**URGENT** Upper tribunal rejected appeal

[rahmsye]

Hi got a rejection from the Home Office for my wife non eea I BC when applied for a RC. They have sent me a three page document highlighting the 'facts' as to why I am not eligible. Giving out misinformation or just lying knowingly about us.

sorry for the long post but here is what they said.
I have highlighted in colour some of the more odd and confusing statement.
Thank you for any help

REASONS FOR REFUSAL LETTER
Dear Mrs xxxxxxx
Your application made on 29.11.2016 for a residence card, the family member of a British citizen, [insert name], who has exercised Treaty rights in Ireland has been refused.

What this means for you Direct family members of British citizens who have exercised Treaty rights in another EU member state are not required to apply for documentation to confirm their right to reside in the UK.

However if you have further evidence you have a right to reside in the UK you can make a further application. Information on how to do this is in the next steps section of this letter.
Reasons why your application has been refused

Following consideration under regulation 9 of the Immigration (EEA) Regulations 2016, the Secretary of State has deemed that you have not provided adequate evidence in support of your application to show that you are the direct family member of a British citizen who has exercised their Treaty rights in another EU member state.
In support of your application you have provided the following:
1. Ukraine Passport
2. British Citizen Passport (Sponsor)
3. UK Marriage Certificate
4. DWP letter dated 11.04.2017
5. McDonalds Employment letter dated 08.03.2017
6. McDonalds Temporary Contract dated 14.03.2016
7. Letter stating to be from 'Salsa Dublin' dated 15.05.2016
8. Letter stating to be from 'Tu.llyvale Leisure Centre' undated
9. Rental Agreement for 6 month Tenancy dated 01.12.2015
10. Additional information letter from applicant
11. Notification of Bereavement Discharge
The above evidence has been assessed, however;

You have not provided adequate evidence to show that the residence was genuine, for the following reason(s):
1) You have not demonstrated that the centre of the British citizen's life transferred to [insert F,EA state] - [enter free text to explain].
2) You resided with your British citizen sponsor in [insert YEA state] for a total period of only [insert period].
3) Your accommodation in Ireland was for a short term basis, the renatal agreement shows you only had a 6 month rental agreement.
4) You have provided insufficient evidence of your integration in Ireland apart from two Groupon receipts showing you purchased dance classes. This does not mean that you actually participated in the classes. Also, you provided 2 letters, the first letter stating to be from 'Salsa Dublin' dated 15.05.2016 and the second letter stating to be from `Tullyvale Leisure Centre' both stating that you participated in their activities, however the letters are both very similar in their presentation, both have been word processed and do not appear to be authentic and therefore they are not accepted as evidence of any integration.

5) It is suspected that your residence with your sponsor was in Ireland rather than the UK in order to circumvent immigration law, records show that you applied for Entry Clearance to the 'United Kingdom on two occasions in 2015 — both were refused and you were told the following in your most recent refusal letter dated July 2015 —

"Any future UK visa applications_you make will be considered on their individual meth's, however you are likely to be refused unless:
• _your personal circumstances change significantly between now and jour next application
• you provide compelling new evidence with flour next application"

Both refusal letters referred to the fact that they did not believe you wanted just a short visit to the United Kingdom. It is noted that you then went to Ireland.

In order for your British citizen sponsor to be treated as an EEA national for the purposes of the Regulations, they must demonstrate that they are (i) a Worker, (ii) a self-employed person, (iii) a self-sufficient person, (iv) a student, or (v) a jobseeker.

Your sponsor is not actively seeking work, since entering the United Kingdom he claimed Job Seekers allowance from 09.06.2016, he then began claiming Employment Support Allowance (ESA) from 13.10.2016 due to incapacity.
This information is confirmed in the DWP letter dated 11.04.2017. According to the DWP website (ESA) is a benefit for people who are unable to work due to illness or disability, it is not for people actively seeking work. Therefore your sponsor is not exercising treaty rights in the United Kingdom.
Having considered all of the evidence and information provided in support of your application, and applying the civil law standard of the balance of probabilities, it is not accepted that you and your British citizen sponsor's residence in the EEA host country was genuine and it is considered that the purpose of your residence in the EEA host country was as a means for circumventing the UK's domestic Immigration Rules or other immigration law.

You have a right of appeal against this decision. You have 14 calendar days from the date this decision was made to appeal. Information on how to appeal, the appeal process and the fees payable are all available online at: https://www.gov.uk/immigration-asylum-tribunal/overview

If you do not have a right to reside in the UK as a family member of an EEA or Swiss national and you do not have any other lawful basis to stay you should make arrangements to leave the UK.
In light of your current immigration status your travel document(s) have been retained under Section 17 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as a person
ECD.3140 2 of 5



SO basically they have accepted the centre of life test when applied for FP but in RC application they stated not enough. In regards to esa their own guidelines state as long as it is not permanent as this is not then I am considered a QP this is directly from they so they are either lying or idiots.

ANy help would be greatly appreciated thank you in advance.

[Obie]

How can you apply for residence card under EU law, when you and your wife has never resided in the EU , where you exercised free movement rights.

[rahmsye]

How can you apply for residence card under EU law, when you and your wife has never resided in the EU , where you exercised free movement rights.

We did we stayed in Ireland hence we applied for rc in uk they accepted this im not sure i Understand the question?

[Obie]

Well unfortunately, this is the usually refusal, your case is no different. I understand that guidance will be provided by the Upper Tribunal in the not too distant future, in the immediate term, your option is to lodge an appeal.

[rahmsye]

Well unfortunately, this is the usually refusal, your case is no different. I understand that guidance will be provided by the Upper Tribunal in the not too distant future, in the immediate term, your option is to lodge an appeal.

DO I have a case and what do I say or put up as evidence in the appeal?

[Obie]

There clearly is a case. The UK's application of transposition of Eind and Surinder Singh, is a clear contravention of European law, and my advice to victims is to challenge the decision.

These changes only came about in November and February 2017. They are going through the system, and I am confident it will be overturned.

Before the November changes, I have been to many case, where the tribunals had ceased to apply the centre of life test, and focusing on whether rights under Article 7 of Directive 2004/38EC was exercised.

[rahmsye]

There clearly is a case. The UK's application of transposition of Eind and Surinder Singh, is a clear contravention of European law, and my advice to victims is to challenge the decision.

These changes only came about in November and February 2017. They are going through the system, and I am confident it will be overturned.

Before the November changes, I have been to many case, where the tribunals had ceased to apply the centre of life test, and focusing on whether rights under Article 7 of Directive 2004/38EC was exercised.

I was there for seven months would that be sufficient also have spoken to solvit they are looking into it. I am still unsure as to how to appeal went to a solicitors today and they said not worth appealing so kind of stuck as I am not really aware of any other law practices in manchester that do eea appeals.

[Obie]

Why did they say it is not worth appealing?

Perhaps the lawyer is judge lazy or does not understand EU law.

Well from my experience of dealing with Manchester, i do understand that there is an EU law problems with Manchester lawyers.

DO you and you wife have a child? Are you working in the UK ?

[rahmsye]

Why did they say it is not worth appealing?

Perhaps the lawyer is judge lazy or does not understand EU law.

Well from my experience of dealing with Manchester, i do understand that there is an EU law problems with Manchester lawyers.

DO you and you wife have a child? Are you working in the UK ?

We had a child in Ireland she passed away.

She is i am not on a temp basis has surgery which is considered qp. SO thats not really an issue as it states in their own guidelines.

[Obie]

Sorry that you lost your child in Ireland, must have been tough.
I was trying to make sense of the advice given by your lawyer. If there is no child then the option open to your spouse is very limited. The chances of success for FLR(FP) and FLR(M), will be extremely more slimmer than under EU law.

In my opinion, i believe the decision ought to be challenged, and that is what I have advised people in your situation.

[rahmsye]

Sorry that you lost your child in Ireland, must have been tough.
I was trying to make sense of the advice given by your lawyer. If there is no child then the option open to your spouse is very limited. The chances of success for FLR(FP) and FLR(M), will be extremely more slimmer than under EU law.

In my opinion, i believe the decision ought to be challenged, and that is what I have advised people in your situation.

I will appeal thats the best option as i can see. Is it worth doing an online or by post and shall i opt for an oral hearing? Also is the online appeal with the upper tribunal?

Thnk you for you condoloances and than yoou for your help.

[Obie]

GIven the complexity, i think an Oral may seem the best option

[rahmsye]

GIven the complexity, i think an Oral may seem the best option

If we pay could you represent us.

[CR001]

GIven the complexity, i think an Oral may seem the best option

If we pay could you represent us.

Kindly refrain from such requests. It is NOT permitted on the forum or for forum members to charge members for help.

[rahmsye]

GIven the complexity, i think an Oral may seem the best option

If we pay could you represent us.

Kindly refrain from such requests. It is NOT permitted on the forum or for forum members to charge members for help.

Apologies was not aware.

[Wanderer]

Didn't you both not present Irish PPSN cards as proof of integration?

[rahmsye]

Didn't you both not present Irish PPSN cards as proof of integration?

Yes we did thats the thing they even accepted we integrated when applying for family permit now they are saying that we haven't, so a bit contradictory. We even gave birth in Ireland our daughter passed and thats the only reason we left its so frustrating its not like we are not genuine its that they are intentionally being misleading.

[rahmsye]

Hi, currently going through appeal now after HO rejected my wife rc Non EEa , myself a BC. We have hire representation and I am just wondering if anyone has gone through tribunals just to learn the outcome of it under new regulations.

After talking to my solicitor we are a but uneasy even though centre of life is unlawful under eea he seems to think that they could reject me under something called abuse of regulations or something and that unless I can prove my centre of life we may be rejected. We have also asked for a decision on my wife Irish RC as we left before we could get a decision as there was a long wait.

SO just wanted some insight


Thank you in advance

[sadmanonatrain]

Do post your experience if you can. Why were you rejected? How long did you live in the EU country?

[greatscott]

Yes S/S for us. We have appealed. EEA2(PR) rejected solely on grounds of Eind not applying , therefore required to be a 'Qualified Person'.

How long is the wait to go to tribunal?

[gillacious_505]

Yes S/S for us. We have appealed. EEA2(PR) rejected solely on grounds of Eind not applying , therefore required to be a 'Qualified Person'.

How long is the wait to go to tribunal?

Hi GreatScott,

I know your case and generally the Surinder singh case where it is retrospectively applied. Ask your lawyer to take precedent of HSMP judicial review where high court ruled that 'legitimate expectation' can be basis to overrule the retrospective changes. Google HSMP judicial review for more info.
Thanks

[secret.simon]

Hi GreatScott,

I know your case and generally the Surinder singh case where it is retrospectively applied. Ask your lawyer to take precedent of HSMP judicial review where high court ruled that 'legitimate expectation' can be basis to overrule the retrospective changes. Google HSMP judicial review for more info.
Thanks

Likely won't work. Legitimate Expectations applies to UK law. It does not exist in EU law.

[greatscott]

Hi, thanks, does that mean you know me...anyway good to receive. I ran into this which forms part of our appeal because I think HO are hoping that O&B is their secret weapon of mass destruction of Eind case law (we don't have a lawyer by the way because I just don't have financials to cope):
• A case note (13: 383–399, 2017, published online: 26 May 2017) in the ‘European Constitutional Law Review’ refers to O&B (ECJ 12 March 2014, Case C-456/12, O v Minister voor Immigratie, Integratie en Asiel, and Minister voor Immigratie, Integratie en Asiel v B.) in relation to Eind...
(I don't want to detract from this thread) but here are some extracts (Jeremy Bierbach is an amazing guy btw). It broadly aligns exactly with what Obie has been saying all along, although he has disappeared somewhat:

In July 2016, the EFTA Court issued a judgment on the circumstances under which EEA law provides for a derived right of residence in the home member state of an

EEA national for the third-country national family member of that EEA national, specifically when that EEA national has returned from residing in another EEA state as an economically inactive person. In this, the Court was adding its own translation into EEA law (at least as it applies to the EFTA states, the three member states of the EEA that do not belong to the EU: Norway, Liechtenstein and Iceland) onto a veritable tower of case law from the European Court of Justice, its EU counterpart, starting with Surinder Singh, going on to Eind, and most recently restated in O&B…
... Groenendijk places the ambiguous consideration in its context: the fact that the EFTA Court so closely followed Eind in its decision must also mean that one of the key considerations of that decision applies (either because the EFTA Court meant it to apply, or in spite of the fact that the EFTA Court did not mean it to apply). And specifically: that since the right of the EU citizen (in that case) to return to his own member state after making use of the freedom of movement of workers is unconditional, the derived right of residence of his family member must also not be conditional on whether the EU citizen continues to work or not. The fact that in Jabbi and O&B, the Directive has been declared to be applicable ‘by analogy’ to that derived right of residence upon return cannot be read to mean that the provisions of the Directive also apply concerning any conditions that the EEA national has to satisfy in her home state…
… The EFTA Court may do its best to keep up the appearance of only construing rights from the classic economic freedoms of the Community that the EEA inherited at its genesis, for instance by basing its express considerations on Eind. But even in Eind, EU citizenship palpably lurks under the surface as an important addition to the fundamental freedoms. In reality, the freedom of economically inactive EEA nationals to return to their home states with their third-country national family members is not construed out of the dualistic will of the EFTA states to adopt Directive 2004/38 (if it had been, the Court would have declared the Directive to actually apply), but is anchored in a legal basis in primary law: the independence of the EFTA Court to enforce the principle of homogeneity with EU law. And that legal basis, as much as the EFTA Court may not want to admit it, provides a necessary simulacrum in EEA law for Article 21(1) TFEU and the EU citizenship that EU law has developed and that EEA nationals do not have....

(Extracts above from case note 13: 383–399, 2017 in the ‘European Constitutional Law Review’, with the author’s permission).
Annexure 10: Bierbach, J. (2017). The Reality Test of Residence goes through the Looking Glass: Court of Justice of the European Free Trade Association States (EFTA Court), judgment of 26 July 2016, Case E-28/15, Yankuba Jabbi v The Norwegian Government, represented by the Immigration Appeals Board. European Constitutional Law Review, 13(2), 383-399. doi:10.1017/S1574019617000104.

[greatscott]

Hi GreatScott,

I know your case and generally the Surinder singh case where it is retrospectively applied. Ask your lawyer to take precedent of HSMP judicial review where high court ruled that 'legitimate expectation' can be basis to overrule the retrospective changes. Google HSMP judicial review for more info.
Thanks

Likely won't work. Legitimate Expectations applies to UK law. It does not exist in EU law.

hmmm, found this: Wiki: "...Procedural legitimate expectations have been recognized in a number of common law jurisdictions..." Common law is mans best friend. I'm sure there's something to be gained by this (I hope).

btw. wonder if HO agents trawl this forum, must do right.............

[secret.simon]

"...Procedural legitimate expectations have been recognized in a number of common law jurisdictions..."

Correct. UK law, well English law, operates on common law (Scottish law is a hybrid of the common and civil legal systems). Indeed, common law is a foundation of English law.

EU law, which is based on civil law, does not have the concept of legitimate expectations or indeed other concepts central to English and common law. I had suggested in another post that you may benefit from understanding the basis of the difference between the civil and common legal systems.

This post on Quora has a very good explanation of the difference in outlook between the two systems.

...the level of abstraction in rules (which entails different ways of looking at facts and applying the law) plays a role in making Common and Civil law different.

As an aside, the idea or notion that there are laws that cannot be modified is anathema to English law. From an English legal point of view (this does not stretch to other common law jurisdictions, though I believe that New Zealand and Israeli law have similar outlooks), Parliament can make and unmake any law that it wishes.

The doctrine of Parliamentary Sovereignty can be summarised as

• Parliament can make laws concerning anything.

• No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).

• A valid Act of Parliament cannot be questioned by the courts. Parliament is the supreme lawmaker.

A key English constitutional principle is that "No Parliament can bind its successor". What was granted today can be withdrawn tomorrow and what was made today can be unmade tomorrow. There is no legal restriction on the ability of Parliament to change the law. There are always political considerations, but no legal or constitutional restriction.

I do find it appalling that people born and raised in these isles do not have a fuller understanding of their constitution (or legal system) than me, a migrant.