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No there was no mention of any job opportunity for both of us or anything about where we plan to live. where I am working is required as part of the online application.Directive/2004/38/EC wrote:Question: In your new application, did again provide information about jobs you and your spouse were looking at in the UK? Or where you planned to live there? Or where you are presently working?
Understatement of the dayJambo wrote:I believe the visa section in Mumbay need a training session about EEA regulations.
Next time you fill it in, consider writing "where I am working is not material for decision on the spouse of an EU citizen"donald_f wrote:No there was no mention of any job opportunity for both of us or anything about where we plan to live. where I am working is required as part of the online application.
There is already an appeal filed against my 2nd refusal and the ECO is set to respond to it before November end.Jambo wrote:I suggest you chase them up and start the appeal process (sending the form. Paying the fee). As part of the appeal process, before a hearing is set, the post reviews the decision so you might not require the actual hearing but you prepare an appeal.
May I suggest you contact the European Policy team in Liverpool and confirm with them your position as your response and the decision made by the ECO reflect a misunderstanding in the basics of EEA regulations. The UKBA EUN guidelines clearly states (EUN2.4) - "It is important not to test overall intentions in assessing applications for an EEA family permit. Also, there is an initial right of residence for 3 months, which means that an EEA national does not have to be exercising a treaty right immediately on arrival in the UK." There is no requirement to be a qualified person when a EEA Family Permit is issued if the EEA national is not residing in the UK. There is a period of 3 months in which the EEA national doesn't need to exercise treaty rights. In order to reside more than 3 months, the EEA national would need to exercise treaty rights but how he will achieve that is NOT a deciding factor in issuing a EEA Family Permit. This is a fundamental part of EEA regulation and I'm confident the European Policy team in Liverpool would agree with this view. I just don't understand why the post is forcing me to obtain the permit using an appeal. This is not a complicated case but a simple case which is being dragged for several months now due to the luck of understanding of the rules by the ECO."
The key phrase is "on arrival in the UK"!Issue of EEA family permit
12.—(1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and—
(a) the EEA national—
(i) is residing in the UK in accordance with these Regulations; or
(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and
(b) the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there.
(2) [relevant only to extended family member]
(3) [relevant only to extended family member]
(4) An EEA family permit issued under this regulation shall be issued free of charge and as soon as possible.
(5) But an EEA family permit shall not be issued under this regulation if the applicant or the EEA national concerned falls to be excluded from the United Kingdom on grounds of public policy, public security or public health in accordance with regulation 21.
Will be is an absolute; a certainty. Applying for jobs and giving an undertaking does not meet that standard if taken literally. Having a promise of a job and tickets paid for might. That's the danger when arguing on the basis of statutory provisions.(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom
This response was to the email sent to UKBA as per the draft you provided.Jambo wrote:Was this the response from your email to the BHC or a general complaint to UKBA.
This is just ridiculous. It seems that you have no option other than appeal as clearly they are not familiar with EEA regulations.
I would reply to this email stating that
May I suggest you contact the European Policy team in Liverpool and confirm with them your position as your response and the decision made by the ECO reflect a misunderstanding in the basics of EEA regulations. The UKBA EUN guidelines clearly states (EUN2.4) - "It is important not to test overall intentions in assessing applications for an EEA family permit. Also, there is an initial right of residence for 3 months, which means that an EEA national does not have to be exercising a treaty right immediately on arrival in the UK." There is no requirement to be a qualified person when a EEA Family Permit is issued if the EEA national is not residing in the UK. There is a period of 3 months in which the EEA national doesn't need to exercise treaty rights. In order to reside more than 3 months, the EEA national would need to exercise treaty rights but how he will achieve that is NOT a deciding factor in issuing a EEA Family Permit. This is a fundamental part of EEA regulation and I'm confident the European Policy team in Liverpool would agree with this view. I just don't understand why the post is forcing me to obtain the permit using an appeal. This is not a complicated case but a simple case which is being dragged for several months now due to the luck of understanding of the rules by the ECO."
As you already have an appeal pending, my advice (other might disagree) is to send the text I wrote as a response both to the UKBA and the visa section addresses. Your best chance is convincing the ECM to consult with the team in the UK.donald_f wrote:This response was to the email sent to UKBA as per the draft you provided.
Also Note: This response is from Entry Clearance Manager.
http://eumovement.wordpress.com/2012/11 ... residence/ contains the ECJ case law: ECJ case C-157/03, Commission v Spain [2005]keffers wrote:The applicant needs to be able to provide at least relevant Upper Tribunal Interpreations that address the point he is making. The ECO has to comply with the Tribunals interpretation and not the applicants
Directive/2004/38/EC wrote:I think the OP has 5 options, a number of which can be done in parallel:
(1) Appeal. This is being done but could take 3-6 months to resolve.(2) Apply again. No downside except for the time it takes to submit a new application and go to give finger printsHope to hear from the First-tier Tribunal after the 27-Nov-12 about the ECM's reply(3) Launch a JR.Every time I apply the UKBA decorates the last page of my passport with their stamp
(4) Request compensation from UKBA. This has the feature of calling attention to your case by senior people not associated with the decisions.If cost is involved than its not an option for me.(5) Formally complain to UKBACan this happen before decision on my appeal is given by the First-tier TribunalRepeatedly applying may give a stream of NO NO NO NO results. But it will likely look like NO NO NO NO YES. So I think it is worth doing if the applicant has time.Will definitely complain to the UKBA about the refusal decisions
Plus if you want to seek compensation, then it is nice to have a consistent stream of refusals blocking the EU citizen's right of free movement.
I am exploring the option of writing to Jonathan Devereaux as suggested