Eea Permit Has Been Refused; Uk

[junglejimbo]

we have just had an eea family permit refused. it was for me wifes 2 sons ( 12 years old ,twins) .

why ? im lost !! all the immigration lawyers ( about 4-5 in total ) from the law centre in uk advised us that it would be unlawful for the ukba to refuse this permit.

i am a qualified eu member. ( irish and british passport holder )

i am permanentley incapacitated with liver disease. doctors letter / statement given to embassy.

i have resided in uk all of my life ( 45 years ) obviously spent time out of country in thailand but not long.

i am stil married to my wife ( not divorced )

my wife has been in uk 5 years now with resident stamp. totally legal

the biological father of her 2 sons has given a written statement of permission to ampher to let his two sons go to uk with mother and me.

2 sons have been tb checked with xray results etc

all relevant documents were submitted to vfs and checked .

i am excersing my eea rights as an irish national , married to my thai wife and want to bring our two kids to live with us in the uk.

2 sons have no one in thailand to take care of them, my wifes elderly dad was sole carer but her died last year and now 2 kids have been shifted from pillar to post by extended family members who dont seem to care about them, kids and my wife are heart broken now .

the reason on letter of refused stated : your eea sponsor cannot demonstrate he is a qualified member as we are not satisfied he has resided or been a resident in uk continuously for last five years. what ?????????????????

so its off to court we go, they have one hell of a fight on their hands now.

i have given ubka ample documents and letters supporting my residency in uk and much more. its not fair and its not fair on 2 young kids to be seperated from their mother like this.

[samran]

sorry to hear. May sound like a naive question, but can you re-submit the application but focusing on the area's they wanted to know about?

[siampreggers]

its not fair and its not fair on 2 young kids to be seperated from their mother like this.

They've been seperated from her for 5 years already?

my wife has been in uk 5 years now

Perhaps she should move back home.

Edited September 1, 2012 by siampreggers

[Eff1n2ret]

Sorry, it's got me beat as well. I can't see anything in the 2006 Regulations that require an EEA sponsor in your situation to have been resident for 5 years before he can exercise his Treaty Rights in respect of qualified members, which include offspring under 21 of the sponsor's spouse. Not saying you've misquoted or misunderstood the reason for refusal, but perhaps it might help if you could cut and paste the full reasons from the refusal notice?

You may or may not be aware that the ability of dual UK/Irish (or other EEA) nationals to qualify under EEA Regulations rather than UK Immigration Rules has been abolished by an update of the 2006 Regulations which came into force on 16th July (thus implementing the 'McCarthy' judgement). HOWEVER, the implementation of this particular provision is delayed until 16th October; also, as far as I can understand from the transitional arrangements in the Statement of Changes, there is nothing that stipulates a minimum period of residence for sponsors, and in any case if you applied before 16th July the application should have been treated under the Regulations in force at that time. Perhaps I have misunderstood the small print, but the detail of your refusal notice might make it more clear.

[junglejimbo]

hi,

yes the boys have been seperated from mother for 5 years allready, i didnt agree with this but thai,s have a different outlook it seems, she was happy for her father to take care as kids were happy and had lots friends etc, on hindsight i should of made the permit for them a long time ago when i was working.

i have submitted all the facts and more than enough papers to vfs , i actually had too much evidence i.e birth certs, marriage certs, previous payslips,bank statements, utility bills........

here is what the embassy have written on the refusal form -

you have applied for an eea permit to settle in uk with your mother who is the spouse of an eea national. your sponsor needs to demonstrate that he is a qualified person who is residing in uk in accordance with the regulations. your sponsor needs to provide evidence that he is currently excercising a treaty right in the uk or that he has aquired a permanent rightof residence by having previously excercising treaty rights in the uk for a continuous period of five years ( i have , and have given bills, pay slips, letters from housing office and social security )

you have however , failed to provide evidence that your eea family memberis a qualified person under regulation 6 of the immigration regulations 2006. alternatively, if yuor sponsor is permanentley incapacited , that he meets regulation 5 of the immagration regulations 2006 ( letter/statement from my doctor given to vfs ) i am however not satisfied that your eea national is residing in uk in accordance with the immigration regulations 2006 ( whatever that means )

this is surely against the law ? or am i and the immagration lawyers who specialise in eea permits wrong ?

[junglejimbo]

its not fair and its not fair on 2 young kids to be seperated from their mother like this.

They've been seperated from her for 5 years already?

my wife has been in uk 5 years now

Perhaps she should move back home.

really ? i wish it were that easy mate.

[Eff1n2ret]

The only thing I can glean from what appears to be a badly-worded refusal is this:-

You say you are permanently incapacitated.

Regulation 6 of the 2006 Regs says this:-

“Qualified person”

6.

—(1) In these Regulations, “qualified person” means a person who is an EEA national and in

the United Kingdom as—

(a) a jobseeker;

(B a worker;

© a self-employed person;

(d) a self-sufficient person; or

(e) a student.

(2) A person who is no longer working shall not cease to be treated as a worker for the purpose

of paragraph (1)(B if—

(a) he is temporarily unable to work as the result of an illness or accident;

The effective word there is "temporarily" - therefore, you can not qualify as an EEA national who is exercising his rights in the UK unless you have established Permanent Residence under the EEA Regs (which is where the 5 years comes in). So they seem to think that you haven't provided evidence of that, but given that your wife has been there for 5 years as a Family Member, I don't see how they can dispute that you have been exercising Treaty Rights as an Irish National for at least that period of time, even if you could never have been said to have done so during your previous life in the UK.

Edit:- on second thoughts, the period of "permanent incapacity" might be relevant - i.e. the date from which you ceased work and thereafter gave up all hope of further employment. But then the'yre second-guessing the UK caseworkers who conferred Permanent Residence on your missis.

Best thing is, as you were assisted by lawyers to present the application, get them stuck in with the appeal (if they are qualified). Maybe there's some way you can get the ECM in Bangkok to review the case - VisasPlus would be the best person to comment on that.

Edited September 1, 2012 by Eff1n2ret

[VisasPlus]

The only thing I can glean from what appears to be a badly-worded refusal is this:-

You say you are permanently incapacitated.

Regulation 6 of the 2006 Regs says this:-

“Qualified person”

6.

—(1) In these Regulations, “qualified person” means a person who is an EEA national and in

the United Kingdom as—

(a) a jobseeker;

(B a worker;

© a self-employed person;

(d) a self-sufficient person; or

(e) a student.

(2) A person who is no longer working shall not cease to be treated as a worker for the purpose

of paragraph (1)(B if—

(a) he is temporarily unable to work as the result of an illness or accident;

The effective word there is "temporarily" - therefore, you can not qualify as an EEA national who is exercising his rights in the UK unless you have established Permanent Residence under the EEA Regs (which is where the 5 years comes in). So they seem to think that you haven't provided evidence of that, but given that your wife has been there for 5 years as a Family Member, I don't see how they can dispute that you have been exercising Treaty Rights as an Irish National for at least that period of time, even if you could never have been said to have done so during your previous life in the UK.

Edit:- on second thoughts, the period of "permanent incapacity" might be relevant - i.e. the date from which you ceased work and thereafter gave up all hope of further employment. But then the'yre second-guessing the UK caseworkers who conferred Permanent Residence on your missis.

Best thing is, as you were assisted by lawyers to present the application, get them stuck in with the appeal (if they are qualified). Maybe there's some way you can get the ECM in Bangkok to review the case - VisasPlus would be the best person to comment on that.

I agree with all that you say, John, and I don't understand the decision myself. He surely has permanent residence in the UK after all this time ? I also think that the "permanent incapacity " might be the reason for refusal. Was the OP resident in the UK before he became incapacitated ? It seems so ( he has lived in the UK for 45 years ), so I wonder why he is considered unqualified.

As you say, if the OP has representatives, then he should use them. Any advisor in the UK should be OISC registered or an immigration lawyer, and he should be able to achieve much the same that I can. Otherwise, I would be happy to contact the Embassy to seek a review and explanation if the OP gives me the full background to the application, and the appropriate written permission to do so.

Time is of the essence here as asking for a review will eat into the time allowed to submit an appeal.

[7by7]

Maybe a silly question, but you simply say that your wife has a resident stamp.

Is this permanent residence under the EEA rules; or did she enter the UK under the UK immigration rules and so have ILR?

I also feel that there is much you are not telling us.. Your posting history shows that you have previously asked about trips not just to Thailand but also to Laos and the Philippines. Also that you own, or have until recently owned, property in Pattaya.

No reason why you shouldn't, of course; but owning property in Thailand; long absences from the UK; these could indicate that you and your wife may not have resided continuously in the UK. Which could be why they asked the questions you complained about here.

How did you answer those questions? What other questions did they ask?

Whether any of the above effects this application, I don't know. Both Eff1n2ret and VisaPlus know far more about the EEA regulations than I.

[VisasPlus]

Maybe a silly question, but you simply say that your wife has a resident stamp.

Is this permanent residence under the EEA rules; or did she enter the UK under the UK immigration rules and so have ILR?

I also feel that there is much you are not telling us.. Your posting history shows that you have previously asked about trips not just to Thailand but also to Laos and the Philippines. Also that you own, or have until recently owned, property in Pattaya.

No reason why you shouldn't, of course; but owning property in Thailand; long absences from the UK; these could indicate that you and your wife may not have resided continuously in the UK. Which could be why they asked the questions you complained about here.

How did you answer those questions? What other questions did they ask?

Whether any of the above effects this application, I don't know. Both Eff1n2ret and VisaPlus know far more about the EEA regulations than I.

Good points, 7x7. Could it be possible that the OP hasn't given us full details ? I have assumed that he has actually been residing in the UK permanently for 45 years as stated in the opening post. Hopefully he will explain.

[samran]

Wouldn't it be possible for the OP's wife to naturalise as a UK citizen and she could sponsor her children without the health issues which appear to be hindering the OP's application?

[Eff1n2ret]

Maybe a silly question, but you simply say that your wife has a resident stamp.

Your posting history shows that you have previously asked about trips not just to Thailand but also to Laos and the Philippines. Also that you own, or have until recently owned, property in Pattaya.

No reason why you shouldn't, of course; but owning property in Thailand; long absences from the UK; these could indicate that you and your wife may not have resided continuously in the UK. Which could be why they asked the questions you complained about here.

Good points, I think we're getting to the heart of the matter - re-reading the refusal wording, I note that it says

"you have however , failed to provide evidence that your eea family memberis a qualified person under regulation 6 of the immigration regulations 2006. alternatively, if yuor sponsor is permanentley incapacited , that he meets regulation 5 of the immagration regulations 2006 "

i.e. they're saying (i) his missis (the eea family member) hasn't demonstrated that she has been residing in the UK in accordance with the Regs or (ii) the OP's permanent incapacity has already disqualified him from the status of a "qualified person" under the Regs.

As you say, we have insufficient info to judge whether it is justified to refuse on those grounds or not.

What is interesting is that this seems similar in some respects to a query recently posted by another member (Scorpio?). As I recall he said his wife had returned to Bangkok in June to submit an application for one or more of her children to join them in the UK where she has a Residence Card as a Family Member (but not yet Permanent Residence) on the basis of his Dual UK/Irish Nationality and he has recently been declared permanently incapacitated. - And they were still awaiting a decision (although the date of application was not stated). The point is that they do seem to be looking closely at such applications, and if I recall correctly, they cannot refuse them without referral to a policy unit in the UK - so two things arise from that; firstly, that explains the delay in the normal time in deciding EEA applications, and secondly, if it's been looked at by a policy wonk in Croydon, they must be fairly sure of their ground in refusing.

[7by7]

Wouldn't it be possible for the OP's wife to naturalise as a UK citizen and she could sponsor her children without the health issues which appear to be hindering the OP's application?

If she is in the UK as the partner of an EEA resident then she would need to have held PR for at least 12 months, i.e. have lived in the UK for at least 6 years, before she could apply for naturalisation.

That her spouse is a dual Irish/British citizen doesn't change that; if she used his Irish nationality to enter the UK via the EEA route she cannot switch to being the spouse of a British citizen and has to follow the EEA route all the way through to naturalisation.

A moot point, anyway. If she is a UK resident she can sponsor her children without involving her husband at all; though not, I believe, via the EEA route.

[7by7]

Could it be possible that the OP hasn't given us full details ?

we have insufficient info to judge whether it is justified to refuse on those grounds or not.

Indeed.

junglejimbo, it would help tremendously if you could post the full refusal notice (deleting names, of course) without your inserted comments, rather than just the edited highlights.

You say that you sought legal advice before submitting the application. What comments have these advisers made regarding the refusal?

[ThaiVisaExpress]

Are you not the guy who contacted me several times & then you said it was a simple task of filling a few forms in ?

You did not in fact require anything from the Amphur all your wife had to do was demonstrate the children are hers.

Post the GV 51 please then we can look at the facts.

Edited September 1, 2012 by ThaiVisaExpress

[7by7]

Are you not the guy who contacted me several times & then you said it was a simple task of filling a few forms in ?

He is certainly the guy who posted here

just joined another great forum, got all the info i needed on there, so much for all the so called visa experts in this place

Seems that other forum was not so great after all!

[junglejimbo]

Maybe a silly question, but you simply say that your wife has a resident stamp.

Is this permanent residence under the EEA rules; or did she enter the UK under the UK immigration rules and so have ILR?

I also feel that there is much you are not telling us.. Your posting history shows that you have previously asked about trips not just to Thailand but also to Laos and the Philippines. Also that you own, or have until recently owned, property in Pattaya.

No reason why you shouldn't, of course; but owning property in Thailand; long absences from the UK; these could indicate that you and your wife may not have resided continuously in the UK. Which could be why they asked the questions you complained about here.

How did you answer those questions? What other questions did they ask?

Whether any of the above effects this application, I don't know. Both Eff1n2ret and VisaPlus know far more about the EEA regulations than I.

hi,

my wife owns a house in pattaya , yes, though i fail to see where this can be brought into the equation ? also i have asked questions about going to phils etc only on a weeks holiday so i cannot for the life of me understand where that would matter either ?

i have for the record remained an eu / eea member from belfast uk. i was born in uk. i have both uk and irish passports. i have spent some time outside of uk in last five years but this time spent outside uk was only a few weeks holiday here and there .

i was advised ( by immigration lawyers / specialists from law centre ni 02890 244401 ) to get a letter from my doctor as to why i am permanently incapacitated, my doctor gave me this letter and this letter was submitted. ) i remember the lawyers telling me that if i was not permanently incapacited then i was not a qualified member and could not make the eea application on that basis.

my wife has a resident card now stamped untill march 2013 when its due to expire though she will be applying for PR very soon on the basis that i am permanently incapacitated.

the eea permit was submitted to ukba on the 30th june 2012.

thanks

Edited September 1, 2012 by junglejimbo

[junglejimbo]

Are you not the guy who contacted me several times & then you said it was a simple task of filling a few forms in ?

He is certainly the guy who posted here

just joined another great forum, got all the info i needed on there, so much for all the so called visa experts in this place

Seems that other forum was not so great after all!

well yes 7 , that was a rash post only because i waited 3 days for a reply. these visa,s etc are frustrating at the best of times !!

[Eff1n2ret]

i remember the lawyers telling me that if i was not permanently incapacited then i was not a qualified member and could not make the eea application on that basis.

If that's what the NI Law Centre told you then you have to go with that. I'm not qualified to disagree with them, but the way I read Regulation 6 it's the exact opposite. I also note this from the Entry Clearance Guidance:-

An EEA national claiming benefits in the UK would continue to be considered a qualified person if they were:

• A worker in receipt of top-up funds or tax credits for low income
  
• An EEA national working in the UK who has become temporarily unemployed (due to incapacity or involuntary unemployment) and is claiming public funds. A worker would still be considered temporarily incapacitated for as long as a doctor confirms that they cannot work but have the intention to do so. We would expect this to be for no longer than six months, although there may be cases where this could be extended (for example if we believe the EEA national has a reasonable prospect of returning to work or finding a job).
  

In certain circumstances EEA nationals who have ceased employment due to retirement or permanent incapacity would still have a right to reside in the UK.

So because you appear to have become permanently unemployed, i.e. not likely to be going back to work within 6 months, no longer looking for a job, etc you are no longer a "qualified person" as an EEA worker and therefore can no longer bring Family Members to the UK under EEA Regulations.

I've no idea what are the "certain circumstances" mentioned in the last sentence. Perhaps your lawyers do.

[ThaiVisaExpress]

As I did not prepare your application perhaps you never demonstrated you was a qualified person ?

As I already said a little more to this than filling a few forms which you declared in previous posts?

What did you insert with the application ?

[pigeonjake]

i think it will boil down to money, if you have savings then might be ok, but if your just getting incopasity benifits then i dont think they will let your wife staynever mind the kids,, you wouldnt be able to support them, and you cant expect the tax payer to suport them

[theoldgit]

well yes 7 , that was a rash post only because i waited 3 days for a reply. these visa,s etc are frustrating at the best of times !!

I realise how frustrating the whole process can be, but people must appreciate that whilst there are lot of professionals and experts on this forum who offer free and meaningful advice, they do so whilst juggling their private and professional lives, they don't sit by their keyboards all day waiting for a question - though I think they often do.

[Eff1n2ret]

......if your just getting incopasity benifits then i dont think they will let your wife stay....

I don't think it's fair to alarm the OP with comments like that. She should be able to apply for Permanent Residence because of Regulation 15 (d) of the 2006 Regulations, even without completing 5 years residence:-

Permanent right of residence

15.

—(1) The following persons shall acquire the right to reside in the United Kingdom

permanently—

(d) the family member of a worker or self-employed person who has ceased activity;

So, his situation is a little bizarre - because of his permanent incapacity, he no longer qualifies to sponsor further non-EEA nationals as Family Members, but also because of it his wife can acquire Permanent Residence.

Edit:- in fact, having just written the above I now wonder why the wife's children, who are defined as Family Members under Reg. 7, can't just apply for Permanent Residence straight off. Of course, an ECO abroad can only issue a Family Permit, so that's what it would have to be until they arrive in the UK. Maybe that is the standpoint of the OP's legal advisors.

Edited September 2, 2012 by Eff1n2ret

[7by7]

He is certainly the guy who posted here

just joined another great forum, got all the info i needed on there, so much for all the so called visa experts in this place

Seems that other forum was not so great after all!

well yes 7 , that was a rash post only because i waited 3 days for a reply. these visa,s etc are frustrating at the best of times !!

Approx 32 hours, actually. As the og says, all advice offered here is done so voluntarily and those offering it do have lives outside the forum.

As already said, it is difficult to offer anything except speculation about the reasons for this refusal unless you post the full refusal notice, removing only the names and any other information which could identify you, your wife or her children.

[David48]

You guys (members and Mods alike) do great work on this Forum.

Indeed you have a high tolerance level.

When the OP wrote in a previous post ...

just joined another great forum, got all the info i needed on there, so much for all the so called visa experts in this place

... then has the cheek and hide to come back asking more questions.

As has been said above ... there is more to this then that information being supplied by the OP.

On a side note ... congratualations to Eff1n2ret for raching the 1,000th post milestone ...

.

[pigeonjake]

i was only saying, if the OP cant go to work, his wife hasnt got a job then who will support them??

you answer me that

[junglejimbo]

well i cant work as im feeling sick most times but im going off sickness and going back to work . our kids lives are paramount and i will not let them be left abandoned !!!!

thanks for your help on this matter , i will be contacting a visa specialist in thailand after all, the reason i did not do so before was because i was actually advised ( on this forum and others ) that the eea permit was free of charge and i only needed to submit evidence as i did before with my wifes eea permit ( which only took 7 days to come through successfully )

[7by7]

So you're not going to post the full refusal notice, then?

I wonder why.

What happened to the farm in Issan?

[howerde]

On the subject of dual british/european nationals, why not renounce your british citizenship and keep you european citizenship, it makes no difference if you live in the uk(few exceptions of course), that way you could could still use european route. not my idea but read it else where

[junglejimbo]

So you're not going to post the full refusal notice, then?

I wonder why.

What happened to the farm in Issan?

what does it matter about any farm in isaan ?

also if you use your eyes you will see then the post i made yesterday giving the exact wording which was on the refusal letter.

i dont sit at my computer every hour so sorry about that . also i spoke to tony today from visa plus and he was very helpfull and gave me the best advice of which im very gratefull.

Edited September 3, 2012 by 7by7
Comments on moderation and personal attack removed.