibly issue a visa, if he chooses to overturn his own decision.

If he stands by his decision he is allowed up to 19 weeks to get the documentation together and supply the court with the "bundle".
Based on that time scale it would most likely be some time in August before our appeal will be heard.

Sorry it has been quite long winded, but unless I explain the whole scenario, it doesn't make sense.

Anyway, my questions to anyone that might be able to shed some light for me, would be gratefully received.
1. What would you do in my situation now?
2. Would you wait and see if this ECO changes his mind, if he does.
3. Wait until the appeal is heard, even if it takes until August. Which would be a difficult time scale for us, for personal reasons I don't want to go into here.
4.Wait until another couple of months go by and if there has been no response from the ECO, then cancel the appeal and apply again?

Any information would be greatly appreciated.

Thanks
Brad

[dalebutt]

I think you should create a thread or post your queries in one of the thread under the centre of life refusal. Going forward, in your situation I will book a flight, ferry or if I had a car drive into the UK and submit an application for EEA2.

In your position I would not wait a further week since receiving the letter from the tribunal, except there are important things to do in Ireland.

It has come to the point that applicants now have to wait for several months to get justice in this country, an FP appeal should not be taking more than 8 weeks, shamefully appeal timeline was not addressed in the directive so people have to get used to this shambles for a long time now. It would be interesting to see what the ECO's qualifying period is? Someone needs to scream at the lots of them, their legislation cannot stand, Singh route is not a priviledge, it is a right enshrined in the treaty of Rome, there cannot be time frame, the whole treaty will need overhauling if that's to be the case.

You definitely should be considered under the previous rules before the amendments, these people are time wasters, the refusal is not even worth the paper it was printed on. Shame!

[AngieD]

For this who do not know the UKBA website has now been archived and you now go here

https://www.gov.uk/visas-immigration

Now go to the EEA Family Permit page and note the deliberate omission
https://www.gov.uk/family-permit

In fact it is worse than just omitting Singh - it actually says that only British Citizens who are carers can benefit from such a permit

"You can also apply for an EEA family permit if you’re the main carer of:

a British citizen
a financially self-sufficient child who is an EEA national
a child of an EEA national who was a worker in the UK
You should apply for a visa to join your family member instead if your family member is a British citizen (unless you’re their carer)."

In fact it is full of errors - states that a FP can only be used once - its multi entry for 6 months. Also states that you MUST apply for a family permit.

Anyone would think that the Home Office doesn't want to acknowledge the Case law of Singh etc

If you dig further and actually type Surinder Singh in to the search box - it takes you to the Resident Card page - there is outlines the new "centre of life" guidelines

https://www.gov.uk/apply-for-a-uk-resid ... ligibility

[Radconn]

I think you should create a thread or post your queries in one of the thread under the centre of life refusal. Going forward, in your situation I will book a flight, ferry or if I had a car drive into the UK and submit an application for EEA2.

In your position I would not wait a further week since receiving the letter from the tribunal, except there are important things to do in Ireland.

It has come to the point that applicants now have to wait for several months to get justice in this country, an FP appeal should not be taking more than 8 weeks, shamefully appeal timeline was not addressed in the directive so people have to get used to this shambles for a long time now. It would be interesting to see what the ECO's qualifying period is? Someone needs to scream at the lots of them, their legislation cannot stand, Singh route is not a priviledge, it is a right enshrined in the treaty of Rome, there cannot be time frame, the whole treaty will need overhauling if that's to be the case.

You definitely should be considered under the previous rules before the amendments, these people are time wasters, the refusal is not even worth the paper it was printed on. Shame!

Hi Dalebutt
I'm just curious about what you said regarding going to the UK and applying for EEA2.
With the tighter regulations in force now, what do you think the situation would be if we did travel to the UK without an EEA FP?

I didn't realize that the EEA 2 was issued based on the EU citizens documents from the member state where they were living prior to moving to the UK.
Doesn't make a lot of sense to me that what someone was doing, employment wise, in one EU state has any bearing on what they will do when they arrive in the UK. They would generally arrive with no job or income in most cases.

I could drive to the UK with my family, with all the documents that I sent to the UK embassy, but if I was stopped at the border I would be concerned that we would be turned back.
The reason for refusal was the self employed status, not satisfying the ECO, would they likely refuse entry at the port?

On the appeal I have heard back and it will be June or July at the earliest, based on their time scale.

Just wondering what you think?
Brad

[chaoclive]

What a surprise that they don't want people to know about Singh!

"Carer..." That is ridiculous...

[chaoclive]

Not sure where in the UK you want to go, but you can always drive through Northern Ireland and then take the ferry across to Scotland and drive on to wherever your final destination might be.

Dalebutt is right re: the rule. It is fine to do this. An EEA FP is not needed any way...

Keep all your docs from Ireland. You will definitely need these when applying for the EEA2 when you get to the UK. Please make sure that you keep copies of EVERYTHING from everywhere. You can find details on what is needed for the EEA2 on the gov.uk website.

All the best!
C

[Radconn]

Not sure where in the UK you want to go, but you can always drive through Northern Ireland and then take the ferry across to Scotland and drive on to wherever your final destination might be.

Dalebutt is right re: the rule. It is fine to do this. An EEA FP is not needed any way...

Keep all your docs from Ireland. You will definitely need these when applying for the EEA2 when you get to the UK. Please make sure that you keep copies of EVERYTHING from everywhere. You can find details on what is needed for the EEA2 on the gov.uk website.

All the best!
C

Thanks for replying Chaoclive, have to say I am worried about going without the FP.
My wife's application was refused in January and I wonder if that would mean they might just refuse the EEA2 anyway, even if we did get in.
I read on one of the EU websites that if you arrive without the FP but your docs are in order they have to issue a C visa (not sure what the class was).

It's all an unnecessary worry though.

[chaoclive]

That's right re: the stamp (I think it's called A1). However, they apparently tend to make it very difficult to get this (sitting waiting) and check the documents pertaining to family members of British citizens really carefully. I think you have to ask for the Immigration Supervisor (or some similar title) when you get to the window. Another thing: you won't actually meet any border control staff between the Republic of Ireland and Northern Ireland...so I'm not sure where you could get this stamp.

The only issue that you might have (and I'm not sure if it will be a problem) is with the staff who check you in on the ferry. I've never taken the ferry before so i'm not sure if they look at passports? Technically they don't need to because you are travelling within the common travel area...but who knows? You could always email the ferry company that you might use and ask how they would deal with this. Might be good to provide an 'alternative' name so that you don't raise any alarm bells. Of course, you can make a general enquiry, it doesn't need to be about the route that you would be taking in particular. Leave plenty of time for them to reply though...I've found these transport companies to be awful (at least airlines).

Of course your EEA FP is the stamp of approval that you're ready to go back to the UK, but if you're in a rush you could try to return via N. Ireland first and then just apply. You don't have to be exercising treaty rights when you get back (at least not straightway) so you could go ahead and apply for EEA2.

I've just had a though and I'm totally unsure about whether or not this would work...but have you ever thought about moving to N. Ireland and applying for the EEA2 there? I'm not sure if this would work and it may not suit you but at least you would be able to move back to Ireland easily if needs be (rent an apartment in a town near the border, e.g. Newry/Strabane, depending on where you are at the minute). You might be able to do this whilst maintaining your business and accounts in the ROI. I'm REALLY not sure how/if it would work and I hope that some of the experts will weigh in on this. Good people are, of course, Dalebutt, Jambo and Brigid from Ireland. They're super helpful and really know their stuff!

[Radconn]

Thanks very much for your information.
I think I need to research some more as you suggest with the ferry company. If they won't even allow us on the boat, might be a problem there.

Moving up to NI wouldn't work because we live in Cork.

But once again thanks for your helpful input. Appreciate it.

[kristine015]

Hi Radcon,

I too live in N.ireland. Am a non eea and been living in N.I 11 yrs. I have been on the ferry a few times couple of years ago. On the ferry from Ni to Scotland and I'm assuming to other parts of UK you only really need to show any of your photographic ID and ferry ticket. On board I have never experienced being checked for any visa as such. Last time I travelled via ferry was in 2011. Perhaps there might be changes now they've tighten rules who knows?

[Radconn]

Hi Radcon,

I too live in N.ireland. Am a non eea and been living in N.I 11 yrs. I have been on the ferry a few times couple of years ago. On the ferry from Ni to Scotland and I'm assuming to other parts of UK you only really need to show any of your photographic ID and ferry ticket. On board I have never experienced being checked for any visa as such. Last time I travelled via ferry was in 2011. Perhaps there might be changes now they've tighten rules who knows?

From what I have read they are tightening the border controls, they are aware that the ferry route is a potential security risk.

Haven't made the trip at all so have no idea what to expect, to be honest.

[gprit]

Gosh - this is complicated stuff!
Anyone have an opinion of my situation?
> I own a small house in the UK (with mortgage)
> I have owned a large house in France (with mortgage) for 15 years.
> I have had French bank account for 15 years.
> I have had a French car since 2003
> HMRC decided I was non-uk resident since April 2013, although I am still charged UK tax on income in the UK.

Now then, I am married to a Thai lady and we have one son (who has UK passport). We plan to go to France mid March to mid June (90 days), then back to Thailand, returning to France mid Sept to mid November. During our first stay we planned to apply for a 'carte de sejour' for my wife, and then during our second stay we planned to apply under EEU rules for her to stay in the UK longer than a Visitor visa would allow. I have hardly spent any time in the UK since mid 2012.

How am I doing? My concern is that I am NOT working / self employed in France - I am retired and self sufficient.

[chaoclive]

Self-sufficieny doesn't seem to be accepted under the Surinder Singh guidelines. You need to be employed/self-employed to qualify. Perhaps you could get a part-time job?

[Radconn]

I'm not sure that they will accept part time work either under the new guidelines.
Seems that they would class that as temporary/casual work.

[dalebutt]

They cannot, there is no legal basis for them to do so, part time worker have the same status as full time under EU law, as far as the employment is genuine and effective.

[rosebead]

Gprit, under UK rules you have to be working in the host country to come back under Surinder Singh. Under EU law, there are no minimum hours per week nor length of employment that you have to complete to be deemed a 'worker', although some case laws suggest that 10-12 hours per week for 10 weeks makes you a 'worker'. I'm afraid the UK's implementation of EU law is often very narrow and goes against the intentions behind an EU law. The UK have very literally interpreted Surinder Singh case law to mean that you have to be 'married' and a 'worker' to be eligible, as Surinder Singh's British wife was both 'married' and a 'worker'. The Surinder Singh route is now further complicated by the new 'centre of life' rules since Jan 1st. Whereas before you could quite easily be qualified for Surinder Singh after 3 months of living and working in the EU, now it's anybody's guess. Gprit, you have better odds of success under the new 'centre of life' rules than others, since you have a property and a long history in France, but you will have to get a job or become self-employed in France, and you shouldn't visit the UK too frequently or it will look like you have transferred your 'centre of life' back to the UK. It is a great bonus that you are considered a non-UK resident.

[gprit]

Thanks for the comments/advice.
When I am in France March-June I plan to file tax returns there - I also (still) sometimes design websites in a self employed category.
The website is a .co.uk domain and payments are made to me in sterling.
Could this still count as 'self employed' as obviously I can work at this from wherever I am in the world, including France.

[Radconn]

Thanks for the comments/advice.
When I am in France March-June I plan to file tax returns there - I also (still) sometimes design websites in a self employed category.
The website is a .co.uk domain and payments are made to me in sterling.
Could this still count as 'self employed' as obviously I can work at this from wherever I am in the world, including France.

gprit I think the main problem, especially for Brits, is the UK government interpret the Regulations whichever way they like. Then rely on the Appeal system taking so long to deal with cases. My own case is a point in question. My wife's visa was refused in January and it will be at the very earliest July before the case will be heard.
They assessed her application on the new rules as of 01/01/2014, but it should have been looked at according to the rules prior to that date. That's blatant. The ECO has to be aware what he/she is doing.

The wording on the amendments are deliberately vague enough to give the ECO's room to interpret them, I won't say how they please, but definitely not in most applicants favour.

I don't proclaim to be any kind of expert and there are far wiser people on this forum than myself, I am only giving you my point of view.

As far as the website being a .co.uk site in my opinion that doesn't matter. What might go against you is the payments made to you in Sterling. I do very similar work and I have websites that are .com registered in the US, but any payments I receive are paid to me in Euros through my bank account here in Ireland.

The ECO was not happy about my self employed status and used that as his basis for refusal. He decided that I had not "Transferred my life" for a "qualifying period"
At the time of the application we had been living in Ireland just over 4 months.

We have no connections in the UK such as property etc. We came here directly from 6 years in Thailand. Yet he still found a reason to refuse us.

I don't plan on waiting until the appeal has been heard, I intend to re-apply in April. That will be going on 9 months that we have lived here. Plus this time I intend to get an accountant here to provide accounts that I can present to them.

Anyway, as I said just my point of view.

[AngieD]

gprit I think the main problem, especially for Brits, is the UK government interpret the Regulations whichever way they like. Then rely on the Appeal system taking so long to deal with cases. My own case is a point in question. My wife's visa was refused in January and it will be at the very earliest July before the case will be heard.
They assessed her application on the new rules as of 01/01/2014, but it should have been looked at according to the rules prior to that date. That's blatant. The ECO has to be aware what he/she is doing.

The wording on the amendments are deliberately vague enough to give the ECO's room to interpret them, I won't say how they please, but definitely not in most applicants favour.

I don't proclaim to be any kind of expert and there are far wiser people on this forum than myself, I am only giving you my point of view.

As far as the website being a .co.uk site in my opinion that doesn't matter. What might go against you is the payments made to you in Sterling. I do very similar work and I have websites that are .com registered in the US, but any payments I receive are paid to me in Euros through my bank account here in Ireland.

The ECO was not happy about my self employed status and used that as his basis for refusal. He decided that I had not "Transferred my life" for a "qualifying period"
At the time of the application we had been living in Ireland just over 4 months.

We have no connections in the UK such as property etc. We came here directly from 6 years in Thailand. Yet he still found a reason to refuse us.

I don't plan on waiting until the appeal has been heard, I intend to re-apply in April. That will be going on 9 months that we have lived here. Plus this time I intend to get an accountant here to provide accounts that I can present to them.

Anyway, as I said just my point of view.

Why did you not ask for a reconsideration of the decision? I have seen this happen to a couple of people - should have been dealt with under the old rules and were not. They had the decision overturned when the mistake was pointed out. The Home Office have transitional arrangements in place and they should have been adhered to in your case. You should write and ask for a reconsideration of the decision.

[Radconn]

gprit I think the main problem, especially for Brits, is the UK government interpret the Regulations whichever way they like. Then rely on the Appeal system taking so long to deal with cases. My own case is a point in question. My wife's visa was refused in January and it will be at the very earliest July before the case will be heard.
They assessed her application on the new rules as of 01/01/2014, but it should have been looked at according to the rules prior to that date. That's blatant. The ECO has to be aware what he/she is doing.

The wording on the amendments are deliberately vague enough to give the ECO's room to interpret them, I won't say how they please, but definitely not in most applicants favour.

I don't proclaim to be any kind of expert and there are far wiser people on this forum than myself, I am only giving you my point of view.

As far as the website being a .co.uk site in my opinion that doesn't matter. What might go against you is the payments made to you in Sterling. I do very similar work and I have websites that are .com registered in the US, but any payments I receive are paid to me in Euros through my bank account here in Ireland.

The ECO was not happy about my self employed status and used that as his basis for refusal. He decided that I had not "Transferred my life" for a "qualifying period"
At the time of the application we had been living in Ireland just over 4 months.

We have no connections in the UK such as property etc. We came here directly from 6 years in Thailand. Yet he still found a reason to refuse us.

I don't plan on waiting until the appeal has been heard, I intend to re-apply in April. That will be going on 9 months that we have lived here. Plus this time I intend to get an accountant here to provide accounts that I can present to them.

Anyway, as I said just my point of view.

Why did you not ask for a reconsideration of the decision? I have seen this happen to a couple of people - should have been dealt with under the old rules and were not. They had the decision overturned when the mistake was pointed out. The Home Office have transitional arrangements in place and they should have been adhered to in your case. You should write and ask for a reconsideration of the decision.

Ask for a reconsideration where? I wrote to the ECM in Dublin and didn't even receive any acknowledgment, even though I sent it by registered post, and have a signature of the receiving person. There are no email addresses or telephone numbers listed anywhere anymore, they have all been removed.

I found the email address of a deputy chief caseworker in the UK, Linda Bateman at the HO in Liverpool. I emailed her the whole story but she wouldn't do anything because it was outside the UK.

I have gone down the appeal route, but that takes months. Other than what I have done, there doesn't seem to be anywhere else to go with it.

If you have any ideas where to write and ask for a reconsideration, I would be very grateful to hear them.

Thanks very much.

[AngieD]

Ask for a reconsideration where? I wrote to the ECM in Dublin and didn't even receive any acknowledgment, even though I sent it by registered post, and have a signature of the receiving person. There are no email addresses or telephone numbers listed anywhere anymore, they have all been removed.

I found the email address of a deputy chief caseworker in the UK, Linda Bateman at the HO in Liverpool. I emailed her the whole story but she wouldn't do anything because it was outside the UK.

I have gone down the appeal route, but that takes months. Other than what I have done, there doesn't seem to be anywhere else to go with it.

If you have any ideas where to write and ask for a reconsideration, I would be very grateful to hear them.

Thanks very much.

One case I know of his wife was refused in France - he wrote to the address on the refusal notice pointing out their deliberate mistake. He did also inform them that he was going to appeal the decision. As far as I know the Dublin FP's are actually done in London (probably Croydon) - was there any indication on your refusal where it was actually dealt with? If there is, then that would probably be the best place to contact.

[Radconn]

Ask for a reconsideration where? I wrote to the ECM in Dublin and didn't even receive any acknowledgment, even though I sent it by registered post, and have a signature of the receiving person. There are no email addresses or telephone numbers listed anywhere anymore, they have all been removed.

I found the email address of a deputy chief caseworker in the UK, Linda Bateman at the HO in Liverpool. I emailed her the whole story but she wouldn't do anything because it was outside the UK.

I have gone down the appeal route, but that takes months. Other than what I have done, there doesn't seem to be anywhere else to go with it.

If you have any ideas where to write and ask for a reconsideration, I would be very grateful to hear them.

Thanks very much.

One case I know of his wife was refused in France - he wrote to the address on the refusal notice pointing out their deliberate mistake. He did also inform them that he was going to appeal the decision. As far as I know the Dublin FP's are actually done in London (probably Croydon) - was there any indication on your refusal where it was actually dealt with? If there is, then that would probably be the best place to contact.

They are definitely done in London now. I think it's deliberate because they probably get more and more applications from Ireland. Just another way to make it more difficult.
There is nothing on the refusal, no addresses, no caseworker nothing. It's very obvious what they're up to and what with the length of time for appeals, they know that a refusal will not be heard for upwards of 6 months.

I have heard of re-considerations taking place in other countries, France was also where I heard a decision was reversed.

Even when they are incorrect in their ruling, there is no way about getting it changed. It just adds to the injustice by the UK government.

[chaoclive]

How about putting in a Freedom of Information to see if you can possibly get access to the information that you require?

Alternatively, what about contacting the VFS/WorldBridge people (or whichever external body now deals with the visa applications in Dublin) and asking them for some contact details. Worth a try to see what they say, just takes a few minutes to send an email after all! I have just found this: Contact WorldBridge call centre 1570 214 314.

I know that WorldBridge are not the ones who can solve the problem, but it might be worth the few minutes to ask them if they know how you can directly contact the Embassy visa staff who make decisions, e.g. do they have a number/email address that they could give you?

I've also found this email address (don't know anything about it, but it might be a good idea to send something through, you'll have a draft anyways!): visa.dublin@fco.gov.uk. This is for the Trade Section, but...in desperate times...: trade3.dublin@fco.gov.uk

Again, what about a call to the Consular section to explain your issue. They may have an internal directory to hand and might throw you a telephone number?

Sorry, I know that the above are not really helpful, but I'm just trying to provide ideas that you may not have thought of before.

I know some of these contacts are unrelated to visas, but when desperate, I often try anything! You don't need to tell them who you are (unless they will try to get an ECO to contact you after the call).

Good luck! Hope you can get hold of someone soon!
C

[Radconn]

How about putting in a Freedom of Information to see if you can possibly get access to the information that you require?

Alternatively, what about contacting the VFS/WorldBridge people (or whichever external body now deals with the visa applications in Dublin) and asking them for some contact details. Worth a try to see what they say, just takes a few minutes to send an email after all! I have just found this: Contact WorldBridge call centre 1570 214 314.

I know that WorldBridge are not the ones who can solve the problem, but it might be worth the few minutes to ask them if they know how you can directly contact the Embassy visa staff who make decisions, e.g. do they have a number/email address that they could give you?

I've also found this email address (don't know anything about it, but it might be a good idea to send something through, you'll have a draft anyways!): visa.dublin@fco.gov.uk. This is for the Trade Section, but...in desperate times...: trade3.dublin@fco.gov.uk

Again, what about a call to the Consular section to explain your issue. They may have an internal directory to hand and might throw you a telephone number?

Sorry, I know that the above are not really helpful, but I'm just trying to provide ideas that you may not have thought of before.

I know some of these contacts are unrelated to visas, but when desperate, I often try anything! You don't need to tell them who you are (unless they will try to get an ECO to contact you after the call).

Good luck! Hope you can get hold of someone soon!
C

All good suggestions thank you.
I will give them all a go tomorrow.
I can post on here what results I managed to get, if any.
At least it will be on here for anyone else that might find themselves in this position.

Thanks a lot.

[rosebead]

Radconn, where did you post your appeal to? Perhaps that would be the place to write to? Were you given any reference or case i.d. number? If so, I would try writing to the appeals address with your reference number and ask for a reconsideration. No harm in trying.

I found this gov.uk link with info about reconsideration requests. The site says that reconsiderations can only be requested within the UK but I'd ignore all that, as I don't think it can apply to EEA Nationals, which in effect are what Surinder Singhers are.

The site says:

Send your request to the team who made the decision on your original application - the address will be shown on the decision letter.

I'm guessing this must be the appeals address, but I could be wrong.