EEA 2 Refused - Questions about appeal

[kuskus777]

Hello,

Let me just say first of all that i am very grateful to anyone who takes time out of their day to give me some advice on here.

So here is my situation. I am a British citizen and my wife is from the USA.
We have been married for almost 4 years, but we have been together for 7.
We were living in the USA until 2 years ago when we decided to move back to Europe.

So about 2 years ago we moved to the Netherlands where we lived for about a year and a half while i worked as a chef-cook in various restaurants.
After a while we decided that we would like to move to England so i could be near my extended family.

My wife and i were extremely naive about the immigration process for her to live in the UK. We thought it would be a very simple matter for her to obtain permanent residence here. In retrospect it seems quite foolish but we can't really change that now.

When we moved here about 6 months ago we just put all our stuff in a van and took the ferry across to England. When we reached UK customs on the other side, the guy at the counter was being trained and didnt seem to know what he was doing. I don't remember who said what (my father was with us to help) but my wife ended up with a 6 month visitor stamp in her passport (that 6 month period has now expired.)

So a few days after getting here we decided to look into getting some information about sorting her immigration out (still thinking it would be a short, simple affair) but since we don't have a lot of money we ended up going to the Citizen's Advice bureau where we were advised by an immigration lawyer who works there.

They basically told us that it was a lot less simple than we thought, but that since we had lived in the Netherlands for a while before coming here, that we could apply via the EEA-2 route.

The problem now was that we were foolish and had thrown out a lot of documents that we could have used to prove that we were living together in the Netherlands, because we were trying to travel light and didn't think that we would need them.

I managed to find a few documents to prove we were living there, a work contract from one of the restaurants where i worked and a few payslips.

I finally sent in the EEA-2 application with what documents i had, and last week i got everything back saying the application had been refused.

The reasons they gave for the refusal were:

- We had not adequately proved that we were both living in the Netherlands during that time period.

- They said that i had become a jobseeker right before moving from Netherlands to UK so therefore was not Working or Self-employed, and so i was not exercising my treaty rights.

The thing about the treaty rights seems wrong. There was even a section on the EEA-2 form for applying if the sponsor (me) is a jobseeker.

I am very confused because i thought the whole point of us being able to do the EEA-2 route was because i came here as a jobseeker.

Did we get some bad advice from the lawyer?

Since we received the refusal letter last week, I have been trying to find a lawyer in my area that can take my case through legal aid, but to no avail.
We only have a few days left to submit the appeal.

I have a few questions about the appeal if you don't mind:

- Is it pointless to try and do it without a lawyer?

- Is it better to appear in person at the Tribunal? (and where do you go for that)

- If we appeal, does that rule out the possibility of submitting a new EEA-2 application? The letter i received seemed to be saying that you can either appeal or submit a new application, but not both.

Maybe the best thing would be to get more evidence and submit a new application?

It is possible that if i try very hard, i can obtain some more documents from people in Netherlands. For example it may be possible to obtain a copy of the rental agreement for the place where we were living. (We threw our own copy out before leaving, how stupid!) I will probably have to pay the landlord off for that as they are not the helpful type, but i suppose its worth it.

Another thing i want to mention is that i am currently doing a computer programming course and it is very likely that within the next 6 months (hopefully sooner) i will have a job that pays above £18,600.

Is it viable option to wait until i make over 18,600 (which is quite likely to happen) and then apply via the normal route of British citizens bringing their US spouses to live here?

Sorry for the really long post, again we really appreciate any help we may receive from people on this board.

Greetings,

-ben

[Lucapooka]

If you can find the proof of working you should not have any problems. However, I do find the job-seeker comment interesting (you having worked in the past but not immediately before your entry into the UK) and wonder if this has any legal merit.

The main issue is that if you can't positively prove it, you wife is in UK as a tourist (that was how she was admitted on entry) and will have to leave within six months or win the appeal or new application. Wait for more comment, but I wonder that the fact she was admitted as a visitor rather than under Singh may exclude her from actually using a Singh application from inside the UK; I wonder if she should have used Singh to enter in the first place in order to continue to use it. But that's not an expert analysis and if it was not cited in the refusal it may not be a relevant factor. If you eventually fail with the EU route and opt for UK immigration, your wife can only apply for this from outside the UK.

[Jambo]

I wonder that the fact she was admitted as a visitor rather than under Singh may exclude her from actually using a Singh application from inside the UK; I wonder if she should have used Singh to enter in the first place in order to continue to use it.

I don't think that not entering using Singh prevents her from making an application later on in country. Rights under EEA regulation are obtained automatically (if you meet the requirements) and this includes returning residents.

To me it all sounds like a bit of a mess. I would advice making a fresh application. There is no need for an appeal. Just make sure you got the relevant documents. Could you get proof of work from the tax authorities in the Netherlands? A copy of the rental agreement should be good or any other official document. Did your wife have a Dutch residence permit as a spouse of EEA national?

The comment about the job seeking is just nonsense but might have created because of the way you filled in the form.

[Mr. Ali]

Hey Kuskus777

Click on this it might help you.

http://www.whatdotheyknow.com/request/e ... egulations

[kuskus777]

Hi guys, thanks a lot for your replies.

From what has been said here, i gather that it is preferable to avoid doing an appeal if possible. Is this correct? What is the reason for that?

I got the idea from the refusal letter that if we do an appeal, that we cannot submit a new application if the appeal fails... However i am not sure of this.

If there is a chance for the appeal to go through would it not be better to try it?

The jobseeker stuff they brought up really threw me off because there is literally a whole section of the application form specifically intended for people in that situation.

Another weird thing that threw me off a bit is that i thought the whole deal revolves around the fact that i was living and working in the Netherlands for a while, and that to some extent it is irrelevant whether my wife was living there.
Yet they are saying that i have not adequately proved the my wife was living with me during that time.

It's like some of the stuff they say makes me think that they either don't know what they are talking about (which seems doubtful because they of all people are supposed to know this stuff), or they are deliberately coming up with dubious reasons to refuse the application (which also seems a bit absurd.)

Mr. Ali thanks for the link i read through that and it is quite interesting. It took them 4 months from the time of the application to issue a to issue a COA to us. They state that it should take no more than 10 days, which is frankly laughable. The person who wrote that is either lying or they have no actual personal knowledge of what goes on in whatever office these applications are processed.

From what they say in that link though, it seems like my wife doesn't even really need a resident card and that all she really needs is a "family permit" that will allow her to enter and leave the country. Is this correct?

If this is true then the only real problem is the visitor stamp in her passport. Is there anything that can be done about that?

[Jambo]

As you were not familiar with the requirements, you made an application with insufficient evidence. I don't see any reason to appeal a decision which was correct based on the evidence you provided. Just gather the required documents and reapply.

The jobseeking section in the form is not relevant in your case. You need to prove your wife lived with you in the Netherlabds. That's part of the requirements.

I suggest you read this post - Family Permit & Singh (although it also talks about the Family Permit which is not relevant in your case anymore). I also suggest you read Regulation 9 (link found in the post) which states the requirements.

If you got further questions, feel free to ask.

[Directive/2004/38/EC]

Do you have proof that you worked in the Netherlands?

Did your wife have a Residence Card or was she otherwise registered with the Dutch authorities while you were both living there?

You can appeal if you want, including additional evidence. Or you can just submit a fresh application.

[kuskus777]

I was under the impression that the EEA2 law revolved around the question of whether the EEA sponsor (me) was exercising treaty rights by coming here as a (in my case) jobseeker, which is what made me think it was more important to prove the I was living and working in Holland than it was to prove that my wife was living there.

The proof of work that i provided were:

- A 6 month contract from one the restaurants where i worked
- 2 monthly payslips from that same restaurant

What would be adequate proof of work? Should i try to obtain tax records as someone suggested?

As far as proof that i lived there, i have in my passport an official vignette from Dutch immigration that says i am a resident of Netherlands.

The question as to whether my wife was registered with the authorities, well it's kind of a silly story. We were both registered at the town hall of the town where we lived, which as far as i knew was all that we needed to do. After living there about a year we were contacted by IND (which is the dutch immigration office) and told that we both needed to submit resident application forms through them.
We both submitted our applications, mine went through immediately but there was some kind of delay with hers where it was necessary for us to submit another form to them in addition to the original application (i can't remember what it was now.)

At this point we had already decided that we would be moving to the UK and were making preparations to do so, and this combined with the fact that we maybe didn't take it seriously enough meant that we ended up not completing her application through IND in Holland and we just moved here instead.

[Jambo]

The requirements for returning residents is different than the standard EEA2 application. Only your activities in the Netherlands matter. What you do in the UK is irrelevant. In the form there is a section for Surinder Singh cases (section 5) which needs to be filled in together with your employment in the Netherlands evidence (section 6). You don't need to tick any job seeking option anywhere in the form.

6 months contract + some payslips should be enough to prove employment. You will need to provide evidence of residence of your wife together with you so rental agreements or utility bills etc are required. You don't need to prove she was registered with the authorities (but if you kept the letters from IND you can use that as evidence of residence).

[kuskus777]

Oh i see, it is different for returning residents, i understand now. It's too bad that the lawyer i dealt with through citizen's advice bureau didn't really know how to do this stuff. They did tell me they had never done it before but oh well.

Sorry if i'm flogging a dead horse here, but i am still trying to figure out once and for all whether filing an appeal would be a good thing for us to do or not.
Because we have only 2 days left in which to do file an appeal and i don't want to make the wrong decision in some way.

Or would the best thing just be to make a new application with additional proof?

Thanks again for the help, i really appreciate it!

[kuskus777]

Oh i just remembered that my wife has some mail addressed to her at the place where we lived in Holland. However they are not utility bills or anything official, just personal correspondence from family in the USA.

Does this help?

[Directive/2004/38/EC]

Oh i just remembered that my wife has some mail addressed to her at the place where we lived in Holland. However they are not utility bills or anything official, just personal correspondence from family in the USA.

So your wife has no evidence at all from the government that she was in the Netherlands? No health insurance, or letters from IND, or fines from the police? No entry and exit stamps in her passport?

[Jambo]

Sorry if i'm flogging a dead horse here, but i am still trying to figure out once and for all whether filing an appeal would be a good thing for us to do or not.
Because we have only 2 days left in which to do file an appeal and i don't want to make the wrong decision in some way.

Or would the best thing just be to make a new application with additional proof?

You can file an appeal, pay a fee, wait for a hearing date, go to court (if oral), win and wait for the HO to issue the RC (can takes several weeks at least)
OR
you can file a new application which might take upto six months (although you can ask for the passports to be returned if you need them without affecting the application).

In both cases, you will need to present new evidence to prove your employment and your & your wife residence.

I don't see any advantage in taking one route over the other although I think sending a new application is a simpler process for you. You just need to fill in the form again. No need to deal with the courts paperwork.

[Obie]

Well in light of fact you do not have enough documentary evidence, i believe the best bet is to appeal, and give oral evidence. Applying for reconsideration will not work, as you will not be able to proivde more evidence than the one they have already considered

[kuskus777]

I was also thinking that going ahead with the appeal and giving evidence orally in person might be helpful, but i have no experience in the matter.

If there is a chance of that working out then i think we might go ahead and try it because doing a new application will probably take 6 months.
Last time we got the decision 5 months after sending in the application so i would rather avoid waiting all that time again, my wife has not been to visit her family since we moved here.

I'm still confused about what happens with the stamp in her passport even if she does get a residence card. Is there anything that can be done about that?

[Directive/2004/38/EC]

I'm still confused about what happens with the stamp in her passport even if she does get a residence card. Is there anything that can be done about that?

Can you describe the issue of the stamp in the passport? Is this the Code 1A stamp she got when she entered the UK? Why is it a problem?


A lot of your problems would go away if you were willing to get some/any documentary evidence that your wife was resident in the Netherlands. Get a copy of her city registration. Get a copy of her library borrowing record. Get a copy of her (fill in the blank). Where is the problem with doing that?

[Jambo]

I believe his wife entered as a tourist not as a spouse of EEA national (or a Singh).

This is not an issue if you can prove your residence in the Nethetlands. Sort that out and you will be fine.

[Directive/2004/38/EC]

I believe his wife entered as a tourist not as a spouse of EEA national (or a Singh).

Not that it matters! But I doubt the border guard would issue a visitors visa if she was the identified wife of a British citizen arriving with a van of belongings to move to the UK

[Jambo]

I believe his wife entered as a tourist not as a spouse of EEA national (or a Singh).

Not that it matters! But I doubt the border guard would issue a visitors visa if she was the identified wife of a British citizen arriving with a van of belongings to move to the UK

I just repeated what the OP wrote

. I don't remember who said what (my father was with us to help) but my wife ended up with a 6 month visitor stamp in her passport (that 6 month period has now expired.)

You might be right that he was issued a Code 1A as a Singh but from his description, I doubt.

@kuskus777 - does the stamp state "employment prohibited" or some similar restriction?

As said, it doesn't really matter.

[kuskus777]

Yes the stamp is a visitor's stamp and says "No recourse to public funds" on it.
The lawyer also said that it was strange that the stamp was there and that it should not be there.

Honestly i think the guy at customs made a mistake. Like i said we could tell he was being trained at the time because he didn't seem to really know what to do and there was a guy standing behind him telling him stuff.
But who knows..

Can personal correspondence from family addressed to the place where we lived in Holland work as proof? I didn't send those i with the application because i didn't know we had them at the time.

[Directive/2004/38/EC]

You can try.

You can also contact the local city office in the Netherlands and ask for a copy of your file.

[Obie]

I am sure your wife's passport will show when she entered and departed the Netherland. It is not compulsory that bills are provided, although it will make life easier.

I suspect she will be just fine.

[kuskus777]

They said her passport stamps from entering and leaving holland are not enough.

[Directive/2004/38/EC]

They said her passport stamps from entering and leaving holland are not enough.

If you do have entry and exit stamps then those are enough. If she was married when she arrived in the Netherlands, she was immediately resident on her arrival and the stamp proof as good as it gets!

See article on residence

[kuskus777]

If the stamps are proof enough but the HO says they are not then i am not sure where to go from there.

Do i insist that they are proof? Or maybe that is a good reason to appeal if the stamps in her passport should be enough but the HO are still rejecting the application?

It's so confusing, hard to make a decision..