EEA4 refusal-CAN I APPEAL?

[Directive/2004/38/EC]

When I called local immigarion team I spoke to arrest team. They don't really understand EU regulations and repeated that I have 3 options: leave the UK, submit appeal or further application. So I told them that I'm going to submit further application. They will forward passport back to relevant department.

I sent EEA3+4 application last week. I call HO everyday but it seems impossible to get through. I dial 0151 672 5626 ( Opt1, then 2), they put me on hold and then tell that all info on UKBA website.

I want to request confirmation that I can work in UK and also request for priority treatment of EEA aplication as I'm unable to make journeys necessary for business reasons on existing documents (see http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary)

Have they returned your wife's ID or Passport?

I would tend to be cheeky and ask for compensation from UKBA. They should only be threatening you with expulsion if they do the same to your wife. As long as they allow her to stay, you can stay (assuming the issue is that she is not exercising her treaty rights in the right way for UKBA).

[SeaJohn]

Home Office returned my wife and son's passports. They received refusal letters as well but they can stay in UK.

Good idea about compensation! Firstly I want to receive my permanent residence, then I think about it.

[Directive/2004/38/EC]

Home Office returned my wife and son's passports. They received refusal letters as well but they can stay in UK.

Good idea about compensation! Firstly I want to receive my permanent residence, then I think about it.

I personally would do it now. It will make them think a little more about the issue of issuing expulsion orders.

[Directive/2004/38/EC]

I would also urge you to get a copy of your file from UKBA. http://www.ukba.homeoffice.gov.uk/navig ... onal-data/

Specifically see what the "arrest team" has actually been told. It costs a few pounds, but it is always fun to see the details.

[SeaJohn]

Thank you for the link. I will definitely make SAR.

[EUsmileWEallsmile]

Thank you Directive/2004/38/EC

HO returned passports of my wife and son. They do not have to leave UK. Home Office retained only my passport and passed it local Immigration team. My refusal was based on the following: "The letters from ..... university confirms that your EEA sponsor has been studying there since 1 October 2005 to date and that between October 2005 to September 2008 she received approximately ....... per annum in studentship to support her financially during the study. She has not however submitted any evidence which shows how she financially supported herself from October 2008 to date. You have failed to provide evidence that your EEA national sponsor is a qualified person. Therefore, it has been decided to refuse to issue the confirmation you seek with reference to regulation 15 (1) (b) of the Immigration (EEA) Regulations 2006."

Then there is a list of documents they consider in application. There was no mentioning about my payslips and P60s. I sent 95% of my payslips since April 2007 and all P60s. It looks like they just ignored this evidence. Since 2006 my wife and I have joint bank account and both of us had access to money.

So I don't understand why they refused permanent residence for my wife, son and me. She (EEA national) exercised Treaty rights during more than 5 years period. We did not have access to public funds.

The main question for me is the next step: Appeal or further application.
In case of further application do I need to fill inall forms again or just send letter explaining that they missed main piece of evidence in original application and forward this evidence again.

Students have a very low burden of proof when it comes to sufficient resources (ref article 7, 1 (c) of the directive and regulation 4 (d) (iii) of the 2006 regs). This follows previous EU case law for students.

[Directive/2004/38/EC]

Note this case on Deportation: http://www.freemovement.org.uk/2012/03/ ... e-changer/

I should also repeat that the requirements for deporting an EU citizen (or family member) are considerably harder for UKBA to meet than to deport other non-citizens from the UK.

I mention these because I do not see how they could possibly deport you given what you have said. This is just my personal opinion, and is in no way professional advise, but in any case...

[nonspecifics]

I have read other case law where UKBA won appeals by arguing that the EEA national cannot rely on the income from family members where the EEA is the sponsor of the family member.


UKBA won the argument that the person is not self-sufficient if they are relying on income from someone that is only in UK and earning because the EEA is already meant to be self-sufficient. They successfully argued that the earnings are to be discounted and so the EEA national cannot prove self-sufficiency by providing those earnings as the sole evidence of funds.

Having said that, I don't know if that is the case here. Did all the EEA wife's income and savings come from the non-EEA spouse during the time the wife is sponsoring?

However, if i remember right, those cases seem to be where the EEA national has NEVER been able to prove any independent funds without relying on the family member.

Maybe that's UKBA's stance in this case?

Also, I have read on here plenty of cases of documents being issued when it is the non-EEA spouse who is financially supporting the EEA national. If they accepted it then, why not now?

I think that's a good point though, if they are so certain the EEA national has not been exercising treaty rights, why aren't they saying they should leave too?

I definitely agree that you should fight this, demanding more information and demanding they justify their attitude.

[EUsmileWEallsmile]

I have read other case law where UKBA won appeals by arguing that the EEA national cannot rely on the income from family members where the EEA is the sponsor of the family member.


UKBA won the argument that the person is not self-sufficient if they are relying on income from someone that is only in UK and earning because the EEA is already meant to be self-sufficient. They successfully argued that the earnings are to be discounted and so the EEA national cannot prove self-sufficiency by providing those earnings as the sole evidence of funds.

Having said that, I don't know if that is the case here. Did all the EEA wife's income and savings come from the non-EEA spouse during the time the wife is sponsoring?

However, if i remember right, those cases seem to be where the EEA national has NEVER been able to prove any independent funds without relying on the family member.

Maybe that's UKBA's stance in this case?

Also, I have read on here plenty of cases of documents being issued when it is the non-EEA spouse who is financially supporting the EEA national. If they accepted it then, why not now?

I think that's a good point though, if they are so certain the EEA national has not been exercising treaty rights, why aren't they saying they should leave too?

I definitely agree that you should fight this, demanding more information and demanding they justify their attitude.

read preamble point 16 of the directive. They can't expel people unless public policy, etc, etc.

[SeaJohn]

Thank you everyone for comments.

I've read point 16 of the Directive.

I wonder if the note below related to EEA nationals or for me (non-EEA)as well.

"In no case should an expulsion measure be adopted against workers,
self-employed persons or job-seekers as defined by the Court of Justice save on grounds of
public policy or public security."

[EUsmileWEallsmile]

Thank you everyone for comments.

I've read point 16 of the Directive.

I wonder if the note below related to EEA nationals or for me (non-EEA)as well.

"In no case should an expulsion measure be adopted against workers,
self-employed persons or job-seekers as defined by the Court of Justice save on grounds of
public policy or public security."

What is your wife currently doing? Is she exercising treaty rights (is she still a student)? If so, you should at least be eligible for another residence card, even if it were not for PR.

[SeaJohn]

My wife is still a student. To exercise treaty rights she needs to be self-sufficient. She doesn't have any income since 2008. I'm the only worker in the family.

We are as a family are self-sufficient. The regulations are not clear about self-sufficient subject.

[EUsmileWEallsmile]

My wife is still a student. To exercise treaty rights she needs to be self-sufficient. She doesn't have any income since 2008. I'm the only worker in the family.

We are as a family are self-sufficient. The regulations are not clear about self-sufficient subject.

I think the regulations are very clear on what a student needs to do about being self-sufficient. They don't appear to be being applied properly in your case.

4.1.d(iii) "...assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence..."

[SeaJohn]

I've checked guidance on Free Movements Rights valid from 22 February 2012

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Very useful info for my case:

1. Page 32
This page tells you how to assess if a European Economic Area (EEA) national self-sufficient person or student and their family members have sufficient resources.

Exceeding the maximum level of resources to qualify for social assistance
In most cases it will be clear whether or not an applicant exceeds the maximum level of resources which a UK national and their family members can have so that they qualify for social assistance. They will exceed this level if they provide documents showing they have enough resources to cover their essential outgoings. For example the applicant can provide evidence of resources by providing one or more of the following:
 bank statements showing savings
 evidence of pension payments
 receipt of educational grants from overseas
 income of a partner, spouse or other family member to which they have regular access, for example:
o parental funding, or
o a spouse’s salary

2. Page 34

Declarations Made By Students
The regulations allow students to assure the Secretary of State they have sufficient resources not to become a burden on the social assistance system by making a declaration.
This means that when dealing with applications from students you may receive either:
 evidence in the form of documentation, or
 a declaration.

You must not insist that documentary evidence of available income or resources is provided.
Where the applicant chooses to make a declaration they should be advised they must confirm that they meet the above requirements relating to having sufficient resources.

If the declaration is not clear or detailed enough to confirm these requirements are met you must either:
 request further information, or
 refuse the application.

[spike_UK]

Hi SeaJohn,
I have only red your first few paragraph of this POST, but when you apply for EEA4 under EEA regulations, it all depends on your spouse, and she should be the one meet the legal requirements, et,,treaty right and bla bla not you.
But I want to ask you,,,did you receive your COA before the refusal? you can work even with COA. good luck mate

[SeaJohn]

I received COA back in December, approx 4 or 5 weeks after my first application. Now I'm waiting for new one. It's almost 4 weeks since I sent all documents to HO.

[EUsmileWEallsmile]

I've checked guidance on Free Movements Rights valid from 22 February 2012

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Very useful info for my case:

1. Page 32
This page tells you how to assess if a European Economic Area (EEA) national self-sufficient person or student and their family members have sufficient resources.

Exceeding the maximum level of resources to qualify for social assistance
In most cases it will be clear whether or not an applicant exceeds the maximum level of resources which a UK national and their family members can have so that they qualify for social assistance. They will exceed this level if they provide documents showing they have enough resources to cover their essential outgoings. For example the applicant can provide evidence of resources by providing one or more of the following:
 bank statements showing savings
 evidence of pension payments
 receipt of educational grants from overseas
 income of a partner, spouse or other family member to which they have regular access, for example:
o parental funding, or
o a spouse’s salary

2. Page 34

Declarations Made By Students
The regulations allow students to assure the Secretary of State they have sufficient resources not to become a burden on the social assistance system by making a declaration.
This means that when dealing with applications from students you may receive either:
 evidence in the form of documentation, or
 a declaration.

You must not insist that documentary evidence of available income or resources is provided.
Where the applicant chooses to make a declaration they should be advised they must confirm that they meet the above requirements relating to having sufficient resources.

If the declaration is not clear or detailed enough to confirm these requirements are met you must either:
 request further information, or
 refuse the application.

So what are you planning to do? Are you going to reapply quoting the regulations and using the information you have discovered?

[spike_UK]

How long did your first application take until they send you a refusal? I would say an appeal is better as you(your lawyer) can explain everything face to face with the judge.
All the best mate.

[SeaJohn]

I reapplied 4 weeks ago. Waiting for COA. I will call HO after Easter to request priority treatment.

[EUsmileWEallsmile]

Good for you, hope it goes smoothly.

[spike_UK]

Hi SeaJohn, my question was,, when did you submit your first application and after how long you got the refusal letter?
I hope your second application will go right,,,wish you the best.

[SeaJohn]

I'm planning to make a complain about my passport to UKBA. Nobody can explain me on what ground they retained my passport. Does anyone have suggestions what I should write in complaint letter, what laws or directive mention.
Where should I send it?

Thanks in advance.

---------------------------------------------

Applied EEA3&EEA4 on 16 November
Received COA on 16 December
Requested EEA passport back on 1 March
Received all documents (except my non EEA passport) with refusal letters on 3 March
Submitted further application on 9 March
Called HO to chase COA on 10 April

[EUsmileWEallsmile]

I'm planning to make a complain about my passport to UKBA. Nobody can explain me on what ground they retained my passport. Does anyone have suggestions what I should write in complaint letter, what laws or directive mention.
Where should I send it?

Your complaint would be based on the fact that you qualified for the permanent card (or a fresh residence card if insufficient continuous proof of 5-years residence), therefore passport should not have been retained.

Did you get your card yet?

[Directive/2004/38/EC]

Does the local enforcement office still have your passport?

You should also immediately do a SAR to get a copy of your file. Costs £5 http://www.ukba.homeoffice.gov.uk/navig ... onal-data/

[SeaJohn]

It looks like UKBA makes fun of me.

We got another refusal letter today (my passport wasn't returned again).
They said that they are happy now with the evidence of sufficient funds BUT ..... they want CSI now. Although in the first refusal letter there was clear note that we don't need CSI as we applied for EEA1/2 in 2006 and there was no requirement for students to have CSI at that time (My wife is still a student).