FLR(M) Refusal - Appeal

[kostikson]

Dear experts,

Looking for your advice and wondered if someone had similar case.

I was European when we married back in 2012 and wife applied to EEA spouse visa that was granted for 5 years on a basis of our marriage. I then got British passport in 2015 and we've decided to change her visa true FLR(m) route.

Received a refusal today on a basis of breaching the E-LTRP.2.2. Detailed text attached for reference.





One note to make that my wife was pregnant at the time of the application, therefore we didn't fill any kids information for obvious reasons.

What should I do next, accept the basis of refusal and re-apply loosing £800 or appeal. What's the process and can I do it myself, or need an adviser ? My feeling is that advisers will be charging 3 digit number for this case. Should I also contact my MP and how do I get their contact details ?

Thanks for advice in advance, stressful period at the moment with our baby just arrived and trying to manage this case at the same time.

Regards
Konstantin

[manci]

In the refusal letter has your wife been given the right to appeal, the right for administrative review or none of these?

[Casa]

I'll leave you respond to manci's question but in the meantime, to contact your MP, enter your postcode in the link below:

https://www.writetothem.com/

[vinny]

The UKVI's position puts family members in a ridiculous situation.

[manci]

In this particular case the OP may be able to rely on EX.1(a) of Appendix FM.

[kostikson]

I've contacted my MP and catching up with them on Monday. Not sure what to expect from that meeting and what sort of support they could offer.

Letter states that "If you believe we have made an error you can appeal to the First-Teir Tribunal"

Basically the way I read this letter is thank you very much, please sell your house, give up your work and make your way out of this country if you want to stay core with your family .. very disappointed but institution is institution....

[kostikson]

In this particular case the OP may be able to rely on EX.1(a) of Appendix FM.

Sorry manci, didn't quite get it. What does it mean in simple terms ?

[manci]

Your wife's application has been refused by reference to E-LTRP 2.2(b) of Appendix FM:

The applicant must not be in the UK in breach of immigration laws...... unless paragraph EX.1. applies.

EX.1(a) would now apply if you and your wife had a British citizen child.

[kostikson]

Would that be classed as change of circumstances to the application or it has to be proven true the tribunal appeal case ? I guess I have no option to get back to them with the request to provide justification behind their decision due to conflict in their response. Basically they are saying she breached the UK immigration law therefore application has been refused, but you can stay until you EEA residence card due date.

Also does that mean that european route is still open for my wife and she can try to apply for ILR in 2018 ??

[noajthan]

Would that be classed as change of circumstances to the application or it has to be proven true the tribunal appeal case ? I guess I have no option to get back to them with the request to provide justification behind their decision due to conflict in their response. Basically they are saying she breached the UK immigration law therefore application has been refused, but you can stay until you EEA residence card due date.

Also does that mean that european route is still open for my wife and she can try to apply for ILR in 2018 ??

Your wife does not have an 'EEA visa', its a 5 year residence card (RC).
If you wife is a non-EEA citizen she only has a right to remain/reside in UK on the basis of your sponsorship as an EEA citizen.

As you are now British it complicates matters.
Normally British citizens who are dual EEA citizens are not treated as EEA citizens (in this context) in UK law.
And yes, that's the case even before Brexit.

However there is a transitional arrangement (McCarthy) that enables you to continue to be considered as an EEA national and so continue to sponsor your wife.

It all depends when wife applied for any FP she used to enter UK.
And/or on the date of application and date of issue of her current RC.
What were those dates

See more on this vital matter in guidance here:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf

If you are indeed able to use this McCarthy arrangement then yes, wife may stay in UK on current EU migration trajectory.
That is, assuming no other hiccups and no prolonged absences from UK (and that you remain married to each other), your wife may acquire PR on 5th anniversary of residing in UK as your spouse.
So, perhaps sometime in 2017.

Next steps:
Check on RC dates. That is the Willie Wonka golden ticket you need.

Good luck and viva free movement!

[kostikson]

Would that be classed as change of circumstances to the application or it has to be proven true the tribunal appeal case ? I guess I have no option to get back to them with the request to provide justification behind their decision due to conflict in their response. Basically they are saying she breached the UK immigration law therefore application has been refused, but you can stay until you EEA residence card due date.

Also does that mean that european route is still open for my wife and she can try to apply for ILR in 2018 ??

Your wife does not have an 'EEA visa', its a 5 year residence card (RC).
If you wife is a non-EEA citizen she only has a right to remain/reside in UK on the basis of your sponsorship as an EEA citizen.

As you are now British it complicates matters.
Normally British citizens who are dual EEA citizens are not treated as EEA citizens (in this context) in UK law.
And yes, that's the case even before Brexit.

However there is a transitional arrangement (McCarthy) that enables you to continue to be considered as an EEA national and so continue to sponsor your wife.

It all depends when wife applied for any FP she used to enter UK.
And/or on the date of application and date of issue of her current RC.
What were those dates

See more on this vital matter in guidance here:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf

If you are indeed able to use this McCarthy arrangement then yes, wife may stay in UK on current EU migration trajectory.
That is, assuming no other hiccups and no prolonged absences from UK (and that you remain married to each other), your wife may acquire PR on 5th anniversary of residing in UK as your spouse.
So, perhaps sometime in 2017.

Next steps:
Check on RC dates. That is the Willie Wonka golden ticket you need.

Good luck and viva free movement!

Thanks for response, now I realise that my situation is as clear as mud and I should have not apply for UK citizenship until my wife situation sorted ...

dates are as follows:
-TIER 4 Student Visa 25 August 2011 until January 2013 (she entered the country on 19 Sep 2011)
-Married when I was European November 2012
-EEA Residence Card January 2013 until February 2018
-I received UK passport February 2015


From 19 September she will be 5 years in UK.

[noajthan]

Thanks for response, now I realise that my situation is as clear as mud and I should have not apply for UK citizenship until my wife situation sorted ...

dates are as follows:
-TIER 4 Student Visa 25 August 2011 until January 2013 (she entered the country on 19 Sep 2011)
-Married when I was European November 2012
-EEA Residence Card January 2013 until February 2018
-I received UK passport February 2015

From 19 September she will be 5 years in UK.

Now it all depends on date when RC was applied for/issued.

Have you read the linked document to gain necessary background/understanding?
What were those dates for RC?

[kostikson]

Thanks for response, now I realise that my situation is as clear as mud and I should have not apply for UK citizenship until my wife situation sorted ...

dates are as follows:
-TIER 4 Student Visa 25 August 2011 until January 2013 (she entered the country on 19 Sep 2011)
-Married when I was European November 2012
-EEA Residence Card January 2013 until February 2018
-I received UK passport February 2015

From 19 September she will be 5 years in UK.

Now it all depends on date when RC was applied for/issued.

Have you read the linked document to gain necessary background/understanding?
What were those dates for RC?

Quote from the document

"Persons who had applied for an EEA family permit before 16 July 2012
A person who submitted an application for an EEA family permit as the family member of a dual EEA and British citizen before 16 July 2012 will continue to be treated as the family member of an EEA national if both:
- the application results in an EEA family permit being issued (including where this document is issued following a successful appeal)
- the applicant travels to the UK within the 6 month validity period of that EEA family permit"

We applied for RC after 16 July 2012 and I was not British Citizen at that moment neither. Seems like this path is also closed to us....

[manci]

Letter states that "If you believe we have made an error you can appeal to the First-Teir Tribunal"

apart from the above did the letter say on which grounds your wife may appeal?

Note that after a refusal decision there are only 14 days available to appeal.

[noajthan]

Quote from the document

...

We applied for RC after 16 July 2012 and I was not British Citizen at that moment neither. Seems like this path is also closed to us....

It doesn't matter that you weren't BC at the time.
The transitional arrangement applies to those who became BC later and so potentially disenfranchised their spouse.

But unfortunately you applied to late to avail of that lifeline option. So EU route and EU sponsorship of spouse is terminated now.
If anything can be done at all to resolve this its now all about UK domestic route.

[kostikson]

Letter states that "If you believe we have made an error you can appeal to the First-Teir Tribunal"

apart from the above did the letter say on which grounds your wife may appeal?

Note that after a refusal decision there are only 14 days available to appeal.

They've attached ANNEX B that states the right of Appeal

"You have a right if appeal against the decision under section 82 of the nationality, immigration and Asylum act 2002 beacuse the secretary of state has decided to refuse your human rights claim"


Plan to meet with MP tomorrow and explain them my circumstance and Home Office decision, if no support will be provided then probably I will write a complaint letter true complaint service to request justification behind their decision.

Question is now if I don't appeal without 14 days, by stating that I've requested more information to understand grounds for decision can this be classed as a legal reason for missing 14 days appeal window ??

[kostikson]

Quote from the document

...

We applied for RC after 16 July 2012 and I was not British Citizen at that moment neither. Seems like this path is also closed to us....

It doesn't matter that you weren't BC at the time.
The transitional arrangement applies to those who became BC later and so potentially disenfranchised their spouse.

But unfortunately you applied to late to avail of that lifeline option. So EU route and EU sponsorship of spouse is terminated now.
If anything can be done at all to resolve this its now all about UK domestic route.

They way it looks EU is closed and UK is refused ... time to pack my luggage ...

[Obie]

Quote from the document

...

We applied for RC after 16 July 2012 and I was not British Citizen at that moment neither. Seems like this path is also closed to us....

It doesn't matter that you weren't BC at the time.
The transitional arrangement applies to those who became BC later and so potentially disenfranchised their spouse.

But unfortunately you applied to late to avail of that lifeline option. So EU route and EU sponsorship of spouse is terminated now.
If anything can be done at all to resolve this its now all about UK domestic route.

I am not sure a transitional provision can be applied to circumstances that happened in the future.

[manci]

Letter states that "If you believe we have made an error you can appeal to the First-Teir Tribunal"

apart from the above did the letter say on which grounds your wife may appeal?

Note that after a refusal decision there are only 14 days available to appeal.

They've attached ANNEX B that states the right of Appeal

"You have a right if appeal against the decision under section 82 of the nationality, immigration and Asylum act 2002 beacuse the secretary of state has decided to refuse your human rights claim"


Plan to meet with MP tomorrow and explain them my circumstance and Home Office decision, if no support will be provided then probably I will write a complaint letter true complaint service to request justification behind their decision.

Question is now if I don't appeal without 14 days, by stating that I've requested more information to understand grounds for decision can this be classed as a legal reason for missing 14 days appeal window ??

No matter how harsh, the refusal decision was according to the rules. IMHO the meeting with the MP and a complaint are unlikely to lead anywhere. The only element of the decision that could be challenged is the lack of insurmountable obstacles, as claimed by the HO, of you and your wife moving from the UK to Russia. This would depend on your personal circumstances. However, if you and your wife now have a BC child, which you didn't at the time of the original application, then considering EX.1(a) of Appendix FM an FLR(M) application should succeed. She can either appeal (cost£80) or re apply (cost £811). Unless there are some very special circumstances there is no leeway to the appeal timescale, form IAFT-1 must be received by the Tribunal no later than 14 Calendar days after she has been sent the refusal letter.
https://formfinder.hmctsformfinder.just ... 01-eng.pdf

Appeals do take time but your wife is allowed to remain in the UK under her present status until 2018.

[kostikson]

Thanks for that. As far as I understand there is no timeframe for appeal case to be reviewed at all ? How likely is that appeal would go beyond her EEA visa of 2018 ? Is it advisable to have lawyer to prepare appeal or it can be filled in by myself ?

Again there are no guarantees that decision maker will take BC kids into consideration and might just ignore it by stating we breached the UK immigration policy ?!

[Obie]

The court will take it into account for sure, as they are required to under section 117B (6).

[kostikson]

No matter how harsh, the refusal decision was according to the rules. IMHO the meeting with the MP and a complaint are unlikely to lead anywhere. The only element of the decision that could be challenged is the lack of insurmountable obstacles, as claimed by the HO, of you and your wife moving from the UK to Russia. This would depend on your personal circumstances. However, if you and your wife now have a BC child, which you didn't at the time of the original application, then considering EX.1(a) of Appendix FM an FLR(M) application should succeed. She can either appeal (cost£80) or re apply (cost £811). Unless there are some very special circumstances there is no leeway to the appeal timescale, form IAFT-1 must be received by the Tribunal no later than 14 Calendar days after she has been sent the refusal letter.
https://formfinder.hmctsformfinder.just ... 01-eng.pdf

Appeals do take time but your wife is allowed to remain in the UK under her present status until 2018.

Prices went up ...

Fees
If your refusal letter is dated on or before 9 October 2016 it costs:

£80 without a hearing
£140 with a hearing
If your refusal letter is dated on or after 10 October 2016 it costs:

£490 without a hearing
£800 with a hearing

[noajthan]

I am not sure a transitional provision can be applied to circumstances that happened in the future.

Obie, unfortunately for OP its moot without RC at the appropriate time.

However, in the best traditions of fair play, its gratifying to note there is evidence recorded in the forum of HO allowing this transitional to be applied in the cases of later-naturalised Britons.

[Obie]

I accept Home Office may accept lots of things. In fact last week I surprisingly got a PR card for a lady when I had clearly applied for a Retained right of Residence. They lady has clearly not completed 5 years under the regulation in the UK.

My contention is that according to the strict definition of transitional provision, it will make little sensense for a prospective circumstances to be covered by transitional provision.

[manci]

No matter how harsh, the refusal decision was according to the rules. IMHO the meeting with the MP and a complaint are unlikely to lead anywhere. The only element of the decision that could be challenged is the lack of insurmountable obstacles, as claimed by the HO, of you and your wife moving from the UK to Russia. This would depend on your personal circumstances. However, if you and your wife now have a BC child, which you didn't at the time of the original application, then considering EX.1(a) of Appendix FM an FLR(M) application should succeed. She can either appeal (cost£80) or re apply (cost £811). Unless there are some very special circumstances there is no leeway to the appeal timescale, form IAFT-1 must be received by the Tribunal no later than 14 Calendar days after she has been sent the refusal letter.
https://formfinder.hmctsformfinder.just ... 01-eng.pdf

Appeals do take time but your wife is allowed to remain in the UK under her present status until 2018.

Prices went up ...

Fees
If your refusal letter is dated on or before 9 October 2016 it costs:

£80 without a hearing
£140 with a hearing
If your refusal letter is dated on or after 10 October 2016 it costs:

£490 without a hearing
£800 with a hearing

In view of the recent increase in appeal costs, and since you have no experience in appeals and professional help would be costly, the easiest way for your wife to proceed would be just to re-apply (cost still £811).