EEA (FM) residency card refused for dubious reasons

[Casa]

I'm not convinced that an application for a 5 year visa under the UK Immigration Rules submitted within the UK will succeed following a SS refusal if the HO consider your wife and children to be without valid leave.

[frustratedbrit]

Hi Casa, when you say Surinder Singh refusal, do you mean our refusal last year for a residency card, or do you mean a refusal after Brexit has completed in March 2019 (or whenever it is)?

[frustratedbrit]

I'm a British citizen with a Vietnamese wife and child stepson. We successfully entered the UK under EEA Family Permits in December 2013, having lived in Holland for 5 months. After about two months in the UK, we then moved to Germany so that I could take up a new job. I lost the job after 6 months, but we continued living in Germany for another 6 months. We then successfully returned to the UK in March 2015, again under EEA Family Permits. We applied for EEA (FM) residency cards. This was turned down because I, the sponsor, didn't submit my passport, as covered by another thread on this website. We applied again in early April this year and received a rejection letter today.

The rejection letter stated two reasons:
1) "Time spent as a jobseeker in another Member state does not entitle a British citizen to sponsor the residence of a direct family member in the UK".
2) "In order for your British citizen sponsor to be treated as an EEA national for the purposes of the 2016 Regulations, they must demonstrate that they are are (i) a worker, (ii) a self-employed person, (iii) a self-sufficient person, (iv) a student, or (v) a jobseeker on their return to the UK and you have provided no evidence of their acitivities since returning to the UK."
It also says that we have the right to appeal within 14 days of the decision date.

My understanding (I may be wrong about this) is that neither of these are valid reasons to reject the application. Specifically:
1) The fact that I was a jobseeker is irrelevant. I spent 6 months in full-time employment, and as part of the application enclosed my employment contract, 6 months of payslips and bank statements showing the pay entering my German bank account.
2) Under the Surinder Singh route there is no need for the sponsor to show that status on return to the UK.

So my questions are:
1) Am I right about the reasons for rejection being invalid? If not, have the criteria changed, and when?
2) Is there any point in appealing? What is the typical waiting time?
3) Do I have to pay the appeal fee (80 GBP) twice (once for my wife, once for my stepson)?

Thanks in advance for any help.

[Richard W]

1) Am I right about the reasons for rejection being invalid? If not, have the criteria changed, and when?

The criterion for being treated as an EEA national was changed on 25 November 2016. Essentially, the word "immediately" was inserted in what is now Regulation 9(2)(a)(i):

(2) The conditions are that—

(a)BC—

(i)is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom; or
(ii) ...

Regulation 9(7) starts

For the purposes of determining whether, when treating the BC as an EEA national under these Regulations in accordance with paragraph (1), BC would be a qualified person -...

and thereby implies that the decision in Eind was wrong.

2) Is there any point in appealing? What is the typical waiting time?

I rather suspect the case will not conclude before Brexit. A savvy HO presenting officer may well get the case kicked into touch by getting the legal questions referred to the EUCJ, who will never respond.

If you're lucky, the UK courts may make the decision themselves and affirm that the rulings in Surinder Singh and Eind are fully applicable to your family. I hope Eind is irrelevant to you beyond the procedural hassle of demonstrating that you are indeed a qualified person, but the challenge to Surinder Singh is more fundamental.

3) Do I have to pay the appeal fee (80 GBP) twice (once for my wife, once for my stepson)?

I don't know, but the difference may well be the least of your costs.

[frustratedbrit]

I'm having difficulty in interpreting in concrete terms the implications of what you are saying. Which of the following are you saying applies to my case?

A) Even though my family legally entered the UK in March 2015, the right of my family to live with me in the UK has now rescinded as of Nov 2016;

B) Even though my family legally entered the UK in March 2015 and are legally entitled to remain living with me in the UK (at least until future change of regulations post-Brexit), they are not entitled to receive EEA(FM) residency cards, due to the change in regulations in Nov 2016; or

C) My family are legally entitled to remain living with me in the UK, and are entitled to EEA(FM) residency cards.

[Richard W]

I'm having difficulty in interpreting in concrete terms the implications of what you are saying. Which of the following are you saying applies to my case?

A) Even though my family legally entered the UK in March 2015, the right of my family to live with me in the UK has now rescinded as of Nov 2016;

If the EEA Regulations 2016 (and 2006 from November 2016) express the law and refer to no impossible questions, then (A) applies. However, if you have not been a qualified person since your return to the UK, then if the regulations are correct then they either lost their rights after 3 months, in June 2015 (expiry of the initial right of residence) or after 6 months, in September 2015 (expiry of the family permits - which I am presuming were never revoked).

B) Even though my family legally entered the UK in March 2015 and are legally entitled to remain living with me in the UK (at least until future change of regulations post-Brexit), they are not entitled to receive EEA(FM) residency cards, due to the change in regulations in Nov 2016; or

I am not suggesting that they may have rights yet not be entitled to have documentation confirming them. So, no to B.

C) My family are legally entitled to remain living with me in the UK, and are entitled to EEA(FM) residency cards.

I believe this is the correct interpretation of the law, for the rulings of the EUCJ override the EEA Regulations. It may, however, be necessary to apply the reasoning of the Surinder Singh judgement. Possibly the logic of Eind is also relevant, even if you are a qualified person, to back up the conclusion of Surinder Singh in your case. Perhaps the Home Office has found a credible alternative chain of reasoning which would result in the Surinder Singh decision but not support the extension of Directive 3004/38/EC to cover your family.

There may well be important subtleties that those who, like myself, lack legal training, may overlook.

[frustratedbrit]

By "qualified person" since my return to the UK, do you mean whether I satisfy one of a handful of criteria (one of which is being a "worker", and another of which is being "self-employed")? I am employed by my own consultancy company, and have performed much consultancy work since my return. It's just that I didn't point this out the Home Office (because I was under the impression that there was absolutely no need to).

And when you say "EEA Regulations", do you mean the UK government's regulations related to the EEA?

[Obie]

I believe there is a case here, the principle of protection of legitimate expectation and the protection of legal certainty are fully engaged in this case, they are also very well recognised principles of community law, which the UK is bound to respect and recognize.

If a person entered the UK on an EEA family permit, the rules cannot be suddenly changed without transitional provision. It is unfair and unlawful and breaches EU law principles.

[frustratedbrit]

Obie, so what's happening to others in my situation? There must be hundreds of cases in the past year.

[Richard W]

I am employed by my own consultancy company, and have performed much consultancy work since my return. It's just that I didn't point this out the Home Office (because I was under the impression that there was absolutely no need to).

I thought it likely that you were a qualified person, but you hadn't said. That leaves the fundamental Surinder Singh issue.

Greatscott used Eind to study without CSI for his family, and now his family can't get PR without getting a reaffirmation of Eind.

And when you say "EEA Regulations", do you mean the UK government's regulations related to the EEA?

Yes.

[frustratedbrit]

So, Richard W, would I be correct in summarising what you are saying as this:

Even though my family legally entered the UK to live with me in March 2015, under what was then Home Office rules for the Surinder Singh route, and even though they have lived with me in the UK since that date more or less continuously (except a few short absences totalling about 2 months), all of the following apply:

(1) It is "legally debatable" whether or not my family are entitled to continue living in the UK with me from this date onwards. This is because of a change in Home Office rules in Nov 2016 with respect to the Surinder Singh route, that insists that being unemployed "immediately" (and certainly for 6 months) prior to return to the UK disqualifies my family from Surinder Singh status, regardless for how many months or years I worked in Germnay. Obie thinks my family are entitled, Richard W is not so sure;

(2) Whether or not they are currently entitled to live with me in the UK at the moment is exactly the same question as whether or not they are entitled to EEA(FM) residency cards under a new application (assuming a correct application);

(3) I was wrong to think that, even prior to Nov 2016, I did not need to show that I was a "qualified person" (e.g. had a job on my return to the UK) when applying for EEA(FM) residency cards for my family. The Home Office were correct, for that reason alone, in turning down our application; and

(4) Appealing against the rejection we received yesterday from the Home Office is probably pointless, because they will probably either turn down the appeal or "kick it into the long grass" on this legally debatable point (1), and this would probably not get resolved until some time after March 2019 when Brexit actually happens and the UK will probably no longer be under jurisdiction of the ECJ.

[Richard W]

So, Richard W, would I be correct in summarising what you are saying as this:

Note that it is all rather complex. There is a widespread belief that the Home Office does not understand the supranational free movement law, or wilfully chooses to ignore it.

<snip>... all of the following apply:

(1) It is "legally debatable" whether or not my family are entitled to continue living in the UK with me from this date onwards. This is because of a change in Home Office rules in Nov 2016 with respect to the Surinder Singh route, that insists that being unemployed "immediately" (and certainly for 6 months) prior to return to the UK disqualifies my family from Surinder Singh status, regardless for how many months or years I worked in Germnay. Obie thinks my family are entitled, Richard W is not so sure;[/quote]
The relevant date is November 2016, but otherwise yes. The Home Office will probably argue that the insertion of the word 'immediately' was a clarification and that the family permits were issued in error. I don't know if there was a legal ruling that a gap could intervene, in which case the Home Office has changed what it purports to be the law. There is another recent case in which the spouse of a dual national was issued a family permit when Surinder Singh clearly did not apply. I haven't yet seen it suggested that the doctrine of 'legitimate expectation' applies there.

(2) Whether or not they are currently entitled to live with me in the UK at the moment is exactly the same question as whether or not they are entitled to EEA(FM) residency cards under a new application (assuming a correct application);

Yes.

(3) I was wrong to think that, even prior to Nov 2016, I did not need to show that I was a "qualified person" (e.g. had a job on my return to the UK) when applying for EEA(FM) residency cards for my family. The Home Office were correct, for that reason alone, in turning down our application; and

That is what the wording of the regulations implies.

(4) Appealing against the rejection we received yesterday from the Home Office is probably pointless, because they will probably either turn down the appeal or "kick it into the long grass" on this legally debatable point (1), and this would probably not get resolved until some time after March 2019 when Brexit actually happens and the UK will probably no longer be under jurisdiction of the ECJ.

The argument of legitimate expectations offers more hope of the case being dealt with reasonably quickly. There may also be some advantage in having an appeal in progress, as opposed to conceding that your family is not lawfully resident. The timing problem is that the emerging withdrawal agreement does not appear to cover Surinder Singh. There are EU nationals whose lawful residence in the UK depends upon Surinder Singh.

[frustratedbrit]

Thanks for the detailed answers. So there is an advantage in appealing in that we would then be in legal limbo, rather than in a situation where we accepted that we had no right to be in the UK.

But overall, this sounds like it is a very bad situation for us. It sounds like my family, under current Home Office rules, are not entitled to be in the UK, and so could be liable to be removed from the country at any point from yesterday onwards (unless we appeal).

If we did appeal, would the appeal be able to take in extra evidence, i.e. that I was working within 3 months of returning to the UK with my family.

Another issue in all of this, which may or may not be irrelevant, is that we first gained EEA Family Permits in December 2013, having lived in Holland for 6 months, where I held a job in the first 3 months. Perhaps, given that we qualified then, before regulations changed with respect to UK interpretation of Surinder Singh in early 2014, do you think that perhaps our status is somehow different? Or perhaps, given that I was not claiming state benefit in Holland before I returned to the UK, I could be classed as having been self-sufficient immediately before returning to the UK, and therefore qualify under the Nov 2016 rules. We only lived in the UK briefly in late Dec 2013/early 2014, before moving to Germany for a year, so this was before the current period that we have continually lived in the UK from March 2015 up until now.

[Obie]

Home Office rules are not the law, they are large in contravention of the spirit and letter of the law. Therefore I don't believe your family are here unlawfully, in those circumstances.

[frustratedbrit]

Hi Obie,

Yes - I'm sure the rules must be in contravention of the law, and this is reassuring to know in the event of them trying to force my family out of the country. But the point is that I would very much prefer not to go through a long and protracted court battle if that can possibly be avoided. So this means that I, like 95% of the poor sods in my situation who also don't want court battles, have to put up with the Home Office rules as they are (unless the ramifications of this are even more dire than a protracted court battle).

Presumably, unless there is some dramatic shift in government policy, there is no realistic prospect of my family getting permanent residency in 2020 (after 5 years continuous residency), because we can't even get EEA(FM) residency cards now and we're still under ECJ jurisdiction at the moment.

I'm struggling to think of possible next steps for my family.

Options that spring to mind are (please comment on the feasibility of these options, anyone):

1) Ignore the Home Office ruling about our EEA(FM) residency cards, and carry on living in the UK, in the presumed knowledge that, legally speaking at least, we are entitled to live in the UK, and just accept that we can never get either EEA(FM) or permanent residency cards. However, it would be most unsettling to live in this limbo state, with the possibility of a knock at the door hanging over our heads;

2) Apply for FLR(M), having lived in the UK continuously for 2.5 years since March 2015. So this would mean we could apply for ILR in 2.5 years time. However, if the Home Office consider my family not to be lawfully residing in the UK at the moment, then this would be a complete waste of time, effort and money;

3) Leave the country, and start from scratch, on the conventional 5-year route for the spouse of a British citizen. This is a horrible prospect, with massive inconvenience and cost, but is beginning to sound like the only way I can securely live in my own country with my family;

Unless, of course, we just give up living in the UK. This is almost unthinkable to us now - we bought a house last year, have our children in schools, we live close to my parents, and basically love living here. Also, my career is established in the UK, and it would not be easy to start from scratch somewhere else. All in all, this would be devastating for the family.

[Obie]

I understand the Home Office are acting irrationally and unstable at present, but i cannot see or envisage a situation where they can ask the children to leave the UK, even if you fail on the EU law area.

[frustratedbrit]

Thinking about this a bit more, I just don't get this. Surely, having a EEA Family Permit is confirmation from the Home Office that we are legally entitled to enter the UK to live together indefinitely, and that is what we did and are continuing to do, and so legally surely that is the end of the matter, at least until Brexit ends the jurisdiction of the ECJ. How could it possibly be legally interpreted any other way? I know that the Home Office is on shaky ground generally about all of this, but what would their position be on what I have just said? Or has no-one ever asked them?

[Richard W]

Thinking about this a bit more, I just don't get this. Surely, having a EEA Family Permit is confirmation from the Home Office that we are legally entitled to enter the UK to live together indefinitely, and that is what we did and are continuing to do, and so legally surely that is the end of the matter, at least until Brexit ends the jurisdiction of the ECJ. How could it possibly be legally interpreted any other way? I know that the Home Office is on shaky ground generally about all of this, but what would their position be on what I have just said? Or has no-one ever asked them?

This is comparable to issuing a British passport. The Passport Office does refuse to renew passports because it believes it made, or worse, may have made, a mistake in issuing a passport in the first place. A good example is people of whom parent appeared to have permanent residence, but then turned out not to have complied with the Workers' Registration Scheme (WRS). For passport renewal, relevant passport holders' parents had to demonstrate compliance with the WRS.

In a similar vein, a residence card certifies that one has the right to reside at the time of issue. It says nothing about what rights one has one week later.

The domestic issue here is whether the law has changed, or whether the understanding of EU law has improved. A member state is permitted to treat someone as having a right of residence even though they do not, so it is actually conceivable that Regulation 9 granted permanent residence to some people who were not entitled to it by EU law. A possible precedent is given by the McCarthy transition arrangements. Those who had unrequiredly been granted family permits or residence cards they were not entitled to by EU law were allowed to retain the rights, but those who did not have such documentation were not. But was the retention of the privilege a legal requirement, or just a voluntary case of 'the English sense of fair play'?

I've looked at the the guidelines for issuing permanent residence cards. There is no provision for accepting a permanent residence card as evidence of having held permanent residence; permanent residents are required to prove their permanent residence yet again. I'm not sure if permanent residence cards have yet begun to expire - in theory, they should have begun to expire.

[frustratedbrit]

Does anyone know whether an appeal (which I have 9 days to make a decision about and prepare for) could take into account information that was not supplied with the original application (i.e. that I started working in the UK soon after arriving back from Germany)?

And what about the fact that we have lived and worked in Holland before we lived in Germany, and successfully applied for, and used for entering the UK, EEA Family permits from there? Could this somehow qualify me, because I was not living on benefits and thus was "self-sufficient" before I returned to live in the UK in Dec 2013? Precisely what is meant by "self-sufficient"? And for precisely what period does it apply?

As far as I can see, my questions ultimately break down into the following:
1. Can I submit more documentary evidence in an appeal than I did in the original application?
2. The definition of "self-sufficient" in paragraph 4(1)(c) of the Nov 2016 rules - there are no other definitions of "self-sufficient" and so this definition is presumably meant to apply throughout the whole document - talks of not being "a burden on the social assistance system of the *United Kingdom* during the person’s period of residence". So if someone is claiming benefits under the social assistance system of another country, could they still be classed as "self-sufficient"?
3. Is someone who is not living on benefits necessarily "self-sufficient"?
4. Does 9(2)(a)(i) of the Nov 2016 rules apply to the most recent time the British Citizen lived abroad (in my case, Germany), or is it sufficient for any previous time abroad to qualify (in my case, Holland)?

[frustratedbrit]

anyone?

[Obie]

In an EEA appeal, all matters will be taken into account, including evidence of matter that took place after the decision was reached.

Yes new evidence will be accepted.

[frustratedbrit]

Thanks. I decided to make an appeal. It is not at all clear from the Home Office refusal letter or the on-line application form whether or not we need to make two appeals (one for my wife, one for my stepson) or one. We received one refusal letter, which refers to both people, and it's all dependent on the same criteria. Presumably there will be one hearing. Do we fill out two on-line applications and pay the 140 GBP fee once or twice?

[frustratedbrit]

And another thing that is not completely clear - the appeal must be within 14 days of the Home Office decision, but if the decision date (presumably date at the bottom of the refusal letter) was, say, on a Thursday, does this mean the last day to make an appeal is two weeks later on a Thursday, or two weeks later on a Wednesday?