ESC
Welcome to immigrationboards.com!
Moderators: Casa, Amber, archigabe, batleykhan, ca.funke, ChetanOjha, EUsmileWEallsmile, JAJ, John, Obie, push, geriatrix, vinny, CR001, zimba, meself2, Administrator
^ agreed with this... nothing other than reporting restrictions on my wife since 2010... and the staff at reporting centre basically confirm this... (it all goes to the fact that if they attempt to remove, it can go to court - and human rights etc... no action = no court)Greenie wrote: They won't remove the mother of a British child.
- and if they do do this, remember to complain hard and loud about it...) - also, just remember to make it clear that your wife is the primary carer for your child... (she takes to all dr apts, school deals with partner, ETC)Thanks for all your help and advise wiggsy your my hero me and my partner are not married yet does this make a difference?.wiggsy wrote:^ agreed with this... nothing other than reporting restrictions on my wife since 2010... and the staff at reporting centre basically confirm this... (it all goes to the fact that if they attempt to remove, it can go to court - and human rights etc... no action = no court)Greenie wrote: They won't remove the mother of a British child.
plus the fact is... EU law states that Parent of EU citizen has the right to reside and work in the home country of the eu child. - so they cant do anything... - IF UKBA do turn up just remember to have all information on the case of Zambrano to hand to confirm your partners right to reside... along with the april charging document which clearly states that EU EEA document of registration is not mandatory.
(you dont want them to complete an overstayers form, or stick your wife onto an IS96...
and finally - DONT WORRY... Dont let them ruin your lives.
I honestly hope your FLR(o) goes through. Please post your progress with it... *It is* your best route! - apparently zambrano wont give you the 10 yr family life route for ILR either...
I am considering as to whether we will go to Ireland and i work there for a while.... or attempt another FLR application -
esp on the no ILR or PR on Zambrano route. - however, we will wait for a DRC before leaving the country (so as to ensure we can visit famiy/friends in the UK without problems)
with the FLR application, considering our last one was before the ECJ c34/09 ruling, which gave the right to reside... it should hopefully be different for your partners application... on the basis that your partner currently have a legal right to reside within the UK (Zambrano) - even though she hasnt registered with UKBA for this right (the right is automatic)
http://www.ein.org.uk/blog/how-zambrano ... egulationseast579 wrote: Thanks for all your help and advise wiggsy your my hero me and my partner are not married yet does this make a difference?.
It is clear that this aspect of the Zambrano judgment has informed the drafting of exception EX.1 in the immigration rules, albeit within the deeply flawed framework of UKBA's attempt to predetermine and codify the circumstances under which Article 8 will be breached. That is made clear in the Immigration Directorate Instruction Chapter 8 'Guidance on application of EX1 – consideration of a child's best interests under Appendix FM (family rules)' where Zambrano is specifically referenced (paragraph 7) to inform the guidance that:
"11. In cases where the decision being taken in respect of the person with parental responsibility would require that person to return to a country outside of the EU then the case must always be assessed on the basis that it would be unreasonable for the child to leave the UK with their parent. In such cases it will usually be the case that the person with parental responsibility will be allowed to stay in the UK with the child provided that there is satisfactory evidence of a genuine and subsisting relationship."
its all over the place... lots of information to read through, google it..east579 wrote: Also can you point me to all the stuff i will need as reference encase they come knocking and is it possible for you to highlight the parts that are relevant .
its not advice from me - i only got this info from this forum, which sparked a shed load of googling.[/u]east579 wrote: I cant thank you enough for all the advise you have given me.
http://www.ukba.homeoffice.gov.uk/eucit ... erivative/Do you need to apply?
You do not need to obtain documents confirming your derivative right of residence in the UK. However, you may be inconvenienced if you do not obtain this confirmation, as:
you may have difficulty proving that you are lawfully resident in the UK;
if you leave the UK, you will usually need to obtain an EEA family permit before returning here; and
you may find it difficult to obtain or change employment.
(and produce this along with the quote above - albeit from the Immigration rules guidance regs on EX.1. - it states that if the non-eea national has to leave the EU it should be stated that the child would be expected to leave also... - every little helpsTypes of derivative rights of residence
A person may qualify for a derivative right of residence in one of the following categories:
as the primary carer of a British citizen child or dependent adult, where requiring the primary carer to leave the UK would force that British citizen to leave the EEA;
)that along with the fact you currently have your FLR(o) application in, should hopefully help stop any unwanted problems...On those grounds, the Court (Grand Chamber) hereby rules:
Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
From: me...
To: "UKBACustomerComplaints@homeoffice.gsi.gov.uk" <UKBACustomerComplaints@homeoffice.gsi.gov.uk>; "liverpooleuro.passportreturns@homeoffice.gsi.gov.uk" <liverpooleuro.passportreturns@homeoffice.gsi.gov.uk>; "EREC@homeoffice.gsi.gov.uk" <EREC@homeoffice.gsi.gov.uk>
Cc: "Nadhim.zahawi.mp@parliament.uk" <Nadhim.zahawi.mp@parliament.uk>
Sent: Saturday, 30 March 2013, 6:28
Subject: Return of Passports / Further Information
Mr ...
[address]
Sat 30th March 2013.
FAO: Paula Scott / UKBA
CC: Nadhim Zahawi
* MP Ref: nnn
* Home Office Ref: (Its a long reference) - mmmm - Royal Mail Package: mmm (Delivered on 15th Jan 2013) HO Ref: mmm and Case ID: mmmm
Perhaps (well, no, I am actually pretty sure that) the following should also be taken into consideration, when UKBA consider Zambrano...
The United Nations Declaration of the Rights of the Child
http://www.un.org/cyberschoolbus/humanr ... /child.asp
Specifically Article's 1 and 6.
In addition to the specific statement: "to the end that he may have a happy childhood ". (We all know children prosper with both parents present.
6. The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable.
As I a request has already been sent for my wifes application to be processed with urgency, and you have recieved numerous requests for our travel documents etc to be returned, I cannot see the hold up with complying with either a written statement of why you will not process the application with urgency, or indeed process the appliction.
Please inform us of what stage my wifes application is currently being held...
Obviously, with all of the evidence, and the level of dependancy on my wife by three British Citizens (two children and one adult - myself) I do not see what the issue is with confirming her right to reside by way of a DRC.
And even more so, As obviously, my wife is the Primary Carer for both children. The Declaration of the Rights of the Child states that you cannot seperate the mother and young child.
I understand that UKBA are also aware that should the application for a DRC be refused, upon appeal the ruling would be over turned. - following on from the guidance refered to in previous messages in relation to the Ex1 for the FLR application...
So, Once again, I repeat:
Please return all documents held by UKBA. This is not a request to cancel the application for confirmation of my wifes right to reside but simply to return all documents held. Including Passports / Marriage Certificate / Birth Certificates ETC.
The United Nations INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS states in Article 12 the following:
Article 12
1.Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2.Everyone shall be free to leave any country, including his own.
3.The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4.No one shall be arbitrarily deprived of the right to enter his own country.
Once again I refer to the restrictions imposed upon my wife stating that she must reside at [our address]. This appears to breach Article 12.1
And Article 12.2 appears to be broken by UKBA withholding our passports. A person is not free to leave a country if they cannot obtain their passport, which has been held unlawfully.
Yours,
xxxx
From: me....
To: me....; "UKBACustomerComplaints@homeoffice.gsi.gov.uk" <UKBACustomerComplaints@homeoffice.gsi.gov.uk>; "liverpooleuro.passportreturns@homeoffice.gsi.gov.uk" <liverpooleuro.passportreturns@homeoffice.gsi.gov.uk>; "EREC@homeoffice.gsi.gov.uk" <EREC@homeoffice.gsi.gov.uk>
Cc: "Nadhim.zahawi.mp@parliament.uk" <Nadhim.zahawi.mp@parliament.uk>
Sent: Saturday, 30 March 2013, 15:08
Subject: Re: Return of Passports / Further Information
name
address
Sat 30th March 2013.
FAO: Paula Scott / UKBA
CC: Nadhim Zahawi
* MP Ref: ccccc
* Home Office Ref: (Its a long reference) - mmmm - Royal Mail Package: mmm (Delivered on 15th Jan 2013) HO Ref: mmm and Case ID: mmmm
In addition,
Arcticle 24 (of charter of fundamental rights of EU)
Rights of a Child:
Reads as follows:
2. In all actions relating to children, wheather taken by public or
private instistions,the child's best interest must be a primary
consideration.
3. Every child shall have the right to maintain a personal
relationship on a regular basis and a direct contact with both his
or her both parents, unless that is in contrast to his or her best
interests.
yours, me...
From: me......
To: ......me.....; "UKBACustomerComplaints@homeoffice.gsi.gov.uk" <UKBACustomerComplaints@homeoffice.gsi.gov.uk>; "liverpooleuro.passportreturns@homeoffice.gsi.gov.uk" <liverpooleuro.passportreturns@homeoffice.gsi.gov.uk>; "EREC@homeoffice.gsi.gov.uk" <EREC@homeoffice.gsi.gov.uk>
Cc: "Nadhim.zahawi.mp@parliament.uk" <Nadhim.zahawi.mp@parliament.uk>
Sent: Thursday, 4 April 2013, 5:21
Subject: Futher information...
Mr ...
[address]
FAO: Paula Scott / UKBA
CC: Nadhim Zahawi
* MP Ref: xxxx
* Home Office Ref: (Its a long reference) - mmmm - Royal Mail Package: mmm (Delivered on 15th Jan 2013) HO Ref: mmm and Case ID: mmmm
So, another day passes, and another day without either my passport on my doormat, or a response from UKBA.
I thought I would send a very useful link, which is a clear reading of the UN's rights of a child...
http://www.crae.org.uk/rights/uncrc.html
I particularly like Article 7, point 2.... stating BOTH parents...
"Does the UN Convention on the Rights of the Child apply in the UK?
YES, the UK Government agreed to make all laws, policy and practice compatible with the UN Convention on the Rights of the Child when it ratified it on 16 December 1991 (though it registered some reservations which have since been removed). As international law, the Convention is meant to be followed and should be referred to by courts, tribunals and other administrative processes when making decisions that affect children."
Obviously, a Zambrano ruling is based upon children therefore this very strong international LAW should bear a lot of weight within any response to my wifes application as the primary carer for myself, and our two children.
Yours,
....
From: meee
To: "Rob.Whiteman@homeoffice.gsi.gov.uk" <Rob.Whiteman@homeoffice.gsi.gov.uk>
Cc: "EREC@homeoffice.gsi.gov.uk" <EREC@homeoffice.gsi.gov.uk>; "UKBACustomerComplaints@homeoffice.gsi.gov.uk" <UKBACustomerComplaints@homeoffice.gsi.gov.uk>; "liverpooleuro.passportreturns@homeoffice.gsi.gov.uk" <liverpooleuro.passportreturns@homeoffice.gsi.gov.uk>; "Nadhim.zahawi.mp@parliament.uk" <Nadhim.zahawi.mp@parliament.uk>
Sent: Saturday, 6 April 2013, 4:44
Subject: Complaints - Updated List.... Including breaches of FOI Act by UKBA...
name
address
Date: As Emailed
FAO: Rob Whiteman
CC: Nadhim Zahawi / Paula Scott
* MP Ref: xx
* Home Office Ref: (Its a long reference) - Mrs xx - Royal Mail Package: xx(Delivered on 15th Jan 2013) HO Ref: xx and Case ID: xx
Dear Mr Whiteman,
I am writing today in relation to a number of complaints that I have with the service of your staff, both in the European team, and the Solihull Reporting Centre.
As outlined numerous times previously, in emails to UKBACustomerComplaints@homeoffice.gsi.gov.uk, liverpooleuro.passportreturns@homeoffice.gsi.gov.uk and EREC@homeoffice.gsi.gov.uk I requested the passports of myself, my daughter and my wife be returned back in Jan 2013. This has not been done.
I have highlighted numerous laws which state that a government cannot withhold travel documents, and prevent a person leaving any country - even his own. UKBA fail to respond to this.
My wife has been discriminated against on a number of occasions when she has been to her reporting sessions, and in various FOI requests that I have made, it is clear that a large number of your staff have the same discriminative attitude.
My wife made an application to remain in the country in 2010, which was reliant upon article 8 of the ECHR. This application was refused with no right of appeal. However, as the application was insistant upon my wifes need to leave the UK this should have attracted a right of appeal.
Further to this, I have been a worker in the EEA (Finland) in 2004. I worked for the Espoo Institute of Business. My wife submitted an EEA2 application to Euro (details above), which included a letter from my employer - the assistant principle at the school. I outlined that I have been active in the EEA and that further to Directive 2004/38/EC my wifes application should also be viewed as the spouse of an EEA national - I draw attention to the memo attached in Annex A of your FOI response 23660 (Available here: https://www.whatdotheyknow.com/request/ ... 023660.pdf
-----
4. Legal advice has clarified that the British sponsor in a Surinder Singh case does not need to prove that s/he continues to be a worker or self-employed person upon his/her return to the United Kingdom. The UK national is only required to show that s/he was a worker or self-sufficient person before returning to the United Kingdom. The UK national is not required to be a qualified person under the Regulations following his return to the UK.
-----
I have supplied evidence that I have been a worker in another EEA member state, yet a response to the DWP about my wifes case states that she currently has an application in for Derivative Residence under the EEA regulations - the response omits the fact that she also has an application as the partner of an EEA National (which under directive 2004/38/EC I must be treated as an EEA National upon my return - The directive states no time limit for when this treatment ends! - and infact Case ) - I am stating again... My wifes application should be treated under Singh, and Zambrano. I would appriciate written acknowledgement of this message. - and written confirmation that my wifes application shall be treated as the following:
1) The family member of an EEA National (Myself)
2) The Primary Carer of *THREE* British Citizens - Zambrano.
2a) daughters name
2b) baby sons name
2c) Myself - name
Any such refusal of my wifes right to reside in the UK should be based on all four points above! - Including a full explaination of how you have considered the rights of the children in a refusal...
I note: recent UK case law has actually stated that the time between the economic activity within Europe and return to the UK does not matter. I'm more than willing to take any possible refusal to court to add further case law. I can however provide numerous case law examples which should be considered by yourselves - as a court of law would certainly consider them.
I have given you written permission to contact my GP should further information be required as to my personal health, or to contact myself and I can forward the information on to yourselves.
The 'Evidential Flexibility' policy states that should evidence be available and you require it, you must give the applicant sufficient chance to provide the evidence. Evidence of our childrens dependancy upon my wife can be provided should further evidence be required... Evidence of my dependancy upon my wife can be provided should it be required. This can also be obtained from my GP directly in the form of medical records - which I have previously given written permission to obtain. (Note: I have also sent a copy of my Blue Badge into yourselves, which I'm sure everybody in the department is aware of the qualifying factor to obtain, along with my prescription list with a list of medications I am currently taking).
The UKBA have failed to respond to many FOI requests posted by myself and others. Infact the UKBA have breached the FOI Act 2000 in a very recent request by myself.
I draw your attention to: https://www.whatdotheyknow.com/request/ ... _residence
I requested very specific documentation under the terms of the Freedom of Information Act which has not been complied with.
This is not the only instance of when I have failed to recieve a response to a very real freedom of information request. I understand that the UKBA previously held Executive Agency status that has now been lost. However, this did not give UKBA power to break laws.
A list of other FOI requests can be found here:
https://www.whatdotheyknow.com/request/ ... ing-374264 < UKBA failed to respond, request from janurary...
https://www.whatdotheyknow.com/request/ ... ing-373837 < your own internal review concluded that the response failed to meet the requirements of the FOI act
https://www.whatdotheyknow.com/request/ ... ing-373723 < ukba fail to respond, request from janurary
https://www.whatdotheyknow.com/request/ ... ing-372940 < the request was sparked by previous request, which stated that no further guidance was held on the issuance of a COA... If this statement was correct, then by the legislation of FOI Act, a response should of been made swiftly (this can even mean FASTER than 20 working days - as outlined previously ^) -should the guidance requested in this FOI request exist, it means the response to the initial request withheld information requested, and illegally covered up the information being held...
https://www.whatdotheyknow.com/request/ ... ing-370844 < click on "show quoted sections" i draw attention to the response of UKBA on 28th Feb - look at the quoted email from UKBA - Subject Line - Internal review of Freedom of Information request - EEA Family Permits (Wife & Mother of British Citizens .... UKBA failed on its own obligation to conduct an internal review of my request within the timelines it publishes...
https://www.whatdotheyknow.com/request/ ... ing-261299 < requested information on what is considered as a public fund as per ukba and its statement of "No recourse to public funds" and a list of benefits which the partner / spouse of a british citizen is able to access... - as explained on your own guidance... - this request was ignored, despite further reminders...
https://www.whatdotheyknow.com/request/ ... ing-261297 < another FOI request ignored - in relation to Universal Credits and removal of Working / Child tax credits...
https://www.whatdotheyknow.com/request/ ... ing-369110 < your response was late, and your internal review played down the fact that your response was late... a late response is still a breach of the FOI Act... a day or a month, its a breach... - If my car insurance expires today, and I drive my car on a public highway tomorrow... Can I use the excuse "Oh, its only a day" when I go before a judge for driving without insurance?
Now, with the complaints above, I would expect a full written response. My address is included above. Should further information be required, I would be more than happy to response by either email or post.
Yours,
Mr mmmmmm
From: me.....
To: "UKBACustomerComplaints@homeoffice.gsi.gov.uk" <UKBACustomerComplaints@homeoffice.gsi.gov.uk>; "liverpooleuro.passportreturns@homeoffice.gsi.gov.uk" <liverpooleuro.passportreturns@homeoffice.gsi.gov.uk>; "EREC@homeoffice.gsi.gov.uk" <EREC@homeoffice.gsi.gov.uk>
Cc: "Nadhim.zahawi.mp@parliament.uk" <Nadhim.zahawi.mp@parliament.uk>
Sent: Saturday, 6 April 2013, 2:25
Subject: Re: Futher information...
name
address
Date: As Emailed
FAO: Paula Scott / Rob Whiteman
CC: Nadhim Zahawi
* MP Ref: nnn
* Home Office Ref: (Its a long reference) - Mrs nnnLL - Royal Mail Package: c (Delivered on 15th Jan 2013) HO Ref: c and Case ID: c
So, yet more days pass and still I am without either my passport on my doormat, or a response from UKBA. My passport was requested back in Jan 2013. Surely even UKBA (or should I refer to you as the Immigration and Visa Service now?) would realise that withholding my passport for such a length of time breaches both my rights afforded by UN Treaties (International Law) and EU Directive 2004/38/EC.
I refer to my rights as being breached: 1) The right for myself to leave any country, including "my own"... (previously sent details of this treaty)...
2) Breach of my right to travel across Europe.
In addition to this, you are also breaching the rights of my children - so this is yet another message DEMANDING YOU RETURN OUR DOCUMENTS!
In addition to this, I thought I would send yet another very useful link to yourselves... obviously, you should already be well aware of this though... http://www.legislation.gov.uk/ukpga/2009/11/section/55
Borders, Citizenship and Immigration Act 2009
Section 55 - Duty regarding the welfare of children
(1)The Secretary of State must make arrangements for ensuring that—
(a)the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b)any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2)The functions referred to in subsection (1) are—
(a)any function of the Secretary of State in relation to immigration, asylum or nationality;
(b)any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c)any general customs function of the Secretary of State;
(d)any customs function conferred on a designated customs official.
(3)A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).
(4)The Director of Border Revenue must make arrangements for ensuring that—
(a)the Director's functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b)any services provided by another person pursuant to arrangements made by the Director in the discharge of such a function are provided having regard to that need.
(5)A person exercising a function of the Director of Border Revenue must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (4).
(6)In this section—
“children†means persons who are under the age of 18;
“customs functionâ€, “designated customs official†and “general customs function†have the meanings given by Part 1.
(7)A reference in an enactment (other than this Act) to the Immigration Acts includes a reference to this section.
From: me....
To: me....; "Rob.Whiteman@homeoffice.gsi.gov.uk" <Rob.Whiteman@homeoffice.gsi.gov.uk>
Cc: "EREC@homeoffice.gsi.gov.uk" <EREC@homeoffice.gsi.gov.uk>; "UKBACustomerComplaints@homeoffice.gsi.gov.uk" <UKBACustomerComplaints@homeoffice.gsi.gov.uk>; "liverpooleuro.passportreturns@homeoffice.gsi.gov.uk" <liverpooleuro.passportreturns@homeoffice.gsi.gov.uk>; "Nadhim.zahawi.mp@parliament.uk" <Nadhim.zahawi.mp@parliament.uk>
Sent: Saturday, 6 April 2013, 16:56
Subject: Re: Complaints - Updated List.... Including breaches of FOI Act by UKBA...
Further to my previous email today, I also highlight a relevant section of Directive 2004/38/EC.
--------------
Article 4
Right of exit
1. Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State.
2. No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1 applies.
3. Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality.
-------------
I also highlight the fact that Chapter 10 of the EU handbook states that if a request to treat an application as a priority is not to be completed, then this must be explained in writing. Neither myself nore my wife have received a response confirming, or refusing to treat her application with priority. Therefore, please confirm the status of her application.
Yours
nnnnnnnn
Subject: Re: Complaints - Updated List.... Including breaches of FOI Act by UKBA...
From: meee....
To: Rob.Whiteman@homeoffice.gsi.gov.uk; EREC@homeoffice.gsi.gov.uk;
Cc: UKBACustomerComplaints@homeoffice.gsi.gov.uk; liverpooleuro.passportreturns@homeoffice.gsi.gov.uk; Nadhim.zahawi.mp@parliament.uk;
Date: Tuesday, 9 April 2013, 1:23
name
address
Date: As Emailed
FAO: Rob Whiteman
CC: Nadhim Zahawi / Paula Scott
* MP Ref: xxxx
* Home Office Ref: (Its a long reference) - xxx - Royal Mail Package: xxxx (Delivered on 15th Jan 2013) HO Ref: xxx and Case ID: xxxxx
Dear Mr Whiteman / Euro,
Further to my previous messages of 6th April 2013, which have again been ignored (I recieved a response stating that I would receive a response the next day from Rob Whitemans email address - this has not happened?)...
I draw attention to the ruling of case C-256/11 http://curia.europa.eu/juris/document/d ... cid=106180
The ruling was:
1. European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.
See the key wording that I have underlined for yourselves. As explained previously, I have also demonstrated to UKBA the fact that I have indeed exercised my right to freedom of movement within the EU when I worked in Finland. This therefore means that the ruling of this case cannot be relied upon to prevent my rights as an EU citizen to allow my wife to reside in the United Kingdom under Directive 2004/38/EC as the Family Member of an EEA national. Should documentation be required from myself to prove that I have been residing within the UK since my return from Finland under the Directive rules, I can provide numerous P60's, Tax Returns, P45s, Payslips, College Letters, ETC all showing that from the point that I returned from Finland, I have been qualified under one of the following categories:
- Worker
- Self Employed
- Job Seeker
- Student
With my current status in the UK standing as a worker.
Although, the following document, in response to FOI request 23660
https://www.whatdotheyknow.com/request/ ... 0.pdf.html
Confirms that such documentation is not required...
Yours
Mr....
Wiggsy had to setup a new account lost my password, just to let you know we received a letter from my partners solicitor stating that the FLR(O) application has been refused with no right of appeal.wiggsy wrote:inform them u r working now too...... Can only helpas i have just got back into full time employment so don't have much time.
She isnt my wife greenie she is my partner will this make a differance?.Greenie wrote:they can't remove your wife without making a decision to remove her, which will attract a right of appeal. I am sure your solicitor will advise you on how to proceed.
Sadly, Im not all that supprised the application was refused. Most of the staff at UKBA are a bunch of egits, to put it politely.east579new wrote:She isnt my wife greenie she is my partner will this make a differance?.
I highly suspect your partners refusal will read quite simular........
You established a relationship in full knowledge that you did not have valid leave to so and that the fact that you would have to return to Indonesia at some point. Any relationships developed can still be maintained through modern means of communication.
There are no compelling reasons as to why your unmarried partner and your daughter cannot return with you to Indonesia. It is also noted however, that you continued to established your private and family life while you illegally overstayed, making no effort to regularise your immigration status in the United Kingdom until 20th May 2010.
......
It is considered that any interference to your family life will be limited, proportionate and in accordance with the law.
Is the interference in pursuit of one of the permissible aims set out under Article 8(2)?
A person’s rights under Article 8 are qualified by the provisions of paragraph 8(2). ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.
Is the interference proportionate to the permissible aim?
Taking into account the factors addressed above, it is considered that any interference is proportionate because you will be reunited back to Indonesia, your place of birth and any interference is limited as your relocation to Indonesia will be temporary.
....
However, in your case, no evidence has been provided to show that by returning to Indonesia you could not maintain ties with members of your family who continue to reside in the United Kingdom through modern channels of communication. This consideration also takes into account the decision in Beoko-Betts.
......
However, in your case, you have remained in the United Kingdom without basis of stay following the expiration of your leave in which you continued to establish your private and family life, while you unlawfully overstayed.
..........
We therefore, conclude that there are significant differences between the specifics of the above case and the circumstances of your case. Under section 82 of the Nationality, Immigration and Asylum Act 2002, there is no right of appeal against a refusal to grant leave to a person who had no leave at the time of their application. In view of the fact you have failed to show that you had valid leave to enter or remain in the United Kingdom when you made your application, you are not entitled to appeal against this decision. If you have evidence that you had valid leave to enter or remain in the United Kingdom at the time of your application you should submit that evidence imrnediately.
Your application for leave to remain in the United Kingdom has been refused and you no longer have any known basis of stay here. There is no right of appeal against this refusal. You must now make arrangements to leave the country. You can contact the UKBA office at Midlands Enforcement Unit, Sandford House, 41 Homer Road, Solihull, B91 3QJ on 0121 713 3229 who can help you with these arrangements.
Yours sincerely,
Suma Arnin
ICC2
(a) Cases where the primary carer is being removed or deported to a country outside the EEA, but a Zambrano right is refused on the basis that the British citizen will be able to continue to live in the EEA with another parent
In some circumstances the case worker will refuse to recognise that the adult migrant has a right to residence here on the basis of Zambrano because the child or disabled adult could remain in the UK with another parent or carer and would not therefore be compelled to leave the EEA. Where a refusal is made on this basis, and the case worker is then considering the Article 8 rights of the primary carer, they cannot conclude that there will be no interference with family life because the family can live together as a family unit in a country outside the EEA. To do so would directly conflict with the basis upon which recognition of the Zambrano right had been refused.
(b) Cases where the primary carer is being removed or deported to a country within the EEA
In contrast with the position set out above, where the Zambrano claim is being refused on the basis that the primary carer is being removed to an EEA country in which the British citizen can also reside it will in principle be possible to assess the Article 8 claim on the basis that there will be no interference with family life because the family can continue their family life in the EEA country to which the primary carer is to be removed.
That means in the case of refusal the caseworkers are meant to consider article 8,which they are not doing.wiggsy wrote:https://www.whatdotheyknow.com/request/ ... ing-392550
It appears that if your Ex.1 application fails then Judicial Review is possible due to the Sec of State not excersising her power of discretion in accordance with published policies.
(a) Cases where the primary carer is being removed or deported to a country outside the EEA, but a Zambrano right is refused on the basis that the British citizen will be able to continue to live in the EEA with another parent
In some circumstances the case worker will refuse to recognise that the adult migrant has a right to residence here on the basis of Zambrano because the child or disabled adult could remain in the UK with another parent or carer and would not therefore be compelled to leave the EEA. Where a refusal is made on this basis, and the case worker is then considering the Article 8 rights of the primary carer, they cannot conclude that there will be no interference with family life because the family can live together as a family unit in a country outside the EEA. To do so would directly conflict with the basis upon which recognition of the Zambrano right had been refused.
(b) Cases where the primary carer is being removed or deported to a country within the EEA
In contrast with the position set out above, where the Zambrano claim is being refused on the basis that the primary carer is being removed to an EEA country in which the British citizen can also reside it will in principle be possible to assess the Article 8 claim on the basis that there will be no interference with family life because the family can continue their family life in the EEA country to which the primary carer is to be removed.
@Kofi, this is guidance from the IDI's (immigration rules) but i believe it relates to the EEA application too! - I have it in my package ready for court should need itkofi75 wrote:That means in the case of refusal the caseworkers are meant to consider article 8,which they are not doing.wiggsy wrote:https://www.whatdotheyknow.com/request/ ... ing-392550
It appears that if your Ex.1 application fails then Judicial Review is possible due to the Sec of State not excersising her power of discretion in accordance with published policies.
(a) Cases where the primary carer is being removed or deported to a country outside the EEA, but a Zambrano right is refused on the basis that the British citizen will be able to continue to live in the EEA with another parent
In some circumstances the case worker will refuse to recognise that the adult migrant has a right to residence here on the basis of Zambrano because the child or disabled adult could remain in the UK with another parent or carer and would not therefore be compelled to leave the EEA. Where a refusal is made on this basis, and the case worker is then considering the Article 8 rights of the primary carer, they cannot conclude that there will be no interference with family life because the family can live together as a family unit in a country outside the EEA. To do so would directly conflict with the basis upon which recognition of the Zambrano right had been refused.
(b) Cases where the primary carer is being removed or deported to a country within the EEA
In contrast with the position set out above, where the Zambrano claim is being refused on the basis that the primary carer is being removed to an EEA country in which the British citizen can also reside it will in principle be possible to assess the Article 8 claim on the basis that there will be no interference with family life because the family can continue their family life in the EEA country to which the primary carer is to be removed.
Nice one Wigsywiggsy wrote:@Kofi, this is guidance from the IDI's (immigration rules) but i believe it relates to the EEA application too! - I have it in my package ready for court should need itkofi75 wrote:That means in the case of refusal the caseworkers are meant to consider article 8,which they are not doing.wiggsy wrote:https://www.whatdotheyknow.com/request/ ... ing-392550
It appears that if your Ex.1 application fails then Judicial Review is possible due to the Sec of State not excersising her power of discretion in accordance with published policies.
(a) Cases where the primary carer is being removed or deported to a country outside the EEA, but a Zambrano right is refused on the basis that the British citizen will be able to continue to live in the EEA with another parent
In some circumstances the case worker will refuse to recognise that the adult migrant has a right to residence here on the basis of Zambrano because the child or disabled adult could remain in the UK with another parent or carer and would not therefore be compelled to leave the EEA. Where a refusal is made on this basis, and the case worker is then considering the Article 8 rights of the primary carer, they cannot conclude that there will be no interference with family life because the family can live together as a family unit in a country outside the EEA. To do so would directly conflict with the basis upon which recognition of the Zambrano right had been refused.
(b) Cases where the primary carer is being removed or deported to a country within the EEA
In contrast with the position set out above, where the Zambrano claim is being refused on the basis that the primary carer is being removed to an EEA country in which the British citizen can also reside it will in principle be possible to assess the Article 8 claim on the basis that there will be no interference with family life because the family can continue their family life in the EEA country to which the primary carer is to be removed.
Well almost every FOI request i've filed with UKBA so far has given me more "ammo"...kofi75 wrote:Nice one Wigsy
East: I can see just by reading this why your application was probably refused. You are on Job seekers allowance, and child benefits... you are unemployed, (or were at the time of application - if you are working now - did you send in your new employment details and contract?) When I had my interview and meeting with my solicitor the FIRST thing he asked us (me and my partner) was if we were claiming any benefits - it seems to weigh a lot when on applications, I know that having a British child should be the FIRST thing they look at and consider but it says in case law that it will not be the only thing they consider and that if other things outweigh the fact that you have a child (e.g.: claim benefits) like protecting the best interests of Brit society and the economy etc etc blah blah, I don't know the exact wording but in simple terms, they frown upon applicants that are directly or indirectly claiming some sort of benefits. If you are employed now and no longer on any sort of benefits you now have a strong case and you should definitely ask for a reconsideration and/or appeal, your baby is a British citizen and should NOT be separated from his/her mother especially now that he/she is so young (5 months?) and also should not be expected to leave the country as your baby has rights here and of course will be receiving regular shots/jabs the first 3 years of life, your baby is a British citizen and will NOT have the same rights in Brazil. You should argue all this and get yourself a REAL solicitor.east579 wrote:Wiggsy thanks for the reply i will try and answer a few questions to give you a clearer picture and we will take it from there.
1.I am on the birth certificate and my son is a British citizen and nearly 5 months old.
2.i have been dealing with a clac (community legal advice center) and the case worker assured me this was the right form to use (there opinion of course) .
3.My partner is from Brazil and she has been in the UK since 2007 as a student and the visa ran out 2010
3.We have been together since February 2011.
4.I am currently unemployed was made redundant.
5.I asked the case worker about Zambrano but she said FLR(O) would be the better option for now.
6.I am currently trying to find work (easier said than done in todays climate) my jsa, ctc and cb are the only income we have if we are separated my child and partner will have nothing if she gets sent to Brazil she has nowhere to go.
7.UKBA already have biometrics from when she was a student.
I think what you have just said to me is utter rubbish my application was refused because i was on benefits, it wasn’t my application it was my partners next you will be saying its my fault why the economy crashed lol.cookies wrote:East: I can see just by reading this why your application was probably refused. You are on Job seekers allowance, and child benefits... you are unemployed, (or were at the time of application - if you are working now - did you send in your new employment details and contract?) When I had my interview and meeting with my solicitor the FIRST thing he asked us (me and my partner) was if we were claiming any benefits - it seems to weigh a lot when on applications, I know that having a British child should be the FIRST thing they look at and consider but it says in case law that it will not be the only thing they consider and that if other things outweigh the fact that you have a child (e.g.: claim benefits) like protecting the best interests of Brit society and the economy etc etc blah blah, I don't know the exact wording but in simple terms, they frown upon applicants that are directly or indirectly claiming some sort of benefits. If you are employed now and no longer on any sort of benefits you now have a strong case and you should definitely ask for a reconsideration and/or appeal, your baby is a British citizen and should NOT be separated from his/her mother especially now that he/she is so young (5 months?) and also should not be expected to leave the country as your baby has rights here and of course will be receiving regular shots/jabs the first 3 years of life, your baby is a British citizen and will NOT have the same rights in Brazil. You should argue all this and get yourself a REAL solicitor.east579 wrote:Wiggsy thanks for the reply i will try and answer a few questions to give you a clearer picture and we will take it from there.
1.I am on the birth certificate and my son is a British citizen and nearly 5 months old.
2.i have been dealing with a clac (community legal advice center) and the case worker assured me this was the right form to use (there opinion of course) .
3.My partner is from Brazil and she has been in the UK since 2007 as a student and the visa ran out 2010
3.We have been together since February 2011.
4.I am currently unemployed was made redundant.
5.I asked the case worker about Zambrano but she said FLR(O) would be the better option for now.
6.I am currently trying to find work (easier said than done in todays climate) my jsa, ctc and cb are the only income we have if we are separated my child and partner will have nothing if she gets sent to Brazil she has nowhere to go.
7.UKBA already have biometrics from when she was a student.
Hope this helps and also I would just like to state that this is my personal opinion and this is based on my personal experience and what my solicitor has talked me through as I have also applied on FLR(0), I also have a 2.5 year old daughter and a British partner. You will win your appeal! Stay strong and again PLEASE try and get a real solicitor to defend your case! (I am also a south american like your partner)
?? why are you being defensive and rude? I'm not saying it's your fault - I'm saying what my solicitor said - it wasn't me who refused your visa (oh, I'm sorry.. your PARTNERS visa). It's not your application per se but you are responsible for her as you are in a way her sponsor. I'm sorry if you took it the wrong way I was trying to give you some positive support. " it wasn’t my application it was my partners next you will be saying its my fault why the economy crashed lol."?? I don't even know why you reacted this way saying that, I was just saying what it says in case law and grounds of refusal. they're not my laws, and I'm sure many will back me up, I'm sorry if you feel that you need to attack me, then go ahead, I WAS on your side, but seeing that you are totally on the defensive and ready to pounce on anyone who is trying to give you some support and hope then ok.. good luck. :/ jeezeast579new wrote:I think what you have just said to me is utter rubbish my application was refused because i was on benefits, it wasn’t my application it was my partners next you will be saying its my fault why the economy crashed lol.cookies wrote:East: I can see just by reading this why your application was probably refused. You are on Job seekers allowance, and child benefits... you are unemployed, (or were at the time of application - if you are working now - did you send in your new employment details and contract?) When I had my interview and meeting with my solicitor the FIRST thing he asked us (me and my partner) was if we were claiming any benefits - it seems to weigh a lot when on applications, I know that having a British child should be the FIRST thing they look at and consider but it says in case law that it will not be the only thing they consider and that if other things outweigh the fact that you have a child (e.g.: claim benefits) like protecting the best interests of Brit society and the economy etc etc blah blah, I don't know the exact wording but in simple terms, they frown upon applicants that are directly or indirectly claiming some sort of benefits. If you are employed now and no longer on any sort of benefits you now have a strong case and you should definitely ask for a reconsideration and/or appeal, your baby is a British citizen and should NOT be separated from his/her mother especially now that he/she is so young (5 months?) and also should not be expected to leave the country as your baby has rights here and of course will be receiving regular shots/jabs the first 3 years of life, your baby is a British citizen and will NOT have the same rights in Brazil. You should argue all this and get yourself a REAL solicitor.east579 wrote:Wiggsy thanks for the reply i will try and answer a few questions to give you a clearer picture and we will take it from there.
1.I am on the birth certificate and my son is a British citizen and nearly 5 months old.
2.i have been dealing with a clac (community legal advice center) and the case worker assured me this was the right form to use (there opinion of course) .
3.My partner is from Brazil and she has been in the UK since 2007 as a student and the visa ran out 2010
3.We have been together since February 2011.
4.I am currently unemployed was made redundant.
5.I asked the case worker about Zambrano but she said FLR(O) would be the better option for now.
6.I am currently trying to find work (easier said than done in todays climate) my jsa, ctc and cb are the only income we have if we are separated my child and partner will have nothing if she gets sent to Brazil she has nowhere to go.
7.UKBA already have biometrics from when she was a student.
Hope this helps and also I would just like to state that this is my personal opinion and this is based on my personal experience and what my solicitor has talked me through as I have also applied on FLR(0), I also have a 2.5 year old daughter and a British partner. You will win your appeal! Stay strong and again PLEASE try and get a real solicitor to defend your case! (I am also a south american like your partner)
Also as British citizen who has paid into the system and family over the years has paid into the system it is my right to apply and receive any in and out of work benefits that are a available to me and my child.
As for child benefit im not even going to warrant that with a response
