EEA Family Permit Refused for the weirdest reason

[nat1123]

Dear All,

I am a dual British and Polish national and I married someone from outside the EU. My partner applied for a EEA Family Permit visa. It should have been all smooth and clear, I am working in the UK. As proof of my dual nationality I provided my Polish passport. Yet, despite this, my application was refused for the most preposterous reason, namely:

"In order to qualify for an EEA Family Permit you must be a family of an EEA national ... the onus is on the applicant to demonstrate that this is the case ... your partner is British and you have shown no evidence that she holds dual nationality with an EEA member state."

So they said that he did not show that I have dual nationality despite the fact that I provided my original Polish passport as proof! I really don't understand this. It is possible, I suppose, that the person taking the documents from my husband didn't photocopy them all correctly - but this is just completely disappointing and infuriating...

I am going to make an appeal to the tribunal, and I would be extremely grateful if you guys could give me any help/advice with this matter.

One specific thing that I would like to know is: Is it possible to launch a new application and an appeal to the tribunal at the same time? - but I would be grateful for any advice you can offer.

Thank you.

[Gyfrinachgar]

The reason is weird and does not make much sense, but I think the decision itself is rightful. Based on changes to the immigration law earlier this year, once you are British citizen, you no longer have access to most of the EEA routes (see here: also British = only British).

British law now supercedes EEA regulations for its own citizens. Following the 2012 changes, EU free movement law will no longer apply to you or your family members once naturalised (a few exceptions apply). That means as a British/Polish dual national, you have to use traditional British immigration routes (in this case, a spouse visa).

Poland has a similar policy, by the way, see this tread and this blog on states applying reverse discrimination and don't consider its citizens covered by Directive 2004/38/EC.

[Directive/2004/38/EC]

I am a dual British and Polish national and I married someone from outside the EU. My partner applied for a EEA Family Permit visa. It should have been all smooth and clear, I am working in the UK. As proof of my dual nationality I provided my Polish passport. Yet, despite this, my application was refused for the most preposterous reason, namely:

"In order to qualify for an EEA Family Permit you must be a family of an EEA national ... the onus is on the applicant to demonstrate that this is the case ... your partner is British and you have shown no evidence that she holds dual nationality with an EEA member state."

So they said that he did not show that I have dual nationality despite the fact that I provided my original Polish passport as proof! I really don't understand this. It is possible, I suppose, that the person taking the documents from my husband didn't photocopy them all correctly - but this is just completely disappointing and infuriating...

How/when did you get your British and Polish citizenships? In which countries have you worked?

Whether you are covered by EU law depends on your history!

[nat1123]

Hi,

Firstly, thank you for your replies! I really appreciate all help/insight into this matter.

I was naturalised as a British Citizen in 2006, but I came to the UK in 1999. Throughout most of this time I worked in the UK. I go back to Poland once a year or so, I have a flat there, some friends etc, and I do hold a Polish passport and ID card etc. I don't know if this sheds any light on the situation. Either way, none of this information was asked for with my application.

I was aware of the fact that this situation is a bit iffy and the consideration of dual nationals as solely British. The reasons I applied for the EEA Family Permit are as follows:

1) Three different Home Office helper people told me that I am eligible.
2) Several solicitors told me I am eligible.
3) It's free, so I thought I will give it a shot.
4) I meet the criteria for my husband to get the normal British marriage visa anyway.

If the decision was "well, you're a British national too so you will be considered as such and so you can't use the fact that you are Polish too" - that would have been fair enough - I was sort of thinking that this is very likely, and I would have accepted that as fair enough. But the fact that three different home office people told me that I am eligible to apply for the EEA Family Permit and the fact that the decision said "oh, you didn't prove that your spouse is an EEA national" made me so frustrated and confused.

What do you recommend that I do now? Is it worth doing an appeal or another application? Or should I forget about it and start on the normal British visa application?

Thank You!

[Directive/2004/38/EC]

I was naturalised as a British Citizen in 2006, but I came to the UK in 1999. Throughout most of this time I worked in the UK.

Can you be more specific please! The devil is in the details!

When were you born?
When did you come to the UK?
Did you work in the UK before 2006?

[nat1123]

Sure.

To answer your questions specifically, I was born in Ukraine, I worked in the UK since 2003 more or less continuously, and I came to the UK in May 1999.

The long story is that I am originally from Russia/Ukraine and came to live in Poland in the early 90s. I eventually got Polish citizenship in 1999 and gave up all my other citizenships at the time (so I was a Polish citizen only). I came to the UK in 1999 as a Polish citizen and for a while I did not have the right to work, then I studied a professional course in the UK and went on to work in that profession in the UK since 2003 up till now, with breaks between jobs, but more or less continuously. In 2005 I got Indefinite Leave to Remain and in 2006 I was naturalised as a British Citizen.

A few months after I came to the UK, I applied to be an asylum seeker. My application for ILR was granted on the basis of Article 8 of Human Rights. I would rather not go into more detail than this.

In Poland, I still have a flat, I go back from time to time to see friends (about once a year for a week or two), I have used my Polish passport from time to time for travel - in places where it is preferrable to using a UK passport. In the UK, for a while I worked as a Polish national (before I got naturalised). I never needed to apply for a residence card or anything like that in the UK.

However, none of this information was ever asked for by the office where my husband applied for the EEA family permit.

I tried to be as thorough as possibly without revealing any personal details I hope it's enough to form a reasonably good view on what I should be doing next...

Thanks

[Directive/2004/38/EC]

I am originally from Russia/Ukraine and came to live in Poland in the early 90s. I eventually got Polish citizenship in 1999 and gave up all my other citizenships at the time (so I was a Polish citizen only). I came to the UK in 1999 as a Polish citizen and for a while I did not have the right to work, then I studied a professional course in the UK and went on to work in that profession in the UK since 2003 up till now, with breaks between jobs, but more or less continuously. In 2005 I got Indefinite Leave to Remain and in 2006 I was naturalised as a British Citizen.

This is the key bit.

OK, so the situation is as follows. The UK implemented the results of an ECJ decision called McCarthy. But they have done it badly and incorrectly. See http://eumovement.wordpress.com/2012/07 ... y-british/

Should should not be touched by the McCarthy ruling because you have clearly exercised your treaty rights in the UK by working after Poland joined the EU and before you naturalized. So if you read McCarthy (in the link I sent), you are clearly not a McCarthy!

UKBA seems to not be fully using their flawed new rules, either because of a realization that they are flawed or because they are too disorganized to actually implement them. My money is on both!

[nat1123]

Thank you so much for the reply!

If I am interpreting everything correctly, my husband is eligible for an EEA Family Permit because even though I am a dual UK/Polish national, I have exercised treaty rights in the UK in the past, and therefore am not covered by the McCarthy judgement.

Bearing this in mind, what is your advice on how to proceed? Should I launch an appeal against the Entry Clearance Officer's decision or make a new application, or both? It would have been nice to be in the UK in time for the holidays... Should I include the above paragraph in the "Grounds for Appeal" section along with a photocopy of my Polish passport?

You confirming that my husband is eligible for this visa is such a huge relief for me - so thank you for this. The situation with this decision is so frustrating though because of the silly reason given for rejecting the application...

Thank You!

[Directive/2004/38/EC]

I should warn that I am not a lawyer and so (obviously) can not advise you. But I do not see any reason that you will not (eventually!) get the EEA FP. And I think the law is on your side.

When would an appeal need to be lodged by?

[nat1123]

The appeal would need to be lodged 28 days from 19/11/2012 so by 17/12/2012 (trying to avoid our home secretary's mishap!) I also still have my payslips from 2003-2006 so I could send these in with the appeal as proof that I did exercise the treaty rights...

[nat1123]

Hi,

There is an update to all this. I made the appeal and now I have a hearing in mid May. I submitted all the documents again, plus my passports etc. The decision has been "reviewed" by the Entry Clearance Manager and this is what it says:

"The decision to refuse the application has been reviewed by the Entry Clearance Manager in light of appeal... I have reviewed the decision taking into account the grounds of appeal and additional evidence.

I am not satisfied that the appellant has satisfactorily adddressed all the concerns raised by the ECO in the Notice of Refusal. The fact that they have not taken the opportunity afforded by the appeal to address these concerns only serves to cast further doubt on the credibility of the application and therefore on the intentions of the appellant once in the UK.

In light of the above I am satisfied that the original decision to refuse was correct and is in accordance with Immmigration Rules and uphold it."

Now, the ONLY "concerns" raised by the ECO were: "Your spouse is a British national and you have presented no evidence of her holding dual nationality with an EEA member state."

This is literally the only thing mentioned in the original refusal, and in my opinion it is more than adequately "addressed" by me supplying copies of my UK and Polish passpors!

The reviewing of decision by the ECM is therefore scandalously ludicrous! What on earth are the concerns raised by the ECO that were not addressed and how does that cast doubt on the credibility of the application!? The allegations made and the tone of the refusal is simply preposterous!

As I said, my hearing is in mid-May.

I would appreciate any insight you may have into this nonsense decision as well as any help you might have regarding the hearing, especially with the preparation of documents and what I need to send.

Am I correct in my understanding that I need to copy all of the documents relevant to my application twice and send one copy to the Tribunal and one to Home Office, and include in those sets of documents a statement explaining my grounds of appeal?

[EUsmileWEallsmile]

You might find that the words used as a standard (and not considered) response.

[vinny]

Perhaps you should ask for damages after you win the appeal.