"Those who have been granted Temporary Admission have no immigration status"

I got a response to my FOI request, so I decided to Fire off an email in reply to it.  The main problem being: The response was clearly a little discriminating.
Subject: Complaint as to IS96 reporting conditions
From: My @ Email
To: [email protected]; [email protected];
Cc: [email protected];
Bcc:
Date: Thursday, 28 February 2013, 2:56
Name Address
Dear Sirs,
FAO: Paula Scott, Senior Caseworker.
I am writing to you in regards to the application of my wife: Mrs x
Royal Mail Package: x (Delivered on 15th Jan 2013) HO Ref: x and Case ID: x
(This is further to all of my previous emails / letters ETC to which I have failed to receive a reply)

 

So, after receiving a response for my FOI in regards to an IS96 document ETC, it seems apparent that my wife should not legally be required to report to UKBA ETC.
My FOI request can be seen here:
The specific section of the request which I refer to is the following:
—-begin quote—-
Some people given Temporary Admission will be neither an asylum seeker or failed asylum seeker. Those who have been granted Temporary Admission have no immigration status, are liable to removal and can generally avoid a breach of their rights by returning home. It is the claimants’ responsibility to return home and not the Secretary of State’s responsibility to support those who choose to remain in the UK illegally.
—-end quote—-
The problem being: my wife is not remaining in the UK illegally. She has a derivative right of residence – and therefore DOES have an immigration status!
She does not hold a UKBA issued Residence Card ETC, but your own document located here:
States
—-begin quote—-
Residence Documents issued under the Immigration (European Economic Area) Regulations are not mandatory.
—-end quote—-
A derivative right of residence falls under the Immigration (EEA) Regulations.
Therefore, as previously requested, I would expect a written response to this email, along with all other messages, within the next seven days. I have not received a response in connection with the complaint raised yet even more members of staff at the UKBA seem to figure it is fine to suggest immigrants to the UK return “home”.
The definition of “home”:
How can it be considered OK to refer to somebody’s country of nationality as “home”, and to even suggest that an “applicant” return “home”. Surely this is a clear breach of discrimination laws!
Obviously, UKBA should be treating ALL people equally, regardless of race, nationality, religion ETC. The comments which have been made to my wife, and are even in writing on this document clearly do not demonstrate this!
I wrote to you on the 14th Feb, and received a response giving a five working day response timeline. No message has been received.
I raised a complaint on behalf of my wife, and nothing has been actioned with this complaint. I would therefore expect to know the next step on the complaints process… As you can see, these messages have already been sent onto my MP. This case has been ongoing for over three years.
On the judgement of Case C-34/09 which stated the parent of an EU citizen has the right to live and work in the member state my wifes reporting conditions should of been halted, as her “Temporary Admission” was a Derivative Right of Residence. – Regardless of whether she registered via the EEA2 / DRF1 forms – as your own documents state that an EEA application is NOT MANDATORY!
Yours,
Mr P

EEA (European Economic Area) Applicatons Are Not Mandatory

27-02-2013
EEA Applications are not mandatory.  They are not mandatory… OK… So why doesn’t UKBA remove the restrictions on my wife?
Subject: Complaint as to UKBA Staff, EEA2 Application, COA, ETC.
From: My @ Email
To: [email protected]; [email protected]; [email protected];
Cc:
Bcc:
Date: Wednesday, 27 February 2013, 5:32
Mr P [Address]
Dear Sirs,
I am writing to you in regards to the application of my wife: Mrs x
Royal Mail Package: x (Delivered on 15th Jan 2013) HO Ref: x and Case ID: x
After reading numerous documents on the UKBA website, I my attention was drawn to this document:
I note on page 3 the following is stated:
European Residence Document-– (Residence Certificate)
3
n/a
£55
European Residence Document – (Document certifying permanent residence)
3
n/a
£55
European Residence Document – (Residence Card and Derivative Residence Card)
3
n/a
£55
European Residence Document – (Permanent Residence Card)
3
n/a
£55
……..
3 Residence Documents issued under the Immigration (European Economic Area) Regulations are not mandatory.

 

Therefore, as we have already concluded that my wife has the legal right of residence in the UK based on a Derivative Right of Residence as per Case C-34/09, and an utter failure on UKBA to respond to my previous message dated 14th Feb 2013.
UKBA cannot legally attempt to remove my wife from the UK. To do so would breach her right of residence which is afforded to her by both UK and EU legislation.
I would also expect a response as per the complaint raised in regards to the handling of my wifes case with yourselves, and a response as to why neither my daughters, my wifes nore my own passport has been returned to us. As it is clear that you cannot legally hold an active Administrative Removal case against my wife, it is clear that my wifes documents must also be returned to us.
I also question (and you can consider this a freedom of information request). As an EEA national family member does not require posession of a Residence Card to prove their right to reside and their right to work in the UK. What information is being provided to airlines / border officials to allow the entry of family members of EEA nationals into the UK when they do not hold a residence card.
Also, as my wife as the right to employment being the parent of a british child, whom is dependant upon her (well, infact multiple british children – two), I see not notification to employers in your manual clearly outlining the derivative right of residence to parents of UK citizens.
I notice that your employment checking service does not allow employers to check the elegibility of an employee unless they have an active application in with the UKBA. Does this not suggest that it is a mandatory process for a non-eea national family member to aquire an EEA family residence card?
What information is provided to an employer to confirm the rights of the family members of an EEA national excersising their treaty rights.
What information is provided to an employer to confirm the derivative rights of a parent of a british citizen.
I have read numerous reports about EEA family members who are Non-EEA nationals encountering problems on entering the UK if they do not hold a current UK visa. Does a Derivative Right of Residence (birth certificate of a british child to a non EEA national mother) confirm a persons right of entry into the UK – as a Derivative Residence card does? As a document is not mandatory… it appears that other forms of proof are acceptable to provide the confirmation, can you please provide a list of proof which would allow reentry into the UK for a person with a derivative right of residence…
Yours,
Mr P

Application for a Drving License

Salt in their wounds?

13-02-2013
Help with a Driving License application…
After my little “mini-win” of actually making UKBA send out a FULL Certificate of Application to my wife https://www.whatdotheyknow.com/request/certificate_of_application_5
I thought that I might as well,  see about obtaining my wife’s UK driving license.
I therefore contacted the DVLA.  After a chat on the telephone with the guy at DVLA (and a very friendly and helpful guy he was – somebody who TRUELY UNDERSTOOD the concept of Customer Service – I can’t remember his name, But I remembered to thank him)
I therefore fire off a quick email for the following:

Subject: Re: Complaint as to UKBA Staff, EEA2 Application, COA, ETC.
From: My @ Email
To: [email protected];
Cc:
Bcc:
Date: Wednesday, 13 February 2013, 16:41
Paula,
Thank you for replying to this matter.
My wife has also been in contact with the DVLA in regards to gaining her Driving License. She has been told that she would need to provide the following in order to apply for her driving license in the UK (as she currently holds no RC / Valid Passport – passport is with yourselves at Euro Liverpool).
driving license applications without sufficient photo ID must provide at least one document from list a and four documents from list b:
—————
list a (one document)
immigration status document, ISD – UKBA. home office issued travel document home office certificate of identification
list b (four docs)
expired european or none european passport
expired eu id card
national insurance card
photocopy of benefits letter
marriage or divorce cert
pay slips
p45/p60
Home office / dept WP letters
As we currently have sufficient documents from list b, the only problem my wife has with gaining her driving license is one document from list a.
DVLA have said that an Immigration Status Document (refered to as an ISD) , Cert of ID or Home office issued travel document is needed.
Can you confirm as to how my wife would gain one of these documents… Obviously, the COA provides proof of entitlement to live and work in the uk for 12 months (to get a driving license you need to be resident for six months) but DVLA are unsure as to whether a COA would constitute to the meaning of a ISD. Can you clarify please?
Also, I note that my wife would need a copy of her passport so as to be able to apply for work positions in the UK (satisfactory proof of ID – and proof of ID for her National Insurance Number) – She has an appointment with DWP on 20th Feb to gain her NINo. can you please advise as to whether the COA will be suffienent ID to gain her NINo for the purposes of ISD?.
Thanks,
Mr P

I was rather surprised to receive the following:

Subject: RE: Complaint as to UKBA Staff, EEA2 Application, COA, ETC.
From: EREC ([email protected])
To: my @ email;
Cc:
Bcc:
Date: Thursday, 14 February 2013, 16:43

Dear Mr Pearson,  [Wrong name?]

Thanks for your email. An Immigration Status Document is usually an immigration vignette which is not endorsed in a passport. So in effect, it is a decision on an application.

I’m afraid I can’t advise as to whether DVLA or DWP would accept a COA as appropriate for their purposes as UKBA do not govern these bodies.

 

I hope this helps,

Kind Regards,

Paula

—-
Bit of a Lie there though, Considering UKBA have no end of input into the decisions that influence the way these other bodies work…

Getting the "Big Boys" Involved

13-02-2013
Time to bring in Solvit and the Member of Parliment?

At this point, it was five days without a response from UKBA.  I therefore decided to “Flex some muscle” and involve Solvit and my MP.

Subject: Complaint as to UKBA Staff, EEA2 Application, COA, ETC.
From: My @ Email
To: [email protected]; [email protected]; [email protected]; [email protected];
Cc:
Bcc:
Date: Wednesday, 13 February 2013, 2:05
Mr [My Name]
[Postal Address]
Dear Sirs,
I am writing to you AGAIN in regards to the application of my wife: Mrs [Wife’s Name]
Royal Mail Package: Package (Delivered on 15th Jan 2013) HO Ref: x and Case ID: x
(In case you are going to request further reference numbers, the return barcodes of provided are: x and x)
This is not the first time I have contacted yourself in regards to this matter… Please see below for previous messages.
On 8 March 2011 the European Court of Justice (ECJ) ruled in the Zambrano case C 34/09 http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-34/09, that an EU member state may not refuse the non-EU parents of a dependent child who is a citizen of, and resident in, an EU member state the right to live and work in that member state. As you can see from the documentation provided for my wifes EEA2 application, she has two dependant British Citizen children.
I am therefore requesting that further to previous emails to yourself, and additional postal letters this situation be resolved.
My wifes Certificate of Application failed to confirm her right to work within the UK. This is not the case. As evidenced in the case above, my wife already has the right to work in the UK, and UKBA must confirm this right.
EU Legislation states that a Certificate of Application must be processed IMMEDIATELY. I am therefore expecting a fresh COA to be sent to my wife, MRS [MARRIED NAME] (Again, you have proof of her name – our marriage certificate). Your COA gave a couple of examples of when you cannot verify a persons right to work within the UK, however, none of the examples provided apply to my wife.
I note that as EU law states that my wife has a Derivative Right of Residence within the UK, she cannot therefore be deported from the UK. Failure to grant my wife permission to work effectively leaves our children in a state of destitution. We have limited funds to survive, by failing to verify my wifes right to work within the UK this situation is worsened, and could effectively mean our children are foced to leave the UK so as to be able to survive.
I have also sent this email to my local MP, and am hoping that something is done in relation to this. In addition to this, I will be filing a formal complaint with SOLVIT in relation to the manner in which her case is being handled.
In addition to this, I have previously requested the return of the passports included in the application…
Under EU Law, upon request, documents should be returned ASAP (and within your own guidelines within 20 working days). My passport is required for employment and identification purposes (however – I do not legally have to provide a reason as to my need for my passport to be returned!)
I also direct your attention to the message below, in relation to “Richard” at the UKBA reporting centre on Homer Road, Solihull. The attitude of this member of staff (in addition to that of “Reena” – I am unsure as to whether this is the correct spelling of her name).
This member of staff outright told my wife that she would not be permitted entry into Ireland (Republic of). He is not in a position as to 1) Give immigration advice, 2) Dictate as to Irish imigration proceedures.
In fact, I provide the attached emails from the Irish Embassy here in London – neither email even hints at the fact that my wife could be refused entry into Ireland – the reason being Directive 2004/38/EC does not allow for her refusal of entry bar: Article 22 – Public Policy, Public Security and Public Health (none of which apply).
Again, Perhaps it is wise for UKBA to read the actual legislation which it is required to follow as per EU LAW also covering the UK. Particularly Article 23.
Also, dating back previously to this: The United Nations Convention on the Rights of the Child, of 20 November 1989 – which particularly protects the links of a child to their family members.  (This case has the following children: Chloe x, and Charlie x).
Now, Please respond in relation to all of the points raised within this email. I note that neither myself nore my wife have recieved any response to our written communication to yourselves (letters delivered by Royal Mail).
Yours,
Mr W

(The letters between myself and the Irish Embassy are included in “Emails to the Irish Embassy”)
In the morning, after a nice “sleep” I checked my email (on my mobile – Very convenient I must say)

Subject: RE: Complaint as to UKBA Staff, EEA2 Application, COA, ETC.
From: Korcz Christine (ETID) ([email protected])
To: My Email
Cc:
Bcc:
Date: Wednesday, 13 February 2013, 8:36
Good morning Mr P
In order to take forward a complaint against the UK, I will need to identify which Member State you have previously resided and worked in. As SOLVIT is a network between Member States, it is for the SOLVIT Centre in the Member State where you have previously resided and worked that should pursue a complaint against the UK.
Regards
Christine Korcz
UK SOLVIT Centre
Direct line: 020 7215 2833

——
After a few emails back and forth, I was told that I would need to complain to the Finnish Solvit Team – As it was in Finland where I had previously excersised my right of free movement.
So I fired off the following message:

Subject: Fw: Complaint as to UKBA Staff, EEA2 Application, COA, ETC.
From: My @ Email
To: [email protected];
Cc:
Bcc:
Date: Wednesday, 13 February 2013, 13:11
Dear Sir/Madam,
I am writing to you today in reference to my Wifes EEA2 application lodged with UKBA. I am a UK British Citizen, who has excersised my right to work in Finland, in 2004. I worked at the Espoo Institute of Business during the summer of 2004. I am therefore for the purposes of Directive 2004/38/EC essentially to be treated as the national of an EEA member state (In this case Finland) for the purposes of my return to the UK.
Since return to the UK, I have been an Employed Worker – and “Excersised treaty rights” within the UK. I have made this position clear to UKBA.
My wife ([Married Name] – formerly [Maiden Name]) is a third country national (NON-EEA) from Indonesia. We have two British children together: Chloe X, born 11-09-09 and Charlie X born 21-7-12. Meliana is the Primary Carer for our children. The children being physically and emotionally dependant upon their mother.
As I outline in my post to the UKBA, my local MP and Solvit based in England, on 8 March 2011 the European Court of Justice (ECJ) ruled in the Zambrano case C 34/09 http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-34/09, that an EU member state may not refuse the non-EU parents of a dependent child who is a citizen of, and resident in, an EU member state the right to live and work in that member state. The ruling:
On those grounds, the Court (Grand Chamber) hereby rules:
Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
By UKBA failing to to verify my wifes right to reside and work within the UK they are depriving my children the rights attached to the status of being EU citizens. I had a response from UK Solvit who informed me that my complaint needs to be raised via the Finnish Solvit department, and that they could not raise complaints against the UK themselves. I would therefore appriciate that you could deal with this matter on behalf of myself and my wife.
My wifes name is: Mrs [Married Name] (Maiden name, before marriage, Miss [Maiden Name])
My name is: Mr W
Our address is [Postal]
Thanks,
W
—– Forwarded Message —– From: My @ Email To:[email protected]” ; [email protected]; “[email protected]” ; “[email protected]Sent: Wednesday, 13 February 2013, 2:05 Subject: Complaint as to UKBA Staff, EEA2 Application, COA, ETC.

I found it rather reassuring when I received the following messages within minutes of each other:

Subject: VS: Complaint as to UKBA Staff, EEA2 Application, COA, ETC.
From: [email protected] ([email protected])
To: My @ Email
Cc:
Bcc:
Date: Wednesday, 13 February 2013, 13:44

Dear Mr P,

 

Thank you for contacting the Finnish SOLVIT centre. We will look at your case and come back to you on this.

 

Kind regards, Leila Vilhunen SOLVIT Finland Ministry of Employment and the Economy

——-
And then this one:
——- Subject: FW: Complaint as to UKBA Staff, EEA2 Application, COA, ETC. From: EREC ([email protected]) To: My @ Email; Date: Wednesday, 13 February 2013, 13:44
Dear Mr P,
Thank you for your email which has been passed to me for a response. I can advise that a full Certificate of Application confirming your wife’s right to take employment has now been issued and sent out from our offices.
Please accept my apologies for this administration oversight.
I have also sent your request below for the passports which were submitted in support of your wife’s application to be returned to you. The submitted documents should be returned to you in the near future.

Thank you for your patience in this matter

Kind Regards,
Paula Scott
Senior Caseworker

——-
This was therefore a little “Mini-Win” on this point…