We are appealing two decisions by the home office in my wifes case.
1) Refusal to grant a derivative right of residence 2) Regulation 9 refusal to grant right of residence on the basis that we were not married or live together in Finland before returning to the UK.
Both refusals have come with the right of appeal… and I think it is best to take both of these to appeal.
Now, I know that the human rights argument will be taken into account in court, and the chances (while nothing is impossible) of failing to overturn refusal are very slim on zambrano, im hoping to clear the fact of reg 9 too (and thus PR = we have been living together for five years now in the UK)
Refusal to issue a DRC. So Regulation 15A (4A), 15A (7) and 18A
Dear M T Ind… DOB
You have applied for a Derivative Residence Card as the primary carer of a British Citizen who is resident in the United Kingdom.. Your Application has been considered in accordance with Regulations 15A(4A), 15A(7) and 18A of the Immigration (EEA) Regulations 2006 (as amended) but you have failed to demonstrate that you have met the relevant conditions of these Regulations.
You do not have a basis of stay in the United Kingdom under the Immigration (European Economic Area) Regulations 2006.
As you appear to have no alternative basis of stay in the United Kingdom you should now make arrangements to leave. If you fail to make a voluntary departure a separate decision may be made at a later date to enforce your removal from the United Kingdom. Any such decision and associated appeal rights would be notified separately.
You are entitled to appeal against this decision under Section 82 of the Nationality, Immigration and Asylum Act 2002 and Regulation 26 of the Immigration (EEA) Regs 2006. A notice of appeal is enclosed which explains what to do and includes advice from the Legal Services Commission on how to get help.
Thee appeal must be made on one of more of the following grounds: * That the decision is not in accordance with the immigration rules * that the decision is unlawful because it racially discriminates against you * that the decsion breaches rights which you have as a member of an EEA National’s family under Community Treaties releating to entry to or residence in the United Kingdom * that a discretion under the immigration rules should have been excersised differently * that the decision is otherwise not in accordance with the law
If you consider that you have a right to reside in the United Kingdom as a matter of European law, and are in a position to submit the necessary information to support your application for a Derivative Residence Card as recognition of that right, you may alternatively wish to submit a further application.
Signed on behalf of the Secretary of State Date 12 July 2013
The decision clearly racially discriminates… They wouldn’t expect a british woman to leave the country… (can this be stated?) They wouldn’t expect an Indonesian wife of a French working man to leave the country. (Can this be stated?) – is it worth going into the whole Reverse discrimination scenario….
These three clearly apply: * that the decsion breaches rights which you have as a member of an EEA National’s family under Community Treaties releating to entry to or residence in the United Kingdom * that a discretion under the immigration rules should have been excersised differently * that the decision is otherwise not in accordance with the law
1) She has two dependant british children, emotional, physical and physcological dependancy not to mention Financial.
2) discretion… The IDI’s Zambrano and Article 8 guidance states clearly that the zambrano principle will be broken if taken into consideration with human rights. (We will attach this guidance)
3) Law: UNCRC and Article 24 both state that our children have a right to direct meaningful contact with both parents. Should my wife be removed this right will be removed from them, and thus, Zambrano is again clearly invoked, as the children are deprived of one of their key rights (Article 24 only has 3 rights listed….)
4) Human rights decision was not taken on this matter, despite a very clear request for the decision being sent. I had a respose from Rob Whiteman stating that the decision would not be made in accordance with Human Rights. However, the Human Rights Act clearly states that Human Rights MUST be assessed when any descision is made by an authority.
Next is the Regulation 9 refusal…
Reg 9.. ECD.3126 —- To: MT, Ind, DOB
[i]Note the following two paragraphs and differences….- Self Sufficiency looks enough….? [/i] You have applied for a RC as confirmation of residence as the family member of a BC who was previously residing in another Member state. However no evidence that you and your spouse lived together in another Member state prior to the UK has been supplied.
Furthermore, you have applied for a RC as confirmation of a right of residence as the family member of a BC who was previously working or self employed in another Member state prior to coming to the United Kingdom under the Immigration (EEA) Regs 2006.
As you appear to have no alterative basis of stay….. [same as above… – signed by the same nameless M] ——————————————————————————————
Now… the problem with this is I am still actively working in Europe… Carpenter case flies true with me so loudly…
I am a domain reseller for Hostinger Hosting LTD, (based in Cyprus). I additionally give free webhosting accounts out, in return for advertisement revenue, that I sell Google Adsense placements on (Google EU is located in the Republic of Ireland).
Thus, as I highlighted this caselaw to Rob Whiteman along with my domain names etc actually stating I still perform cross border activities… (although not extremely profitable) I do believe that I STILL fall under the category of Carpenter (C-60/00). I have proof in the form of Domain Renewals dating back to Relevant dates that have first been Registered on: 27-May-2005. I have no end of times reminded the Home Office of my system adminstrators experience (in various FOI requests)… It appears that they have negated to include these relevant facts in my wifes application for an EEA2.
I intend to send off with the appeal: my domain registration invoices to 1&1 internet who are located in the following countries: Poland, United Kingdom and USA. (Cross border sales). Google Adsense account information, and domain reseller information…
I will also send off my official certificate of employment from the Finnish Espoo Institute of Business where I worked as a IT Tech.
So we move onto the actual refusal reasons…
Thank you for your application for a DRC made on 14th Jan 2013.
An official has considered your application on behalf of the Sec of State.
You applied for a residence card on the basis that you are a third country national, upon whom a British citizen is dependent in the United Kingdom on the basis of the Court of Justice of the EU (ECJ) judgement in the case of Ruiz Zambrano (C-34/09).
This right of residence is not a free movement right but is a derivatie right. this means that the recognition of this right by the UK is not equal to the rights under Directive 2004/38/EC (the Directive). Recognition of a derivative right does not result in the beneficiaary of that right being treated as a qualified person for the purposes of the Regulations and therefore such a person cannot sponsor family members under the Regulations.
The ruling did not (emphasis by HO) state that the third country national would have the right to reside as the family member as defined under EC law. As you do not come under the definition of a “family member” under Article 2 of Directive 2004/38/EC, you are not entitled to a RC under current European legislation. A person who claims to have a derivative right of residence may apply for a Derivative residence card under Reg 18A if they are in the UK.
Reg 18A of the Immigration (EEA) Regs 2006 states that the Sec of State must issue a person with a DRC on application and on production of : (a) a valid identity card issued by an EEA state or a valid passport; and (b) proof that the applicant has a derivative right of residence under regulation 15A.
In order for you to qualify for a right to reside under the Ruiz Zambrano ruling you must demonstrate that: (a) you are the primary carer of a British citizen (the rrelevant BC); (b) the relevant BC is residing in the UK; and (c) the relevant BC would be unable to reside in the UK or another EEA member state if you were required to leave.
To be regarded as the primary carer Reg 15A(7) states that person (P) is to be regarded as a “primary carer ” of another if: (a)P is a direct relative or legal gardian of that person; and (b)p – (i) is the person who has primary responsibility for that persons care; or (emphasis added by me) (ii)shares equally the responsibility for that person’s care with one other person who is not an excempt person.
Excempt persons include: A person with a right of residence under another provision in the Regulations, A person with a right of abode under sec 2 of the 1971 act; A person to who Sec 8 of the 1971 act or any other order made under Subsection (2) of that provision applies; or A person who has ILE/ILR in the UK
Furthermore, to be considered the primary carer we would expect you to provide evidence to show that the child lives with you or spends the majority of their time with you, that you make the day to day decisions in regard to the childs health, education, etc and that you are financially responsible for the child.
In support of your application you submitted British passports for (ME) and (Daughter), a photocopy of your Ind passport, IS96 documents, A UK issued marriage certificate, UK issued Birth certificates for (Daughter and Son), a letter from Espoo institute of Business, HM rev and Customs tax credits letters, a tenancy agreement, a letter from (X) property rentals, a council tax demand notice and a voided prescritiption. (<- Note: Prescription was not voided, it was “recent medication” lists from my GP etc)
On 01May2013 this department wrote to you to request evidence that you are the sole primary carer for your B children, that you are providing full time care for your spouse, detailed evidence why your spouse is unable to care for your children, medical evidence that your spouse would be unable to care for your children, medical evidence that your spouse would be unable to assume full time care for your children, as you believe it would be detrimental to his health, and clarification of the information contained in his letter when it states “to expect myself to care for two your [sp – i wrote young] children would be detrimental to my own health and impose an element of risk for my children”.
On 20th may 2013 this dept received a letter dated 03 may 2013 along with a codeine phosphate box, and leaflets, lists of medication, statements of fitness for work (med3), NHS letters, a letter from Warwickshire City Council [sp again, it is county council] and a letter from Childrens Centre Stratford.
There is, however, insufficient evidence to show that the BC children [names] would be unable to remain in the UK/EEA, if you were forced to leave.
In this instance you have failed to provide sufficient evidence as to why the children’s father [me], is not in a position to care for the BC children.
[kids names] appear to have obtained B nationality on the basis that their father, [me], is a BC and is thus an exempt person. [me] registered [daughter] birth with you on 17th Sept 2009 and by your own admission you live together as a family unit. Mr P has therefore had what would be considered normal parental contact with the children.
Therefore, for the purpose of Reg 15A(7)(ii) you have failed to demonstrate that you do not share equally the responsibility for childrens care with one other person who is not an excempt person.
It is noted from your application form that you have referenced that you are still breast feeding [son]. However the fact that you are breastfeeding, in itself, does not confer a derivative right. Depriving the child of the ability to be breastfed by you if you are required to leave the UK is not regarded as depriving the child of the benefit of its rights as a union citizen. should this particular aspect of the case wish to be pursued then you may wish to make an Art 8 application as detailed later in this letter.
It is noted that you initially made your application on the basis that you were the primary carer of BC children as Mr P was in employment, Although Mr P does not appear to bee currently employed, it should be noted that it would be his choice to undertake any such employment and it would not negate his responsibilities for the children, or the fact that you share the responsibility for your childrens care equally with an excempt person. (Shocking, considering I am still employed by my employer…. where the heck does whether im employed factor into my ill health?)
You have subsequently stated that you are the PC of the BC children as Mr P has mobility problems.
This Dept wrote to you on 01/05/13 requesting evidence why mr p was unable to care for your children and medical evidence to show that mr p would be unable to assume full caring responsibility for your children, as you believed it would be detrimental to his health.
you have submitted a box and leaflet for codeine phosphate, a list of medication, and five fitness for work statements which suggest Mr p may be able to return to work with workplace adaptions, amendments to duties and a phased return, a physiotherapy appointment letter and leaflet regarding a back in action class.
none of which confirm why MR p is unable to care for your children or why caring for yur children would be detrimental to his health.
Consequently, this dept is not satisfied that you have demonstrated that you have met the requirements of Regs 15A(4A)(a) and (c) of the EEA Regulations, as amended [i](NOTE: Not a proper quote of the law… I thought they should quote it formally?)[/i], specifically that you are the PC of a BC and that the relevant BC/s would be unable to reside in the UK or in another EEA state if you were required to leave.
more over, you have, on several occasions, pursued the issue of a Certificate of Application and your right to take employment in the united kingdom.. You stated in your letter of 09 jan 2013 that “i would easily be able to find work at alternate times to my husband – whilst he would be able to temporarily care for our children to a decent amount with expressed milk etc”” Furthermore, you have stated “my daughter is now 3 years old and attending regular education at a local nursery.”
This information calls further into question your sole primary carer responsibilities as another person/s would care for your child/ren whilst you undertook such employment.. IT also suggests that you are prepared to express milk for your child.
In view of your statement regarding mr pearsalls mobility issues, this dept. has also considered whether you qualify for a DRC, as the Primary carer of a BC over the age of 18.
In cases where the BC is at or over the age of 18, then the level of evidence required to demonstrate primary and shared responsibility is significantly higher than in cases involving children. this is because it can geenerally be assumed that an adult has the capacity to care for their own daily needs unless there are reasons such as severe physical or mental disability, which would prevent this. Only on the provision of evidnece that shows the BC’s reliance on the primary carer will that person likely fall within the scope of the judgement..
In order to demonstrate primary/shared responsibility for adults, the majority of the care must be provided by the primary carer,. we would, therefore, expect to see evidence from the NHS/local authority/private care to support this.
appropriate original medical evidence should also have been presented which confirms the BC is and will remain wholely dependant upon you for their primary care. details should be provided as to whether any other sources of care are available and what the predicted effect would be on the BC if you were no longer able to care for them.
when this dept wrote to you on the 1/5/2013 we also asked you to provide evidence to support your claim that you were providing mr p with full time care.
Although you have provided lists of medication taken by mr p, fitness for work stateents, nhs …………. none of these documents states that mr p requires care of any level by you or that you are the only person in the uk who could now, or in the future provide him with such care.
as a result, this dept. is not satisfied that you are the primary carer of mr p, or that he would be unable to reside in the uk or in another eea state if you were required to leave.
In making this assessment the burden of proof remains on the applicant and the standard of proof is the balance of probabilities. This means that the onus is on you, as the applicant, to demonstrate that you are the primary carer of a BC, that you do not share equally the responsibility for a British citizes care with another person who is an exempt person and that your removal would force the british citizes to leave to UK/EEA.
Based upon these factors, the sec of state does not consider that you satisfy the requirements of the rDRC with regerence to Regs 15A(4A)(a),(c),15(A)(7) ad 18A of the Immigration (EEA) Regs 2006 as amended.
This dept has also considered you for a RC under reg 9 of the EEA Regs 2006, which relates to Surinder Singh ruling.
In order to qualify on this basis evidence needs to show that your British sponsor resided in another EEA member state other than the United Kingdom as either a worker or self employed person and evidence that you resided with your British sponsor in that other EEA member state, whilst he was a worker or self employed there.
Although you have submitted a letter from Espoo Institute of Business dated 15 September 2004 stating that Mr Pearsall worked there as a trainee for the period 16 August to 10 September 2004, there is no evidence to show that you resided in Finland with Mr Pearsall during that period. In fact, you state in your letter of 09 ]anuary 2013 that you arrived in the United Kingdom in May 2008, after which time you engaged in a relationship with Mr Pearsall.
Thus, you have failed to demonstrate that you qualify for a Residence Card under Regulation 9 of the EEA Regulations 2006.
This Department has noted your request to be addressed as Mrs M P. However, in order for this Department to change our records you will need to submit a valid passport in the name M Pe. Until such time as a passport is submitted in that name we will continue to address you in the name M T, as that is the name on the passport you submitted to this Department. The Home Office cannot comment on HM Revenue & Customs procedures in regard to a change of name.
You have stated that you also wish to rely on family or private life established in the United Kingdom under Article 8 of the ECI-IR. The Immigration Rules now include provisions for applicants wishing to remain in the United Kingdom on the basis of their family or private life. These rules are located at Appendix FM and paragraph 276ADE respectively. If you wish the Home Office to consider an application on this basis you must make a separate charged application using the appropriate specified application form (FLR(M) for the 5-year partner route, or VFLR (O) for the 5-year parent or 10-year partner or parent route, or FLR(O) for the 10-year private life route). For more information please consult the Home Office website – www.ukba.homeoffice.gov.uk Since you have not made a valid application for Article 8 consideration, consideration has not been given as to whether your removal from the United Kingdom would breach Article 8 of the ECI-IR Additionally, it is pointed out that a decision not to issue a Derivative Residence Card or Residence Card does not require you to leave the United Kingdom if you can otherwise demonstrate that you have a right to reside under the Regulations. Section 55 ($.55) of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act) places a duty on the Secretary of State to safeguard and promote the welfare of children in the United Kingdom when carrying out immigration functions. This means that a s.55 consideration must take place in relation to the children when an immigration function is being canied out or immigration legislation applied, but it does not mean that the children’s interests will necessarily outweigh these. The decision to refuse a Derivative Residence Card has been made after applying these considerations and I am satisfied that is correct under the relevant law and that in all the circumstances this is consistent and proportionate with the dutyin s.55. This is because although the effect is that you will not be able to reside in the United Kingdom on the basis of the right that you have claimed, your child will not be deprived of the genuine enjoyment of the substance of their rights as a European Union citizen. Furthermore, you have not lost the ability to apply and qualify for residence in the United Kingdom as a parent with a dependant child under the United Kingdom’s domestic Immigration Rules. In making the decision to refuse your application consideration has been given to the following: I EEA2 and DRF1 application forms. I British passports for Mr Pearsall and Miss P. I Copies of Indonesian passport. I IS96 documents. I United Kingdom issued marriage and birth certificates. I Certificate of Employment dated 15 September 2004. As you appear to have no altemative basis of stay in the United Kingdom you should now make arrangements to leave. If you fail to do so voluntarily your departure may be enforced. In that event we would first contact you again and you would have a separate opportunity to make representations against the proposed removal. Help and advice on returning home can be obtained from the Home Office on 020 8760 2290 between the hours of 9am and 5pm Monday to Friday Alternatively, help and advice for people who wish to permanently return home voluntarily can be obtained from the Refugee Action. Refugee Action is a registered charity that may be able to help you with: 0 Paying for flight tickets, _ 0 Travel arrangements – which includes booking flights, help with documentation and arranging travel to and from airports. 0 Airport assistance — both departure and arrival Also, depending on your case, reintegration assistance to support the sustainability of your return may be available.
Reintegration assistance can be used to help for a variety of things depending upon your needs: Additional luggage – Short term accommodation needs Setting up a small business job training Work placements Education 86 Vocational training Contact Refugee Action to find out more about -AVR programmes and discuss an individual or family Return Plan. All telephone enquiries are confidential and you do NOT need to give your name.
Refugee Action can be contacted at: Refugee Action The Old Fire Station 150 Waterloo Road London SE1 8SB Tel: 0808 800 0007 E-‘ mail: [email protected] refugee-action.org.uk email address should only be used if your local Refugee Action cannot deal with your query or if your query is an agency wide mattr.) Website URL: www.refugee-action.org.uk
Applicants who intend to return to make an entry clearance application will not be eligible to apply for voluntary return through any of the Refugee Action’s provisions. Responsibility for your case has now been passed to your local Immigration, Compliance and Engagement (ICE) team.-You should contact them (between the hours of 9am and 5pm, Monday to Friday) by telephone on O121 713 3229 to discuss your departure from the United Kingdom. It is important that telephone contact is made prior to you making any firm travel arrangements in order to allow adequate time for any documents to be retrieved from a secure place of storage. Regulation 26 of the Immigration (EEA) Regulations 2006 confers a right of appeal against this decision. However, this does not mean that if you choose to appeal you will be entitled to remain in the United Kingdom whilst the appeal is being considered. Please note that your entitlement to remain in the United Kingdom has solely been assessed on the basis of the Immigration (European Economic Area) Regulations 2006. If you consider that you are entitled to remain in the United Kingdom on the basis of other Immigration legislation then please visit the Home Office and submit an appropriate application for consideration. Alternatively, if you consider that you have a right to reside in the United Kingdom as a matter of European law, and are in a position to submit the necessary information to support your application for a Derivative Residence Card or Residence Card as recognition of that right, you may wish to submit a further application for consideration.
Miss M Pellow
I’ll post the letter that accompanied my wifes appeal form. – ALSO take note of all of my FOI request to the home office… EVEN the ones that were refused…