EEA FP refusal (again) Desperately need help

[Directive/2004/38/EC]

I just quoting same wordings from decision

“ the burden of proof is on the appellant and standard of proof is on the balance of probabilities, in this instance the appellant would have to establish , on the balance of probabilities that EEA sponsor is resident int the UK or accommpying the appellant within 6 months time, although there is a photocopy of the residence card on file but there is no recent statement from EEA national as to her whereabouts. the EEA national was also not present at the hearing to confirm that she is present in the UK or supporting the application as may be expected. there is no evidence front of me that eea national currently exercising treaty rights.
Decision: appeal dismissed”

I submitted following documents with my appeal bundle
1- bank statement with my wife name and home address
2- EEA national passport + child ID
3-reseidence declaration certificate from local council ( for all fmaily with names)
4- letter from her that we all traveling together including my eea national child

Did you include your wife's passport in the appeal or a copy of it?
Was the residence declaration from the gemeinde in any way translated, or was it all in German? (Remember that this is a British judge who is reading it).
Why did you include a bank statement?
Did you include the birth certificate of your child which lists you as a parent?

I am not sure that balance of probabilities applies in this case, but I am not 100% sure.

yes i did addressed all points which were given in refusal notice by ECO, even i raised cases refernces.
bais was direct fmaily permit refusal but FTT judge didnt comment anything except what i wrote in above decision paragrapgh.

[...]

rememebr i submitted quite few evidences with my bundle including presence of my wife with me.

Can you please list out the evidence you included in the application and bundle and application that shows you are living with your wife. You should carefully do this in a further appeal also!

Exactly what case law did you mention and how?

[scorpio1]

thanks directive come back to me,
answers are as follows
Did you include your wife's passport in the appeal or a copy of it?
YES a copy of it

[/b]Was the residence declaration from the gemeinde in any way translated, or was it all in German? (Remember that this is a British judge who is reading it).
yes translates into english and varified by notry public

Why did you include a bank statement?
without any reason i think, i mean no legal requiremnt but there was name/address

Did you include the birth certificate of your child which lists you as a parent?

just ID card not birth certificate, as there was no any dispute on child in refusal

plus included a letter my wife that we all travelling together, which indeed missed my judge.

cases law i raised, we discussed earlier greece one (marriage of convenience) plus couple of cases got from some one but same as i got refusal but those case are not online( remmeber those cases are success even at FTT) plus Naz (subsisting marriage – standard of proof)
but what i got answer from EU home affair office its very clear and even i mention it in appeal that as confirmed by the the Court of Justice of the European Union( see, case C-503/-03 Commission Vs Spain), As this right is derived from then family ties only, the UK authorities may have required your spouse to present only the following documents
• Proof of his identity e.g valid passport
• Proof of family ties e.g valid marriage certificate
• Proof that you are exercising EU treaty free movement rights in the UK at the moment or will be exercising these rights at the moment of your spouse’s arrival to then UK

No other documents such as proof of accommodation, employment, sufficient resources or salary, any invitation letter or return ticket can be requested

ECo refusal was on different issues and judge raised a different one i surprised on it.

my nationality is written wrong, respondant is home secrtary not eco, and even written file from respodant there included my education degrees even i never submitted such documents with application form.

[Directive/2004/38/EC]

I would definitely appeal.

I would urge you to include a copy of your child's birth certificate. It is clear proof that yours is not a marriage of convenience, which the original refusal was partly about. Your child's passport is 100% unimportant; it is the birth certificate which is important.

If you want to go quickly to the UK, I would suggest you also reapply.

[scorpio1]

Morning,
I dont think reapply is solution, probablity is simply refusal again, even if i provide all documents out of legal requirement.

there are no laws error in this case(laws never discussed) but i think just need to raise issue why i am not satisfied with decision as i provided all documents with appeal bundle.
OR
anyother advice?

Thanks

[Obie]

I believe the Judge erred in Law. You should apply for permission to appeal to the upper Tribunal from the first tier tribunal. If that is refused, applt to the upper tribunal. I wish you all the best. Hope you have got the papers that detailed your sppeals rights.

[scorpio1]

Thanks all of you for help at this stage,
just little more help need to write in permission form, need to give reasons why i am not satiosfoed and what eerd in law there?

Thanks

[EUsmileWEallsmile]

I have not had to go through an appeal process, nor do I know what you used in your appeal except what you have posted.

To summarise, it appears to me that that the original application was refused on a particular basis, that you addressed these points in the appeal, yet these do not appear to have been acknowledged and the appeal was dismissed on another basis.

Is this a reasonable summary?

[scorpio1]

Thanks for comments
yes, you are CORRECT.

in appeal file i raised and attached all evidences against refusal points, even my spouse supported letetr which attched with original application.

Thanks

[keffers]

You provided a residence declaration certificate from the local (UK?) council but neither you nor your wife is are resident - you are both abroad.

If I understand it correctly, the Judge has taken it that you are applying to join your wife but there is no evidence that she is here. He clearly thought she should have been at the hearing.

What was the purpose of the residence declaration document?

[scorpio1]

residence declaration certificate from my local area, i mean where we all family living(not in the UK).

here its national law that we have to declare our residence place here.

Thanks for comments

[scorpio1]

hi all,
just thought to share my update on appeal,
and this time permission to go to UT refused by judge,
1- stated as my residence card application refused by respondent and earleir appeal result FT judge wrote wrong my nationality so its material errors not law

2-its clear from evidences that my eea national wife is outside of UK so she is not qualified under reg 6

3- we wish travel over the uk to see friends and relatives so i "appellant should be applying to visitor visa not a residence card"
remember that I applied for eea family permit not RC

Should i laugh or cry on such decision?

[scorpio1]

Any point of veiw on above decision,

thanks in advance for your time.

[EUsmileWEallsmile]

Have you considered reapplying?

[Obie]

At what stage in the appeal process are you at.

[scorpio1]

Thanks for some feed back.
@EUsmileWEallsmile... reapplying? FP OR go to UT?
and @Obie
yes i am ready to go to UT to get permission for reconsidering my appeal, as appeal determination is incorrect. not looked properly though and not according to EEA laws.
my appeal dismissed and refused by judge to get permission to go UT but now i have to write and raise point directly UT for reconsidering the case an dwhy i believ there are error in law(s), i am at this stage now.

thanks

[Obie]

You most certainly should. There seem to be lots of err in law. I have not see the decision but it looks like there are many errors. If you let it lie, UKBA may use it as a basid for future refusal.

[scorpio1]

thanks for quick reply,
yes indeed agree with you, there are quite few error of laws and i must go further.
pm me if you can i will email you court decisions.

cheers

[keffers]

UKBA guidance, although sometimes outdated or incorrect is quite clear on this point:

EUN02:

2.12.

If a family member who is travelling with, or is to join the EEA national in the UK requests a visit visa under the Immigration Rules, you should offer him (or her) the option of applying for a family permit under EC law free of charge.

So, you should have been guided towards an application under EEA Regs and not diverted away.

[scorpio1]

Thanks for reply,
yes its very clear though from above statement, but here scanerio is opposit, even judge advising appellant should be applying for vistor visa even all wishing travel together.
my application already based on eea route.
funny isnt?

[EUsmileWEallsmile]

Have you made another application? You would have the opportunity should you chose to do so of pointing out all the inconsistencies, errors in the previous refusals.

[scorpio1]

thanks for feedback,
i am going to submit application for permission to go tUT directly now, from FT its refused, even i raised error in laws there but
judge raised new points though.
in refusal FT judge asked about not sure where is eea national even enough evidences submitted where she is. and appeal dismissed

then FT judge refused appeal permission to go UT as stated my appeal misunderstood by judge and
1- stated as my residence card application refused by respondent and earleir appeal result FT judge wrote wrong my nationality so its material errors not law

2-its clear from evidences that my eea national wife is outside of UK so she is not qualified under reg 6

3- we wish travel over the uk to see friends and relatives so i "appellant should be applying to visitor visa not a residence card"
remember that I applied for eea family permit not RC


so this is latest scanerio.

i am not going to make any further eea family permit application.

cheers

[EUsmileWEallsmile]

I can see why one might want to continue with the appeal process (hope it's not costing too much).

Another application is another possibility...

[scorpio1]

ya new FP application is possible but most prob get refusal,
reason as same old one.
what do you think?

appeal work, i doing myself not hired any professional though.