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Many thanks for your email of 18 December 2012 the contents of which have been noted. I draw your particular attention to the relevant sections of the advise provided to you by the UKBA’s European Operational Policy Unit:
The 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)
The above paragraphs do not apply to you as at the material time your sponsor was based in the UK and therefore your application needs to demonstrate that you meet the requirements of regulation 12 of the EEA regulations.
The Entry Clearance Officer has refused your application because your sponsor has not demonstrated she is a qualifying person under regulation 12 which relates to individuals not currently present in the United Kingdom and exercising their treaty rights. The response you have received from the Operational Policy Unit therefore does not contradict our position or the contents of our previous comprehensive responses to you. As such I am satisfied that the decision to refuse you entry clearance was correct. As such I consider the matter now closed.
It is open to you to submit a fresh application and demonstrate that you meet the requirements of admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty of Rome in the United Kingdom.
Appeal .donald_f wrote:Response from the visa section Mumbai
Many thanks for your email of 18 December 2012 the contents of which have been noted. I draw your particular attention to the relevant sections of the advise provided to you by the UKBA’s European Operational Policy Unit:
The 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)
The above paragraphs do not apply to you as at the material time your sponsor was based in the UK and therefore your application needs to demonstrate that you meet the requirements of regulation 12 of the EEA regulations.
The Entry Clearance Officer has refused your application because your sponsor has not demonstrated she is a qualifying person under regulation 12 which relates to individuals not currently present in the United Kingdom and exercising their treaty rights. The response you have received from the Operational Policy Unit therefore does not contradict our position or the contents of our previous comprehensive responses to you. As such I am satisfied that the decision to refuse you entry clearance was correct. As such I consider the matter now closed.
It is open to you to submit a fresh application and demonstrate that you meet the requirements of admission to the United Kingdom by virtue of European Community Law as the family member of a European Economic Area national who is exercising, or wishes to exercise, rights of free movement under the Treaty of Rome in the United Kingdom.
Is it still the case that your wife has never been outside India? If so, I would be inclined to write straight back to the writer and point this out.donald_f wrote:Till date she has not been outside of India. She was born and is still living in India with us. Her Portuguese nationality papers were also processed at the Portuguese consulate (Goa) and some in Lisbon.Jambo wrote:Just to clarify - Was your wife living in India during all the previous applications? Did she at any point move to the UK alone?
The above paragraphs do not apply to you as at the material time your sponsor was based in the UK and therefore your application needs to demonstrate that you meet the requirements of regulation 12 of the EEA regulations.
Till date my wife has not traveled outside of India. The only thing that has changed is now my son is also an EU national, because of UKBA mishandling of our applications.EUsmileWEallsmile wrote:Is it still the case that your wife has never been outside India? If so, I would be inclined to write straight back to the writer and point this out.donald_f wrote:Till date she has not been outside of India. She was born and is still living in India with us. Her Portuguese nationality papers were also processed at the Portuguese consulate (Goa) and some in Lisbon.Jambo wrote:Just to clarify - Was your wife living in India during all the previous applications? Did she at any point move to the UK alone?
The above paragraphs do not apply to you as at the material time your sponsor was based in the UK and therefore your application needs to demonstrate that you meet the requirements of regulation 12 of the EEA regulations.
I am pleased to read that you agree that where an EEA national is not based (or has not been based longer than three months) in the UK, he or she does not need to demonstrate that he or she is a qualified person. You will have noted from my file that my wife (the EEA national) was not (not) based in the UK at the time. In fact, she has never been to the UK. She does not (not) therefore need to demonstrate that she is a qualified person. Here, unfortunately, the ECO erred. Given that you upheld the decision on review, I kindly request you to point out to me which part of my application led the ECO and yourself to believe that my wife was based in the UK, because she was not and there was also nothing in my application to suggest that she was. In fact, in the Refusal Notice, the ECO mentions that "There is no evidence to show that your sponsor is in the UK and/or is genuinely actively seeking employment." Here, the ECO is correct. I did not submit evidence to show that my wife was in the UK because, as outlined above, she has never been to the UK. The ECO further writes "As you are unable to demonstrate that your sponsor is a qualified person I am not satisfied that you are able to demonstrate that, as per the requirements of Regulation 12, your sponsor will be an EEA national residing in the United Kingdom in accordance with the EEA Regulations". Will being the operative word here; she was in India, and has never been to the UK. I also note that the ECO writes that I "failed to submit a copy of my wife's sponsor's Home Office registration. This is a requirement under EEA regulations...". There is no such requirement in the Regulations, and frankly, this leads me to believe that, unfortunately, the ECO has misinterpreted the Regulations.
I fully appreciate the fact that you write that you consider the matter closed. I too would like to close my case as soon as possible. In view of these discrepancies and errors, I kindly request you to review my case once more.
I have also taken account of article 8 of the Human Rights Act. I consider that refusing this
application is justified and proportionate in the exercise of the immigration control. I do not
believe that refusing this application will interfere with famity life, for the purposes of article 8 (1),
as you can continue to enjoy that in India.
Many thanks for your email of 29 December 2012 the contents of which have been noted. The decision to refuse you entry clearance has been reviewed by and Entry Clearance Manager. The decision to refuse you entry clearance has been maintained for the following reasons:
As your sponsor is not, and never has been resident in the United Kingdom you are required to demonstrate that you meet the requirements of regulation 12. The 3 month period upon which you rely relates to those individuals whose sponsor is present in the United Kingdom. As your sponsor is not, and never has been, in the United Kingdom you are therefore required to demonstrate that your sponsor is a qualified person on arrival.
Given the above and the previous comprehensive replies previously given to you, which set out our position in detail, this office will no longer engage in any further communication with you on this matter. It remains open to you to submit a further application, free of charge. I suggest that you submit the necessary evidence to demonstrate that you meet the requirements of admission to the United Kingdom by virtue of European Community Law.
Yours sincerely
Entry Clearance Manager
Casework Team
Well i kind of blame you now for your predicament. It was obvious from their reply on the 18-12 that they had no intention of reviewing their decision, you carried on writing to them. The option was for you to appeal. It is up to you to proceed with the appeal process and prevent further time wastedonald_f wrote:Response from the visa section Mumbai
Many thanks for your email of 29 December 2012 the contents of which have been noted. The decision to refuse you entry clearance has been reviewed by and Entry Clearance Manager. The decision to refuse you entry clearance has been maintained for the following reasons:
As your sponsor is not, and never has been resident in the United Kingdom you are required to demonstrate that you meet the requirements of regulation 12. The 3 month period upon which you rely relates to those individuals whose sponsor is present in the United Kingdom. As your sponsor is not, and never has been, in the United Kingdom you are therefore required to demonstrate that your sponsor is a qualified person on arrival.
Given the above and the previous comprehensive replies previously given to you, which set out our position in detail, this office will no longer engage in any further communication with you on this matter. It remains open to you to submit a further application, free of charge. I suggest that you submit the necessary evidence to demonstrate that you meet the requirements of admission to the United Kingdom by virtue of European Community Law.
Yours sincerely
Entry Clearance Manager
Casework Team
Huh? You blame him for trying more with the local visa office, in addition to having already appealed? Better to just appeal and wait for 6 months?Obie wrote:Well i kind of blame you now for your predicament. It was obvious from their reply on the 18-12 that they had no intention of reviewing their decision, you carried on writing to them. The option was for you to appeal. It is up to you to proceed with the appeal process and prevent further time waste
I hope you are keeping copies of all your correspondence with them (no doubt you are). This story is pretty incredible. You provide them with evidence of their own policy; the say it doesn't count because your wife had been to the UK. You point this out and they ignore their policy.donald_f wrote:Response from the visa section Mumbai
Many thanks for your email of 29 December 2012 the contents of which have been noted. The decision to refuse you entry clearance has been reviewed by and Entry Clearance Manager. The decision to refuse you entry clearance has been maintained for the following reasons:
As your sponsor is not, and never has been resident in the United Kingdom you are required to demonstrate that you meet the requirements of regulation 12. The 3 month period upon which you rely relates to those individuals whose sponsor is present in the United Kingdom. As your sponsor is not, and never has been, in the United Kingdom you are therefore required to demonstrate that your sponsor is a qualified person on arrival.
Given the above and the previous comprehensive replies previously given to you, which set out our position in detail, this office will no longer engage in any further communication with you on this matter. It remains open to you to submit a further application, free of charge. I suggest that you submit the necessary evidence to demonstrate that you meet the requirements of admission to the United Kingdom by virtue of European Community Law.
Yours sincerely
Entry Clearance Manager
Casework Team
Re-reading this, there appears to be a slight flaw in the guidance; I have underlined it above. The guidance could be clearer and include those who intent to travel together to the UK.donald_f wrote:Thank you for your email dated 16th December 2012 in which you have requested advice on applying for an EEA family permit.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.
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
The guidance is subtle but fine. In this particular case both the applicant and the EU citizen are outside of the UK and bolded (1) applies.EUsmileWEallsmile wrote:Re-reading this, there appears to be a slight flaw in the guidance; I have underlined it above. The guidance could be clearer and include those who intent to travel together to the UK.donald_f wrote:Thank you for your email dated 16th December 2012 in which you have requested advice on applying for an EEA family permit.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.
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
This does not mean of course that the EEA family permit should not be issued - of course it should be.
Thank you for email regarding your application for an EEA family permit.
I can confirm that a family member of an EEA national who is seeking to accompany the EEA national to the UK (where that EEA national is not already in the UK, or is in the UK but has been in the UK for a period of less than 3 months), they are not required to demonstrate that the EEA national is a qualified person when making an application for an EEA family permit.
An EEA national who is not in, and has never been to, the UK cannot be a qualified person. This is because in order for an EEA national to be a qualified person in the UK under the Immigration (European Economic Area) Regulations 2006 (as amended), they must be exercising free movement rights in the UK as a worker, self-employed person, self-sufficient person or student. Clearly, it is not possible for a person who is not present in the UK to do this.
I can confirm that persons applying for an EEA family permit as the family member of an EEA national are not required to submit their EEA family member's registration certificate with their application. Where the applicant is applying for an EEA family permit because they will be joining their EEA national family member in the UK and the EEA national has been in the UK for longer than 3 months, the applicant would need to provide evidence that the applicant is a 'qualified person' (that is, that they are exercising free movement rights as set out in the paragraph above). A registration certificate would not be acceptable as evidence of this, because a registration certificate only confirms that the EEA national had a right of residence at the time of application. Therefore, in these circumstances it would be necessary for the applicant to submit recent evidence of the exercise of free movement rights, for example payslips for workers, business accounts and HMRC documents for self-employed persons, etc.
I will highlight your concerns to the department responsible for training and guidance for entry clearance officers.
I hope that this information is helpful to you.
Yours sincerely,
European Operational Policy Team
UK Border Agency
I have all copies of my correspondence with them.EUsmileWEallsmile wrote:I hope you are keeping copies of all your correspondence with them (no doubt you are). This story is pretty incredible. You provide them with evidence of their own policy; the say it doesn't count because your wife had been to the UK. You point this out and they ignore their policy.donald_f wrote:Response from the visa section Mumbai
Many thanks for your email of 29 December 2012 the contents of which have been noted. The decision to refuse you entry clearance has been reviewed by and Entry Clearance Manager. The decision to refuse you entry clearance has been maintained for the following reasons:
As your sponsor is not, and never has been resident in the United Kingdom you are required to demonstrate that you meet the requirements of regulation 12. The 3 month period upon which you rely relates to those individuals whose sponsor is present in the United Kingdom. As your sponsor is not, and never has been, in the United Kingdom you are therefore required to demonstrate that your sponsor is a qualified person on arrival.
Given the above and the previous comprehensive replies previously given to you, which set out our position in detail, this office will no longer engage in any further communication with you on this matter. It remains open to you to submit a further application, free of charge. I suggest that you submit the necessary evidence to demonstrate that you meet the requirements of admission to the United Kingdom by virtue of European Community Law.
Yours sincerely
Entry Clearance Manager
Casework Team
Naturally, continue with your appeal, but also persist in complaining.
To whom exactly have you complained?
