EEA 2 Family Permit refused: Non EEA overstayed

[Premo]

Hi everybody,

[John]

Premo, do you have a valid not-expired official ID card, issued by the French Government? Let's clarify that before dealing with your specific queries.

[Premo]

hi John,

Thanks for you reply.

I do have a valid french ID & a valid passport.

To clarify:

- We are living togther. I am renting and did not apply for any benefits
- I am excercising treaty rights.
- I applied for EEA 1 myself (did not have too). Received EEA 1 residence card

[John]

As you no don't know, the marriage last month changed your wife from being an "extended family member" to "family member". So whilst previously UKBA had to agree that the terms of the EU Directive applied, as a family member her rights come automatically from the terms of the Directive. That is, given that you are exercising EU Treaty Rights in the UK, your wife automatically has those same Treaty Rights.

Or put it another way, the Residence Card, when issued, is merely confirmatory of the rights she already has, and does not give any more rights.

You mention Metock and the terms of that ECJ Judgement confirm that it is irrelevant how the person entered the UK.

If I were you I would not bother to appeal, but simply submit another EEA2 application.

[Premo]

john,

Thanks again.

[John]

Arrh, sorry, I interpreted :-

We provided all they asked for except for valid passport, as it is with held by UKBA and now expired

:- as meaning that is was your passport that had expired, which is why I asked about your French ID Card!

OK, I can see where UKBA are coming from, given reg 17.1.a of the 2006 Regulations mentions "a valid passport", and this is not a UK invention. That is the EU Directive, at Article 10.2.a mentions the same thing.

So yes, I think I would ask for your wife's passport back, and quote Article 5.4 of the Directive at them, namely :-

Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

So to summarise the situation at the moment as I see it, the Directive gives rights to the family member, but also because of lack of valid passport, UKBA cannot be forced to issue a Residence Card. And without the residence Card your wife has no way to convince an employer of the right to work.

[Obie]

Applicants producing other forms of conclusive evidence
Where no valid identity documents are available, for the caseworker to exercise discretion and issue a Residence Card, the applicant must provide sufficiently conclusive evidence to satisfy us that the family member seeking a Residence Card is the person who married the EEA sponsor (e.g. submission of wedding video that conclusively shows that the applicant was the person who actually married the EEA national). If this evidence is not provided with the submitted Residence Card application we should write to the applicant requesting conclusive evidence as to their identity (i.e. a passport, or Home Office ID) or another form of conclusive evidence (e.g. a wedding video). If they fail to produce further evidence, then we would refuse the application. The applicant would have no right of appeal if they had produced no evidence as to their identity or would have a right of appeal under Regulation 26 (3) (b) if they had produced some evidence but we were not satisfied as to the quality of the evidence.


Where the refusal of the Residence Card is on the basis of not being satisfied that the non-EEA national is a family member of an EEA national, but the applicant later produces conclusive evidence to prove they are a family member, reconsideration of the decision to refuse a Residence Card is appropriate. Caseworkers must, however be, satisfied that the EEA national is still exercising their Treaty Rights in the UK at the time of reconsideration.

Strickly speaking, the HO makes provision for people who don't have passport for one reason or the other, they also use discretion in granting Residence Card to people who produce other conclusive evidence they are family member of an EEA national as claimed.

You can show wedding video, driving licence of your wife etc, or HO issued documents, and point out the fact that her passport is with the HO.

I am sure it will not be difficult for your wife to get a passport from her Home country if she tell them the HO has lost the one that was issued to her.

[Premo]

Hi John & Obie,

Thank a bunch for your help and advice so far!

[Premo]

Hi,