Refusals for EEA family permit

[donald_f]

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 What are the requirements for issuing an EEA family permit?) -
"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."

The guidance continues in “EUN2.23 Suggested refusal wordings” with a careful warning the ECO:


vi. The EEA national is not a qualified person because there is no evidence of Treaty rights being exercised:

'You have failed to provide evidence that your EEA national family member is a qualified person in accordance with Regulation 6 of the Immigration (European Economic Area) Regulations 2006. I am, therefore, not satisfied that your EEA national family member is residing in the UK in accordance with the Immigration (European Economic Area) Regulations 2006.'

Please note: because of the initial right of residence, the ECO cannot refuse someone on the basis that that their EEA national family member will not be a qualified person in the UK on arrival. However, if the ECO is satisfied that the EEA national has been in the UK for longer than three months, the ECO must be satisfied that the EEA national is a qualified person.

EUN1.3 What rights do EEA nationals have to live and work in the UK?

EEA nationals are entitled to reside in the UK for an initial period of three months without needing to exercise a Treaty right. An EEA national who will be in the UK for more than three months will have a right of residence for as long as they remain a qualified person.

Entry Clearance Manager Response

Thank you for your email dated 29 November 2012 regarding refusal of your visa application.

I have reviewed the decision and I note that my colleague gave you a comprehensive response and explanation to your enquiry on 20 November 2012. Your sponsor is not currently based in the UK and therefore your application needs to demonstrate that your sponsor is a qualifying person under regulation 12 of the EEA regulations. The ECO has refused your application because your sponsor has not demonstrated she is a qualifying person under regulation 12. You have mentioned the 3 month period in which EEA nationals can reside in the UK without exercising treaty rights however this does not apply to your sponsor as she is not currently in the UK and is not currently a qualifying person under regulation 6. Therefore I am satisfied that the ECO has correctly considered your application.

I note that the decision attracts a full right of appeal and I would suggest that you exercise your right to the appeal should you wish to submit further evidence or representations. Alternatively you can submit a fresh application.

[Jambo]

I don't know whether to laugh or cry!

I wonder if the ECM read what he wrote - "you can't make use of the initial 3 months because you are not in the UK". The response is a joke.

When is the appeal date?

[aledeniz]

I don't know whether to laugh or cry!

I wonder if the ECM read what he wrote - "you can't make use of the initial 3 months because you are not in the UK". The response is a joke.

When is the appeal date?

I was wondering if internally they have some sort of yearly quota to reach, something like: "by the 31st December 2012 we need to refuse xyz % of the applications of this type". Has anyone ever requested a FOI about that?

[donald_f]

I don't know whether to laugh or cry!

I wonder if the ECM read what he wrote - "you can't make use of the initial 3 months because you are not in the UK". The response is a joke.

When is the appeal date?

Have received the ECM response bundle.
We need to respond before 14 Jan 2013.
Will post the same once I get a soft copy.

[Obie]

It is shocking that a civil servant can be this incompetence. The person that wrote that reason, is not fit to be in that position. He/she cannot understand basic law written in basic english.

It seems like incompetence is the only qualification required to be an Entry Clearance manager these days.

[EUsmileWEallsmile]

Entry Clearance Manager Response

Thank you for your email dated 29 November 2012 regarding refusal of your visa application.

I have reviewed the decision and I note that my colleague gave you a comprehensive response and explanation to your enquiry on 20 November 2012. Your sponsor is not currently based in the UK and therefore your application needs to demonstrate that your sponsor is a qualifying person under regulation 12 of the EEA regulations. The ECO has refused your application because your sponsor has not demonstrated she is a qualifying person under regulation 12. You have mentioned the 3 month period in which EEA nationals can reside in the UK without exercising treaty rights however this does not apply to your sponsor as she is not currently in the UK and is not currently a qualifying person under regulation 6. Therefore I am satisfied that the ECO has correctly considered your application.

I note that the decision attracts a full right of appeal and I would suggest that you exercise your right to the appeal should you wish to submit further evidence or representations. Alternatively you can submit a fresh application.

The important words in Regulation 12 are "in accordance with these regulations". It does not specify a particular regulation that must be complied with. Therefore, it does not have to be 6. In your case 13 is the only relevant one.

I would continue with your appeal.

[Jambo]

Not sure there is much point to respond to the letter but if you are looking for some suggestions (just to release some steam) I would write something in the lines of:

"Rest assure I will appeal this decision. I will also file a complaint with the UKBA in Liverpool and the European Commission as your letter represent lack of understanding of the basic principles of EEA regulations. I must admit that this level of understanding is worrying and I encourage you to urgently seek guidance and trainging on these matters from the European Policy team."

I will also file a complaint (again) with UKBA and ask a senior caseworker from the UK to review the decisions made by the post.

And wait for the appeal.

[keffers]

Do threatening letters actually work? Or are they counter-productive?

Assertive but not threatening is surely a better way.

Does anyone have any evidence of an ECO/ECM being disciplined because they have made a mistatke? If not, why threaten?

[Directive/2004/38/EC]

Do threatening letters actually work? Or are they counter-productive?

Assertive but not threatening is surely a better way.

Does anyone have any evidence of an ECO/ECM being disciplined because they have made a mistatke? If not, why threaten?

I would never think a "threatening" letter makes any sense, in the sense of aggressive and personally attacking.

But a letter which clearly lays out the law, and which says "If you do not do the right thing, I will get person X, Y and Z involved" can be very effective. I also think it can be effective to point out you will request compensation, though most ECOs will not know enough to realise this can be done.

[donald_f]

This could be the reason for the refusals...

http://www.deccanherald.com/content/191 ... oking.html

There has been some political pressure in Lisbon to change the laws that allow Indians from Goa, Daman and Diu to apply for Portuguese nationality. What is your view on this?
I do not have a personal view on this. Portugal's position is still the same and we have not felt any political pressure to change.

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The chances are by and large that at some point of time, the Portuguese government may crack the whip and say enough is enough vis a vis - Portuguese citizenship for former colonies. Till now, Portugal have been resisting pressures from UK and other European countries in closing the doors of citizenship for residents of former colonies.

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The number of applications increased exponentially after 1986 and Portugal started receiving pressures from Europe to change Portuguese Nationality Law but everything remains unchanged so far.

The Portuguese Nationality Law also grants citizenship to descendants of Portuguese citizens. Therefore, even if one was only born yesterday, but had a grandfather or grandmother who was born in Portuguese India before 1961, this person can apply for Portuguese nationality.

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http://papers.ssrn.com/sol3/papers.cfm? ... id=2114034

There is some pressure within the EU countries to decline visas to such immigrants due to the threat they pose to the domestic labour market.

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[Directive/2004/38/EC]

The UK has its own amazing citizenship laws. Portugal too. It does not matter how one legally obtains citizenship, the UK still is required to respect the fact that your spouse is Portuguese.

[EUsmileWEallsmile]

This could be the reason for the refusals...

Even if this were the basis for the refusals, the refusal letter should have stated this. The reason for the refusal appears to be ignorance of the law.

[donald_f]

To, EuropeanOperational@homeoffice.gsi.gov.uk
I am writing to seek your advice and guidance in applying for an EEA Family Permit.

My spouse an EEA national has never been to the UK before, I am a non-EEA national and we intend to travel together to UK within 6 months.

To obtain a EEA family permit does my spouse need to demonstrate that he or she is a “Qualified Person” under regulation 12 for the purposes of non-EEA family members applying for EEA Family Permits from overseas, if the EEA National has never resided in the UK but resides with her non-EEA family members outside the UK.

Thank you for your email dated 16th December 2012 in which you have requested advice on applying for an EEA family permit.

I can confirm that a non-EEA national family member of an EEA national is not required to submit evidence that their EEA national family member is exercising free movement rights (i.e. is a ‘qualified person’) where;

(1) The EEA national will be accompanying the non-EEA national family member to the UK, or
(2) The EEA national is in the UK but has resided there for a period of less than three months (this is because EEA nationals are not obliged to exercise free movement rights within the first three months after entering the UK)

Where the EEA national has resided in the UK beyond their initial 3 month right of residence, the non-EEA national family member who is applying for an EEA family permit must in these circumstances submit evidence that the EEA national is a qualified person.

I hope that this information is helpful to you.

Yours sincerely,

European Operational Policy Team
UK Border Agency

[Directive/2004/38/EC]

Super super news!

Reply to this email with a copy of each of your refusals and with the letter from the ECM. Explain clearly that you have been refused three times by the embassy, and that the ECM reviewed the refusals and did not issue the required visa.

Explain that you need their immediate assistance in correcting the situation, which has preventing you and your wife from exercising your right of free movement to the UK.

cc: the embassy at the email address use by the ECM.

[Jambo]

I agree.

I would also make a formal complaint as the post staff need to get serious training about EEA regulations. This might not benefit your case but should help others in future.

[Directive/2004/38/EC]

First step is to ensure the EEA FP is issued NOW.

Second step is to complain formally and ask for a very significant amount of compensation. There are provisions in EU law for compensation. But wait until you are in the UK before starting that, assuming this email can break the log jam.

[donald_f]

I have been told that the European Operational Policy Team do not comment on individual cases, or ECO/ECM decisions.
http://ukimmigrationspecialist.com/2012/04/13/ask/

I am planing to reply to the ECM's email and attaching the policy teams email.

Please suggest

[EUsmileWEallsmile]

I am planing to reply to the ECM's email and attaching the policy teams email.

The policy teams email confirms what's been said all along this thread. Don't hesitate to reply to ECM with this information.

[Directive/2004/38/EC]

I would tend to first reply to the policy team email, attaching the refusals and the ECMs' email, and ccing the embassy.

This makes the embassy initially just a passive observer of what is happening on the email chain.

I would then send a separate email directly to the embassy (24 hours later), asking them to get involved and finally issue the visa.

[donald_f]

I have replied to the ECM's email quoting the Policy teams email with the attachment and marked the policy team in the email.

Apart from this I have separately emailed the policy team attaching the refusals and the ECM's email reply's.

[donald_f]

Thank you for your email dated 18 December regarding your concerns over the consideration of your application. The European Operational Policy Team deal with policy related enquiries only and are unable to assist or advise in individual applications.

However, I will contact the team responsible for overseas posts and highlight the correct policy to them, which should be helpful. I note that you have also contacted the visa post – my colleagues in Mumbai should respond to your enquiry directly.

Yours sincerely,

European Operational Policy Team
UK Border Agency

[Directive/2004/38/EC]

Did send the European Operational Policy Team a copy of the three refusals and of the ECM's email?

[donald_f]

Did send the European Operational Policy Team a copy of the three refusals and of the ECM's email?

Yes

[Jambo]

From the sounds of it, someone is going to explain the requirements to the ECM. Hopefully, he will acknowledge his wrong doing and end this saga.

[donald_f]

Some suggestion I have received

I'd suggest that you get in touch with UKBA's regional operations manager (ROM) and/or the regional director (RD) for South Asia too (for example, by sending him a separate e-mail or by copying him in). If you aren't already aware, ROMs are ultimately responsible for the ECMs (ECMs report to him and, perhaps more importantly, at least in an ECM's eyes, they get their appraisals from him). RDs oversee an entire region, in your case South Asia, and manage the ROMs. If there's anyone that ECMs listen to, it's their ROM (and/or their RD). In practical terms, the ROM is your best bet because he's the one that can get things done fairly quickly. He is literally the boss of the ECMs and, if he tells them to do something, they will do so. With your correspondence from the policy unit, there is every chance that he will tell the ECM to get on with it asap. I'm afraid that, as with ECOs and ECMs for that matter, these folks change Post every so often but, as recently as June, Tony Williams was the ROM, and Tom Greig was the RD responsible for Mumbai.