Category Archives: Pearsall-Immigration

appeal letter for Derivative Residence Card / Regulation 9

appeal letter for Derivative Residence Card / Regulation 9

24-07-2013
So below is a copy of the letter that has been sent to the Immigration appeal.  In addition to plenty of information etc.

So bear in mind the following, I am self employed, and so should our appeal fail, we can move (with difficulty) to Ireland and then return via the direct Singh route.  As my daughter is in school, we are instead going by this route (appeal).
We got in touch with numerous solicitors, none of them were willing to touch legal aid, saying it was too complex to apply for on the basis of HRA etc… so effectively, the Home Office have won in the respect that a normal person, with a normal income won’t be able to get any legal representation for court.
We cannot afford £3000 (at the low end) or £5000 (a usual rate) or possibly even more (lots of quotes were more) for an appeal. – And this was based solely on the Derivative Rights appeal.
So again, if it fails, it fails… doesn’t stop us trying though, does it…
£140 application fee for an Oral hearing, £15 to post off paperwork (3.5kg of paper documents – close to 1000 pages).
and now we’re waiting….
—————————————————————–
[wife] (Formerly [wife – maiden]) [address]

Date: 16th July 2013

First Tier Tribuneral (Immigration and Asylum Chamber) PO Box 6987, Leicester United Kingdom, LE1 6ZX Email: [email protected]

Ref: RE: [refusal number]

Dear Sir(s),

I am writing my letter along with my appeal to the First Tier Tribuneral Service.

I am appealing against the decisions made by the Home Office in relation to my case.  The reasons for my appeal are as follows:

1) The decisions are not compatible with current law. 2) Discretion under the Immigration Rules should have been exercised differently 3) The decision is not in accordance with the case law of Case C-370/90 (Singh), Case C-60/00 (Carpenter), Case C-34/09 (Zambrano), Metock (along with various other cases).

In the case of Singh: “THE COURT, in answer to the question referred to it by the High Court of Justice (Queen’ s Bench Division) by order of 19 October 1990, hereby rules: Article 52 of the Treaty and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order

to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the

Treaty in the State of which he or she is a national. A spouse must enjoy at least the same rights as would be granted to him or her under Community law if

his or her spouse entered and resided in another Member State. ”

In the case of Carpenter: “THE COURT, in answer to the question referred to it by the Immigration Appeal Tribunal by order of 16 December 1999, hereby rules: Article 49 EC, read in the light of the fundamental right to respect for family life, is to be interpreted as precluding, in circumstances such as those in

the main proceedings, a refusal, by the Member State of origin of a provider of services established in that Member State who provides services to recipients

established in other Member States, of the right to reside in its territory to that provider’s spouse, who is a national of a third country.”

Regulation 9 of the EEA Regs 2006 states: (3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport

issued by an EEA State for the purpose of the application of regulation 13 to that family member.

The  on the case of Jia v Migrationsverket (Case C-1/05) [2007] QB 545 and the statement in paragraph 35 of the judgment that:

“According to the case law of the Court of Justice the status of ‘dependent’ family member is the result of a factual situation characterised by the fact

that material support for that family member is provided by the community national who has exercised his right of free movement or by his spouse…”

The same is therefore true to clearly demonstrate that the Home Office and UK interpretation of Case C-34/09 is clearly flawed.

Paragraph 3 of the Reasons for Refusal states that I applied as the Primary Carer of a British Citizen.  I did, however apply as the spouse and primary carer

of an EEA national – Mr Wayne Brian Pearsall, and parent of TWO british Children – [daughter]l and [son]l.

I am aware that the UK do not consider a derivative right as a Free Movement right.  However, the current UK legislation outlines that discrimination against

against any group of people is unlawful.  Therefore I also state that the paragraph four outlines that the Equality Act is being breached by failure to treat

a group of people (those with a Derivative right of residence) inequally to another group of people (those with a Free Movement right of residence).  All the

same, my application did not request to sponsor any family members into the country who do not already have a clear right of residence.

Paragraph 5 states that I do not come under the category of “family member”.  I am the direct accending relative (mother) of two British children.  I am also

the spouse of Wayne Pearsall, A British citizen who has excersised his right of free movement in Finland (another EEA Member State) – and therefore is to be

treated equally to  another EEA national.  The definition of Family Member is assigned in the EEA Regulations 2006, the UK’s implementation of Directive

2004/38/EC – and I clearly fall within the scope of the definition of Family Member.

Article 2(1): “Union citizen” means any person having the nationality of a Member State;

Article 2(2): “Family member” means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of

the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of

the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

Article 2(3): “Host Member State” means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.

Having previously excersised his right to free movement and work within Finland, Mr Wayne Pearsall (my lawful spouse) then excersised his right to move back

to the UK – at which point he bears the status of an EEA National, and not simply the nationality of a British Citizen.

As Described on Page 2 of the refusal letter, in paragraph 2, and in the EEA Regs 2006,to be regarded as the primary carer I need to meet two elements.. a) Be the direct relative or legal guardian of that person *AND*; (emphasis added)

b)i) Have the primary responsibility for that persons care; *OR* (emphasis added) b)ii) share equally responsibility for that persons care who is not an exempt person.

I believe that point (b)(ii) clearly shows a degree of racial discrimination, as it makes it possible for the UK to override an EU declaration of the law on

the basis of another persons nationality and/or status in the country, which goes against the TFEU which is founded on the principle of EVERYONE being equal.

Paragraph 4 on page 2 explains that to be considered the primary carer, the Home Office would expect that I provide evidence to show that the child lives

with myself or spends the majority of their time with me, etc.

I met the requirements stated here by way of the letter from the Children’s Centre Stratford.  Please see the attached information on the purpose of the

Children’s Centre.  The Children’s Centre replace many of the Social Services and NHS core functions.  The letter from the centre states that in their

opinion I am the primary carer of my children.  However, as Article 8 ECHR states that a governmental department must have respect for the family and PRIVATE

LIFE that I have with my family, to expect further information, would clearly breach this fundamental right that we have under law.

In support of my application a Human Rights application letter was also submitted (also attached).  It made it very clear that the Home Office had a duty to

consider the implications of Article 8 ECHR when deciding my application.  Further more, numerous emails (and therefore written submissions in law) were made

by my spouse, Mr Wayne Brian Pearsall. Rob Whiteman, the former CEO of UKBA, replied to my Human Rights application stating that the Home Office would not consider Human Rights in my case.  This

fact has been ommitted in their refusal notice, but the letter is attached.  The Human Rights Act (and ECHR) states that in ANY decision made, the authority

must pay due consideration to our Human Rights.

Paragraph 8 of Page 2 states that there is insufficient evidence to show that the British Citizen children would be unable to remain in the EEA if I were

forced to leave.  This is untrue.  The Zambrano / Article 8 guidance issued (FOI 27354 – Annex A: Guidance on Zambrano and Article 8) states the following:

“(a) Cases where the primary carer is being removed or deported to a country outside the EEA, but a Zambrano right is refused on the basis that the British

citizen will be able to continue to live in the EEA with another parent In some circumstances the case worker will refuse to recognise that the adult migrant has a right to residence here on the basis of Zambrano because the

child or disabled adult could remain in the UK with another parent or carer and would not therefore be compelled to leave the EEA. Where a refusal is made on

this basis, and the case worker is then considering the Article 8 rights of the primary carer, they cannot conclude that there will be no interference with

family life because the family can live together as a family unit in a country outside the EEA. To do so would directly conflict with the basis upon which

recognition of the Zambrano right had been refused.”

This clearly demonstrates that the Home Office did not act in accordance with guidance issued to them by the secetary of state, nor did they excersise a

discretion afforded to them by the Secetary of state.

Furthermore, UNCRC Article 3(1), UNCRC Article 9 and the key part: Article 24 of the charter of the rights of European citizens, it is clear that the

expected removal of myself, the mother of British Citizen children removes key rights of European citizens, so much so that the Home Office themselves admit

that to seperate myself from my children would inflict on their human rights in a way that to keep the family life they would need to acompany myself to

Indonesia.

President Justice Blake of the Upper Tribunal set the criteria which the national courts should follow when determining cases with removal of non-eea parents

of a British citizen in line with Ruiz Zambrano and Zh Tanazania.  He set the rules in his determination of the case of Omuntunde vrs the secretary of state.

Paragraph 1, 2, 3 of the determination deals with Zambrano refusals. Not forgetting the determination of Lady Hale in ZH Tanzania.

On page 3, paragraph 3 it is noted about my breast feeding of our youngest child ([son]l).  The Home Office accept that their decision breaches Article 8

ECHR, but fails to act in a manner in accordance with the law.

Paragraph 3 then goes onto state that I share responsibility for our children’s care equally with an excempt person.  This is untrue. I am the primary carer

for our children.  I make all decisions relating to our children – from medical, to schooling.  I am the person who bathes our children daily, I feed our

child daily.

Page 3, Paragraph 4.  Carpenter (Case C60/09) established that considering my husband is the supplier of services to the EU Article 49 EC precludes the UK

from refusing to grant myself a right to reside.  Paragraph 3 states that it would appear that my husband is not currently employed.  This is an assumption

made by the Home Office.  My husband continues to offer services across the EU.  Infact his primary Domain for such services “PersonalHost.co.uk” offering

free web hosting in exchange for advertisment revenue (which is provided by Google Inc, based in the Republic of Ireland).  My Husband is also an active

reseller for Hostinger International, an hosting firm based in Cyprus. Hostinger International Ltd,’s address being: 61 Lordou Vironos Street, Lumiel

Building, 6023 Larnaca, Cyprus.  Cyprus is an EEA Member State.  Therefore Articles 21(1) TFEU and Article 49 TFEU applies.

Paragraph 5 refers to my husbands mobility problems.  My husband submitted substantial evidence to confirm his mobility issues.  MY husband did infact submit

his Blue Badge, along with confirmation of the badge.  The criteria for the blue badge being “Virtually Unable to Walk”.  Article 26 TFEU (Integration of

persons with disabilities) applies here, as it is clear that the UK are failing to “recognise OR respect the right of persons with disabilities to benefit

from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.”

Page 3, Paragraph 6 states that they requested further information as to why my husband cannot care for our children.  As explained to the Home Office, dated

03, may 2013, Article 24(3) TFEU states that our children have a right to direct meaningful contact with both parents.  The same is true when it comes to

another set of wider-reaching legislation – the UNCRC.

Paragraph 10/11 refers to “my” pursuit of the COA for employment.  My pursuit of such a COA was so as I could aquire a National Insurance number so as to

form my own business.  I am in the process of setting up (with the aid of my husband) two businesses.  One focused on portrait photography, and the other

focused on online sales of my photography work…  Neither of these businesses would remove my ability to care for my children.  Infact it shows the opposite

where it will show that I am willing, as I have always been, to be financially responsible for my family.  When it came to the time at which I am unable to

care for my children due to work, there are numerous educational daycare environments where I would be able to place my child.  I am aware, however, that

this does not provide the educational system a claim of “responsibility” or “carership” as refered to in the ruling of Zambrano.  I am also aware that the

ruling of zambrano did not state SOLE CARERSHIP.  If such a ruling were made,  then the ruling would also make it legal for the Home Office to remove every

parent of a British child on the basis that the UK has a Social Services care department.  However, the ruling, as ALL OTHER EU / UK law needs reading in

accordance with Article 8 – ECHR.

Paragraph 12 and 13 then refer to assessing my spouse’s mobility issues.  This assessment was clearly done seperately to the assessment of carership for our

children.  The fact my husband has such needs the assessment should of also considered his ability to care for children.  I submit a number of documents from

local authorities, which provide information on the needs of a child.

Page 4 Paragraph 2 states that the Home Office requires evidence from the NHS / Local Authority / Private care.  I submitted numerous fit notes from my

husbands GP.  these notes made it clear that my husband suffers from a back disorder.  One of the notes (as referenced by the Home Office) states that my

husband needs to avoid work that puts pressure on his back.  Raising a child is a very strenuous process.  It involves physical, emotional and physocological

strength.  The physical factor is the largest factor, and would clearly put pressure on my husbands back – which goes against his doctors advice.

As the spouse of Mr Pearsall, I provide him with the care as his wife.  This means that our family life must be repected.  As his wife I prepare his meals,

take care of our home, and our children.  This is not something that can be provided by any other organisation in the UK, as this is a family and private

life arrangement that would clearly be broken should I be removed.

The Home Office have also considered my application under Regulation 9 of the Immigration (EEA) Regulations 2006.  My application was not based solely on the

fact that my husband had worked in Finland, but also on the basis that my husband is the provider of services to the EU.  My husband, during the course of

his personal development created a number of software applications.  He provided these applications for distribution as “FreeWare”.  One such application

being “TopBrowser” – A multilingual web browser, which enabled a tabbed web browser interface (Much like Internet Explorer today).  My husband developed this

under the brandname of “Web-Software Inc,” located at http://WSICorp.co.uk/ and http://TW-Chat.co.uk/.  These applications were installed on many machines

across Europe, including in Schools and Colleges.

This fact was brought to the attention of the Home Office in the course of Emails between my husband and Rob Whiteman.  The EREC (European Team) email box

was also sent a copy of all of these messages.  This clearly shows that the Home Office took absolutely no notice of the case law of Carpenter C-60/00.

Despite the Home Office’s statement in Para 11 on page 4.  Case C-127/08 (Metock) concluded the following:

1.      Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to

move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC,

72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC precludes legislation of a Member State which requires a national of a

non-member country who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully

resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive.

2.      Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen

residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that

directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.

Whilst I understand that My husband is infact British, residing in Britain.  He also holds the nationality of an EU citizen, and has confirmed that

nationality by excersising his rights bestowed via Directive 2004/38/EC.  Unlike in the case of McCarthy where the EU National HAD NOT excersised the right

to free movement.

On page 5, the Home Office goes onto state that any application for my Human Rights to be considered, and therefore the Human Rights of my children

([daughter] and [son]l) and my spouse (Mr Wayne Brian Pearsall) must be submitted via form FLR(m) or FLR(o).  I submit that we did attempt to regulise my

stay in an application FLR(m) first of all submitted in May 2010.  This application was filed having been the unmarried partner of Mr Wayne Pearsall and the

mother of [daughter]l.  I further submit that on the refusal notice sent by the Home Office they accepted that myself and my (now) husband have a meaningful

relationship, and even went onto accept that for our Human Rights not to be breached my Husband and Daughter could leave the EEA and return to Indonesia.

However, such a burden is not strictly possible.

Indonesia has a very strict immigration process, of which I am sure the Home Office is aware.  With the longest possible visa being a 12 month visa that must

be renewed OUT OF COUNTRY.  This would result in my husband having to spend substantial amounts of time away from the family unit.  In addition to this, it

would also clearly breach my children’s and husbands fundamental right to be able to live in their home country, or in general the EEA as a whole – therefore

Invoking Zambrano (as outlined on the Immigration Directorate Inructions guidance in reference to Article 8 and Zambrano).

Paragraph 2 of page 5 then goes onto talk about the Section 55 of the Borders Act.  It states that  “but it does not mean that the children’s interests will

necessarily outweigh these.”.  As was outlined in my Human Rights submission to the Home Office, in the Supreme Court decision of ZH (Tanzania) (FC) v

Secretary of State for the Home Department [2011] UKSC 4 Lady Hale at paragraph 17 sited the European Court of Human Rights (ECHR) case of Uner v The

Netherlands (2007) 45 EHRR 14 in which the European Court emphasised two criteria which amongst others must be considered in conducting the proportionality

exercise: “[ix] the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to

encounter in the country to which the applicant is to be expelled; and [x] the solidity of social, cultural and family ties with the host country and with the country of destination”.

In the ECHR case of Neulinger v Switzerland (2010) 28 BHRC 706 the Court noted, at para 135, that “there is currently a broad consensus — including in

international law — in support of the idea that in all decisions concerning children, their best interests must be paramount”. Lady Hale states at paragraph 29 that the term ‘best interest of the child’ “involves asking whether it is reasonable to expect the child to live in another

country. Relevant to this will be the level of the child’s integration in this country and the length of absence from the other country; where and with whom

the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or

other family members which will be severed if the child has to move away.”

Lady Hale went on to state at paragraph 26 that the important thing is to consider the “best interest [of the child] first“ and that no other consideration

should be treated“as inherently more significant than the best interests of the children”.

At paragraph 31 of ZH (Tanzania) (FC) Lady Hale stated that “it is not enough to say that a young child may readily adapt to life in another country.” She

went on to say that the child cannot be expected to easily adapt in the case of children who have lived here all their lives and are being expected to move

to a country which they do not know.  In my Human Rights submission, it specifically requested that the Secretary of State not to make any decision which

will be adverse to the safety and *welfare* of the childred mentioned in this application.

As I am sure the court is aware, Welfare is a broad reaching term, which includes not only physical welfare, but also physcological, emotional and other

developmental aspects of a child’s welfare.  When understanding the importance an attachment to a mother / father can play in the development of a child, it

is clear that the idea of seperating a child from their parent clearly does not bode well with protecting the rights of a child, nore their welfare.

This fact is clearly outlined in the Home Offices guidance issued in the IDI’s at chapter 399a – in their criminality guidance.

At point 8, it is clearly outlined:

8. The Supreme Court established in ZH Tanzania that particular weight must be given to British citizenship if the consequence of an immigration decision is

that a British citizen child will have to leave the UK. This is because in so doing that child may lose out on the inherent advantages of being a British

citizen growing up in the UK.

This therefore concludes that the Home Office are aware that to remove myself from the UK it would require my children and husband to leave the UK to

continue our family life.  The Home Office have already accepted this fact.  The Home Office have made no arguments against the fact that I have a subsisting

relationship with either my husband or our children.

The list of the evidence that the Home Office used to consider my application makes no reference to evidence of my sons nationality being British.

In relation to my Regulation 9 application, I draw attention to Para 8, 9 and 10 of Morocco [2010] UKUT 420 (IAC), in addition to Case C-60/09 (Carpenter).

The Home Office clearly states in its refusal notice that to care for our children on his own, would affect my husbands  ability to work.  This would clearly

violate TFEU which gives my husband the right to work without hinderance within any EU state, including his state of nationality.  Although, contrary to what

the Home Office state, my husband is infact still a worker as per EU legislation.  Although my husbands income is quite low at the moment, he is commited to

increase his income.  My husbands employment is a cross border / “Frontier Worker” with a number of European organisations.  As explained in one of the many

email’s to the Home Office (sent to both Rob Whiteman and  the European Casework teams).  I attach a number of documents to clearly demonstrate the fact that

my husband is infact working, and has been working across the EU since 2004.  This clearly asserts that he is STILL excersising his treaty rights under EU

law, even though he is physically present in the UK.  Also, attached is a statement of income from Google Adsense, which is a company registered in the

Republic of Ireland, and therefore clearly shows that my husbands work is genuine and effective).

It is demonstrated that the Home Office’s expectation for myself (and many others in a simular situation) to submit a serparate costly application via the

Immigration Rules to solidify an already exisiting right is unlawful and unjust.  In ANY ACTION taken by an organisation Human Rights must come into the desicion making process.

Yours Truely,
Mrs [wife]
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Also below is a list of some of the documents that were sent off to the court…

* About Hostinger International LTD * About Stratford Childrens Centre (ParentingProject.org.uk) * Information RE: Provision of services across the EU. * Initial Article 8 FLR Application (2010) * Prescription information for myself * Hospital Letters about myself * ‘Fit Notes’ – particularly dated 15/3/13 which states “needs to avoid job/work that causes back pain”

Please take note of the caselaw: ““““ Case C-34/09 (Zambrano) Case C-60/00 (Carpenter) Case 127/08 (Metock) Case C-434/09 (McCarthy) – Point 1 (myself has excersised his rights) & Point 2 (Removal of His Wife, and Primary carer would impede his rights) Case c-291/05 (Eind) Case C-109/01 (Hacene Akrich) – Judgement 4 Case C-106/09 Marleasing [1990] ECR 1-4135 Many other cases references in emails attached.

Article 8 – Rights Childrens Act 1989 – http://www.legislation.gov.uk/ukpga/1989/41/contents (and  Childrens Act 2004) TFEU Article 24 – The rights of the child United Nations Convention on Rights of the Child

Emails between ME and UKBA (check previous posts for my whinning emails) – Particularly: * Human Rights Submission Letter * Letter from Rob Whiteman – RE Human Rights (1st May 2013) – He states human rights will not be taken into account… *Note my husbands email to rob whiteman on 1st may 2013 – include URL’s to my husbands services…

Freedom of Information Requests “““““““““““““““` Importance of Play for children under 8 – DE787389 attachment.doc

Mental Health of Children from seperated Parents (Also see the additional information): http://www.ons.gov.uk/ons/about-ons/what-we-do/FOI/foi-requests/people-and-places/mental-health-of-children-from-separated-parents/index.html

Local Authorities (again, check out WDTK):

* Framework for the Assessment of Children in Need * Framework for the assessment of children in need and their families – pack Available here: http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4008144

The Home Office: ““““““““ *** 27354 – Annex A: Guidance on Zambrano and Article 8 “““““““““““““““““““““““““““` – Zambrano and Dependancy *Shows the Home Office do not give the applicant a chance to supply sufficient evidence.* – Derivative Right of ResidenceCertificate of Application = Information regarding a Certificate of Application – RE other laws which the Home Office refused to respond to (Carpenter. C109, Singh, ETC)

Zambrano and Regulation 9 Refusal Notices

So this has a copy of the refusal notices that were sent to my wife…

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)

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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.

(SCRIBBLED M)

Signed on behalf of the Secretary of State Date 12 July 2013

[ECD.3126]

——————————————————————–

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…

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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…

More on Section 55 of the Borders Act…

Section 55 of the Borders Act…

26-06-2013
So I made three requests relating to the welfare of children ETC…
Request 27089: https://www.whatdotheyknow.com/request/section_55_of_the_immigration_ac
Request 27044: https://www.whatdotheyknow.com/request/ukba_interpretation_of_un_rights
Request 27272: https://www.whatdotheyknow.com/request/ukba_splitting_families
The requests yeilded the following response: https://www.whatdotheyknow.com/request/section_55_of_the_immigration_ac#incoming-396605
Of which the document: EVERY CHILD MATTERS – CHANGE FOR CHILDREN Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children Issued under section 55 of the Borders, Citizenship and Immigration Act 2009 (November 2009) http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/legislation/bci-act1/change-for-children.pdf?view=Binary
Was provided to myself….  It is quite lengthy reading… but outlines a number of points…
I note the response didn’t meet the Home Office requirements.  Further information was clearly available: http://webarchive.nationalarchives.gov.uk/20130401151715/https://www.education.gov.uk/publications/eOrderingDownload/Framework%20for%20the%20assessment%20of%20children%20in%20need%20and%20their%20families.pdf
I made a number of requests to local authorities to outline the “need of a child” etc. https://www.whatdotheyknow.com/request/a_childs_best_interests_care_arr_3 https://www.whatdotheyknow.com/request/a_childs_best_interests_care_arr_2 https://www.whatdotheyknow.com/request/a_childs_best_interests_care_arr to link a few (more are available on my WDTK profile).
All of which pretty much state the same: “We cannot remove a child from their parent, unless it prevents harm to the child”…
So… appears clear… UKBA cannot expect a parent to leave a child…  as obviously such an action can have serious concequences on a childs mental health:
NOTE ALSO… Article 8 and Zambrano Immigration Directorate Instructions: See annex A of my FOI request responsehttps://www.whatdotheyknow.com/request/159548/response/392395/attach/2/FOI%2027354.pdf(a) Cases where the primary carer is being removed or deported to a country outside the EEA, but a Zambrano right is refused on the basis that the British citizen will be able to continue to live in the EEA with another parentIn some circumstances the case worker will refuse to recognise that the adult migrant has a right to residence here on the basis of Zambrano because the child or disabled adult could remain in the UK with another parent or carer and would not therefore be compelled to leave the EEA. Where a refusal is made on this basis, and the case worker is then considering the Article 8 rights of the primary carer, they cannot conclude that there will be no interference with family life because the family can live together as a family unit in a country outside the EEA. To do so would directly conflict with the basis upon which recognition of the Zambrano right had been refused.

Waiving the fee on human rights applications

Waiving the fee on human rights applications

26-06-2013

As you stated, it is possible to be exempted from having to pay a fee for a human rights based application.

This can be done using Appendix 1 to Form FLR(O), available here: http://www.ind.homeoffice.gov.uk/sitecontent/applicationforms/flr/flro1
This information is good news after almost six months of attempts to retrieve this information from the Home Office: HO Ref: 27758 https://www.whatdotheyknow.com/request/refused_application_prior_to_jul HO Ref: 27105 https://www.whatdotheyknow.com/request/fee_remissions_for_applications
I’ve also decided to get in touch with the BBC again, as it appears they are in the mood to discuss the issue happening at present… ———————–Hi, I was directed to your post: http://www.bbc.co.uk/news/uk-23029195

I was already well aware of this route, and had infact began the process to accomplish this to enable my wife to remain with myself and our two extremely young children.My wife has been in the country since 2008, Although we understand she did need a visa, we were left with the decision “leave or stay” when we just couldnt afford to apply for leave to remain.

We have two young children, in 2010 we applied for a human rights application which was refused, stating that there was no reason that I and our daughter couldnt go to indonesia to live with my wife (and thus keep our family together)…

This appeared clearly contrary to what the law says etc, and the right of our child, a british citizen to remain in the country…

So a few years of hassle, constant reporting to solihull etc and it had got “too much”.  The staff were rude, and uttlerly disgraceful with the manner in which they spoke to my wife.

We had already wasted money contacting solicitors, sending in an application etc, and nothing… but we didnt have a choice…

Then one night I was browsing the internet and found “immigrationboards.com” and posted a quick write up on there with our story… – not expecting to receive any help…

However, the people there were fantastic…  they were pretty much at one point, all in our shoes in some manner… with a struggle against the UKBA…

We knew we needed to sort my wifes leave to remain…

We found out the three possible options… 1) Singh [which you know] 2) Zambrano… Case C-34/09 and then 3) Human Rights (Which we had already tried and failed)

We submitted our zambrano application… and then on Feb 7th my wife reported again…  We had come to the conclusion that a trip to Ireland was the best option… No language barrier, no hassles… (The republic is another EEA state and works just as well as France)

So as UKBA were holding my wifes passport, she requested it back.

Richard in the centre was outright rude, and condecending, with the words “You will never get into Ireland. They will refuse you entry. Your only option is to go home”

As your aware, Directive 2004/38/EC (The singh route baseline now)… states that an EEA member state cannot refuse entry to a family member of an EEA national. and thus, Richard was clearly talking out of his…

After months of trying, we finally secured the return of my wifes (now expired) passport.

However, the third option was still an open one… Why uproute my family to secure our family life… Article 8 enshrines the right to repect for our home also… (clearly disrespecting this, if i need to go to ireland to ensure we can live together)…

So I had already asked, considering one solicitor had mentioned he had heard (through the grape vine) that Article 8 could allow free applications (our biggest problem being, HOW could we afford to pay an application fee… On Jan 30th, I submitted the following FOI request to the Home Office / UKBA: https://www.whatdotheyknow.com/request/refused_application_prior_to_jul —– what fee remissions are possible for an application. my solicitor informed me that there are possible fee waivers/reduction in exceptional cases – esp. in cases involving article 8 of the human rights.

how would one proceed with an application FLR(M) if such a fee was not paid. Please can you send a copy of all guidance given to UKBA officials which deals with fee remissions ETC. ——

After six months of chasing, and even a second attempt: https://www.whatdotheyknow.com/request/fee_remissions_for_applications

I was still getting no closer…

Infact, another person had submitted the same request (Just Legal Group): https://www.whatdotheyknow.com/request/application_fees_2

which yeilded no real answer…

So, after attempts at making the ICO get the information requested… I filed my Pre Action Protocol letter threatening Judicial Review…

Yesterday, I received a partial set of good news from Ollie Carlise (Rob Whiteman’s personal secetary)… He stated: — Waiving the fee on human rights applications

As you stated, it is possible to be exempted from having to pay a fee for a human rights based application. This can be done using Appendix 1 to Form FLR(O), available here: http://www.ind.homeoffice.gov.uk/sitecontent/applicationforms/flr/flro1

So, this was good news…  The case was true… no fee payable… but only in certain circumstances…: “You will only be considered to be destitute if: a) You do not have adequate accommodation or any means of obtaining it (whether or not your other essential living needs are met); or b) You have adequate accommodation or the means of obtaining it, but cannot meet your other essential living needs.”

Destitution… is there a real definition of it?…

We have two young children living with us… one is less than a yr old, and the other almost four – Both British.  Both our children.

Zambrano (option 2) states that an EU state cannot remove a parent for whom an EU citizen is dependant upon, and the state must give that parent a right to work and live there and confirm it with a residence permit…

Therefore my wife has a right to live in the country… UKBA / The Home Office still appear to refuse this right…

A child is emotionally, financially, and physically dependant on both of their parents.

Article 24 of the TFEU states that a child has a right to meaningful personal contact with both parents… UNCRC states pretty much the same… plus more…

ukba goes against both…

The home office wrote to me stating that human rights will not be taken into account in the zambrano application… however, this itself goes against the Human Rights Act… as in any action taken, the act must be taken into account… (I can provide the letter to yourselves) – it just goes to show how above the law Mrs May and the Home Office believe they are.

Our story is very detailed and complex, and if you would like any further info we are more than happy to supply it…

We know numerous people in simular situations to ourselves, with british children who are expected to leave the country…  all of whom want ukba brought to account…

They breach numerous acts of law, and brush it aside.

They allow their staff to undermine people, and treat them like dirt, and nothing gets done about it.  Something must change.

Residency in Indonesia for married couples..

Residency in Indonesia for married couples..

24-04-2013
Information regarding residency in Indonesia by way of a visa for mixed marriages…
http://www.indonesianembassy.org.uk/consular/consular_mixed_married.html
to quote: ———————RESIDENCY AFTER THE MARRIAGE

IF YOU WISH TO STAY AND LIVE IN INDONESIA WITH YOUR INDONESIAN HUSBAND/WIFE AFTER THE MARRIAGE

If you are married to an Indonesian national, and wish to stay in Indonesia together with your Indonesian husband/wife, you are allowed to live in Indonesia with the sponsorship of your Indonesian husband/wife on a Limited Stay Permit/Temporary Resident Visa approved by the Immigration Office in Indonesia. This temporary resident visa is valid for a period of 12 (twelve) months with the possibility of extension (subject to approval from the Immigration Office in Indonesia).

The length of stay in Indonesia on a Limited Stay Permit Temporary Resident Visa is decided by the Immigration Office in Indonesia based on the sponsor’s request.

In this regard, may we suggest that both you and your husband/wife contact the Immigration Office in Indonesia at the following address without delay since it can take a considerable length of time to process such a visa and there is a lot of documentation to provide and process:

Direktorat Lalu Lintas Keimigrasian Direktorat Jenderal Imigrasi Departemen Kehakiman Republik Indonesia Jalan H. R Rasuna Said Kav.8-9 Kuningan Jakarta 12940 Tel. (00-62-21)5225034, 5224658 Fax. (00-62-21)5225033 ———————
This information only goes to increase our Human rights claim to remain in the United Kingdom.  For British people to remain indefinately in Indonesia they require constantly renewed visas.  Indonesia does not provide any sort of “Indefinate Leave to Remain”
http://www.expat-blog.com/en/guide/asia/indonesia/6083-indonesia-visa-info.html
provides a little more information.
However, as you will see, the only way to remain in Indonesia without being Indonesian would be a very expensive process, which makes it near impossible for a foriegn, non-Indonesian person to remain for a lengthy period of time – Including non-Indonesian children of an Indonesian citizen.
To remain for a long period, a British citizen would have to renounce their British (and EU) citizenship and become Indonesian – Which itself would result in the deprevation of the rights of an EU citizen…
http://en.wikipedia.org/wiki/Indonesian_nationality_law ——————– Obtaining Indonesian citizenship A foreign citizen can apply to become an Indonesian citizen with the following requirements: = being the age of 18 years or older, or being married = when applying, having resided in Indonesian for a minimum of 5 consecutive years or 10 non consecutive years = physically and mentally healthy = can speak the Indonesian language and acknowledge Pancasila and Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 = never convicted of a crime for which the punishment is imprisonment for one year or more = if having Indonesian citizenship will not give the person dual citizenship = employed or have fixed income = pay the citizenship fee Any application for citizenship is granted by the President of Indonesia ——————
Unfortunately, I myself would not meet the criteria for obvious reasons…
But in gaining Indonesian Citizenship, I would need to renounce my British and EU citizenship… This would clearly prevent me enjoying the benefits of being a citizen of the union.
Goes to increase our claim to remain in the UK…

Call with Eddy Montgomery…

Call with Eddy Montgomery…

22-04-2013
Couple of things from today… The call (which was absolutely pointless…) and Meliana’s passport has been returned!
Eddy Montgomery called me, his no for his sheffield office is 0114 207 1434 < took about six listenings of voice mail to get to it… his no is engaged constantly though…
Just actually got through to his office this time…
right, after a short 20 minute conversation… I realise that this man is pretty useless… – Not worth bothering with…
HOWEVER: I do know that Ollie chasing him up on Friday ensured that my wifes passport is now in the post (so thats sorted)…
hes not “sure of the process for finger printing”… (finger prints require IS81 to be issued first. (regardless of if the person is already in the country… failing to issue IS81 renders the action unlawful!) Suprisingly, the document I gained this information from has been removed from UKBA website, but i have a copy on my PC still (isnt it nice being able to save PDF files…)) it was on this page (cache’d by bing)http://cc.bingj.com/cache.aspx?q=form+is81+border+force+operations+manual&d=5021496346674790&mkt=en-GB&setlang=en-GB&w=9U17UIvidrbrgzVoIo9FS39LSPJwCAMM

Quote:
is initiated by issue of form IS 81. 3. What are the procedures when a passenger is informed by a Border Force Officer that they are required to submit to a further examination? A Border Force Officer should advise the passenger that he is required to submit to further examination by serving the passenger with form IS81. The form also states to a passenger with continuing leave that this leave has been suspended and the reasons for examination. Once the IS81 form has been served to the passenger the Border Force Officer may resume his examination at any time without further notice being issued. If the examination is not completed at a subsequent interview the Border Force Officer should advise the passenger verbally that the requirement still stands. A Border Force Officer should serve a passenger with form IS81 under the following circumstances: 1. When the initial examination is interrupted 2. When it is necessary to refer the passenger to the port medical inspector 3. When the examination is commenced during passage (on board a ship or on a channel tunnel train journey) and is to be resumed ashore/on arrival in the UK 4. when detention or temporary admission is necessary before a decision to admit or refuse is reached 5. when a passenger requires fingerprinting 6. when a passenger’s travel document requires examination by a Forgery Officer 7. when an IO needs to make a back office check. Failure to issue an IS81 renders the activities listed above unlawful. Every IS81 issued should be recorded by ports. This information must be captured in order to accurately reflect the level of work undertaken at ports.

(NOTE: UKBA staff who do house calls are “port staff” and their port is the centre they are from [in our case West Mids]).
I’ve told the guy in no uncertain terms I want to know the name of the “Arresting officer” as my wife was not informed that she was “detained” or that she was “under arrest” when they called. – and this goes to reitterate that my wife was unlawfully “examined”. I also reitterated that when the guy barged into my home, he broke the law as no warrant had been issued. – (at this point he said he needed to consult with Rob again … )
He is the head of enforcement for northern england and wales… yet it looks like he is useless in his job?
Whether this will yeild any results on further info for the IS81 document and its requirements ETC I don’t know.  I did post this request a while ago, once I realised the requirement of them completing the document (which they did not do). https://www.whatdotheyknow.com/request/form_is81#incoming-380304
——-
Come 21:00 (9PM) we receive a knock on the door.  It’s a guy from UKBA.  Turns out that they have driven my wife’s passport all the way down (in person) from the liverpool office!
They could of posted it using Royal Mail track and Trace.  But nope, a personal delivery.
We’re off to the Indonesian Embassy in the morning to sort out Meliana’s new passport.  We will then also apply for the Irish Visa – to take the Surinder Singh route back into the UK (unless we decide to remain in Ireland – In five years time If my wife becomes Irish, it could well give some benefits – IE: her parents can visit as a ‘dependant family member of an EEA national’ [myself to Ireland, or Meliana to the UK]).

Response to challenging the ISE 343

Response to challenging the ISE 343

19-04-2013
My wifes reporting restrictions were removed until July.  My wife’s application will be expediated and Eddy Montgomery to call me on Monday.

After my chat on the phone with Ollie, I did feel the need to highlight possible consequences of illegal detentions of family members of EU Citizens (regardless of whether my Directive 2004/38/EC claim is valid, my wife is still afforded the right to reside and work by having dependant British children.)  I therefore felt it wise to note the following Case law:

—————————

Subject: Re: FAO Rob Whiteman/Nadhim Zahawi – ISE 343 – Notice of Detaining my wife??? – REALLY?
From: Me @ Mine.com
To: [email protected]; [email protected]; Cc: [email protected]; [email protected]; [email protected];
Date: Friday, 19 April 2013, 15:32

——-

My Name My Address

Date: As Emailed

FAO: Rob Whiteman / Nadhim Zahawi (MP) CC: NWEuro9

* MP Ref: x * Home Office Ref: (Its a long reference) – x

Dear Mr Whiteman / Nadhim Zahawi,

After speaking with Ollie on Rob’s team today, (which I have to point out I have no faults with.  This gent was very polite, whilst on recollection I perhaps was a little rude, but with the obvious stress this whole case is putting us under…)

I do however, further to my previous email, feel the need to highlight the following relevant case law to UKBA / The Home Office: Raducan & Anor -v- MJELR & Ors [2011] IEHC 224 http://courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/4f9d0fcb1a442217802578b8005ae84f

Whilst this directly relates to Directive 2004/38/EC I am aware that the whole case will also be reflected in any decision to detain my wife in our case.

I thank Ollie for taking the time for myself to go over my issues again, the half-hour telephone call was helpful to know that whilst Ollie isn’t dealing with the case himself he is aware of it, and therefore SOMETHING must be happening with it…

Once again, I await your responses…

Yours

Mr W B P
—————————

After this I prepared myself for a wait.  But I was later shocked to receive the following email to my inbox:

—————————

——-

From: Whiteman Rob (Submissions) <[email protected]> To: Me @ Mine .com; Whiteman Rob (Submissions) <[email protected]>; “[email protected]” <[email protected]> Cc: UKBA Customer Complaints <[email protected]>; EREC <[email protected]>; Liverpool Euro Passport Returns <[email protected]> Sent: Friday, 19 April 2013, 17:32 Subject: RE: FAO Rob Whiteman/Nadhim Zahawi – ISE 343 – Notice of Detaining my wife??? – REALLY? ——-

Dear Mr P. Thank you for your emails to Rob Whiteman and others. When we spoke earlier I said that I would try to respond to you today. I have obtained some information from the team in the West Midlands that issued the ISE343 document – I thought that this was likely to be the most pressing issue for you so wanted to get a response to you in writing before the weekend ahead of a more comprehensive reply on the other issues you’ve raised next week.   The ISE343 is an automatically generated document that is sent to individuals who do not report as required and have not alerted the Home Office in advance that they can’t attend. Your wife was clearly aware of the requirement to report as she had been doing so compliantly for many months and had called ahead of the previous reporting event (in March) to advise that she was too ill to attend. Your wife’s IS151a and IS96 forms make it clear that she is technically an overstayer and liable to arrest and detention at any time if she fails to comply with the terms of her temporary release – the ISE343 simply reminds her of that and the team was correct to issue it in the circumstances. As I’m sure you can imagine the vast majority of people who report don’t feel that they should have to, and without making any comment on the relative merits of your wife’s application or status (as I am not privy to the details or familiar with caselaw) it is important that she complies with her reporting restrictions while it is required of her. Whatever you think of how her applications have been handled being unco-operative with what is an established (and legal) process won’t improve the situation and I would advise your wife to recommence reporting.

I have only become familiar with this case this afternoon and we aren’t yet in a position to respond in detail to all the other points you have made in your communications on this – I hope that we will be able to do so next week. As I said on the phone sending us additional emails each day actually serves to slow our response down as we have to revisit our proposed response to make sure it covers all the new issues raised. Therefore I would politely ask you to give us the opportunity to consider the points you’ve raised and respond to you accordingly before sending us further complaints.

Finally I have arranged for three things to happen next week:

1.    Your wife’s outstanding application will be expedited and considered by a caseworker early next week. Depending on what information she has already provided and what is missing that caseworker may contact you to request some additional evidence. Please do what you can to co-operate with this process as I think that dealing with this application may be a positive step towards the resolving the situation. 2.    Eddy Montgomery, who is the senior civil servant with overall responsibility for the team that send you the ISE343 (and indeed for all enforcement operations in the North of England and the Midlands) will telephone you on Monday to discuss further. He is much more senior and much more knowledgeable than me and will be better placed to explain. If you let us know a good number to reach you on I’ll pass that on to Eddy. 3.    I advised the team in Solihull of your assertion that your wife would not be able to report on 24 April. We would not normally accept childcare arrangements as a reason not to report but in the circumstances we will suspend reporting until 11 July 2013. This is to allow the appropriate consideration of your wife’s outstanding application and to acknowledge her consistent and reliable reporting since 2010. We will shortly send you a new IS96 with the next reporting date as 11 July 2013.

I appreciate that this doesn’t touch on many of the issues you’ve raised but I wanted to at least respond and address the immediate issues and reassure you again that your wife’s case is being looked at quickly and by the relevant senior people.

Have a good weekend,

Ollie

Ollie Carlisle Private Secretary to the Director General of Operational Systems Management Home Office
————

 
So this is where it became a little… hmmm… I understand that Ollie was trying to give some “advice”, however his advice also highlighted key words…

————-

Subject: Re: FAO Rob Whiteman/Nadhim Zahawi – ISE 343 – Notice of Detaining my wife??? – REALLY? From: me @ mine.com To: [email protected]; [email protected]; Cc: [email protected]; [email protected]; [email protected]; Date: Friday, 19 April 2013, 23:00 Date: As Emailed

Name and Address

FAO: Rob Whiteman / Nadhim Zahawi (MP) CC: NWEuro8

 

MP Ref: x Home Office Ref: (Its a long reference) – x
Dear Mr Whiteman / Nadhim Zahawi,

 

Ollie,

 

In response to your email today, Thank you. Let me begin with: My telephone number is 07xxxx, I have an appointment with my Physiotherapist on Monday Morning until 2pm, so I wiill not be available during this.

 

You mention IS151a and the fact that my wife is “technically an overstayer”. Whilst I understand your statement that you are not aware of all case law, I am well aware of plenty of the case law. I am specifically aware of ECJ case C-459/99 MRAX v Etat Belge [2002] Particularly part 2 of the ruling:

  1. On a proper construction of Article 4 of Directive 68/360 and Article 6 of Directive 73/148, a Member State is not permitted to refuse issue of a residence permit and to issue an expulsion order against a third country national who is able to furnish proof of his identity and of his marriage to a national of a Member State on the sole ground that he has entered the territory of the Member State concerned unlawfully.

 

Whilst I understand my wifes Zambrano application is based upon a Derivative right obtained via TFEU 20, the fact remains, this case law will still have a significant bearing on my wifes leave to remain in the country. Specifically: My wifes immigration history cannot be taken into account for the process of her application for (and I reiterate) confirmation of her right to reside and work within the United Kingdom.

Since March 2011 my wife has attempted to discuss her case with the team in West Midlands. They have outright refused to do so.

Your wife’s IS151a and IS96 forms make it clear that she is technically an overstayer and liable to arrest and detention at any time if she fails to comply with the terms of her temporary release – the ISE343 simply reminds her of that and the team was correct to issue it in the circumstances.

As I said on the telephone to you today: I am aware that an IS96 reporting condition is an ALTERNATIVE to DETENTION. I am also aware that DETENTION is ONLY POSSIBLE when removal is pending. As far as I am aware, removal instruction have not been issued to my wife. If such removal instructions have indeed been issued, then we would like a copy of such instructions, and then we will file our judicial review claim on such. As I outlined on the telephone to yourself today. My wife, (as her right to reside falls from the EEA regulations para. 15(a)), is not a Person Subject to Immigration Control. – The same is also true as my wife is also the spouse of an EEA national.

As I’m sure you can imagine the vast majority of people who report don’t feel that they should have to, and without making any comment on the relative merits of your wife’s application or status (as I am not privy to the details or familiar with caselaw) it is important that she complies with her reporting restrictions while it is required of her. Whatever you think of how her applications have been handled being unco-operative with what is an established (and legal) process won’t improve the situation and I would advise your wife to recommence reporting.

Whilst I understand that you are trying to give some helpful advice I would like to reiterate once again:

1) It is not required of her for two reasons, firstly she is the spouse of an EEA National. I have worked in Finland. Regardless of the UK’s interpretation of case law, I remain fixed that my wifes protection under Directive 2004/38/EC still remains!

2) LEGAL: It isnt a legal process. Case C-34/09 does not allow a member-state to impose restrictions upon that persons right to reside. Such restrictions go onto remove the genuine enjoyment of the EU citizen’s rights. (I’ll touch on this more below).

I have only become familiar with this case this afternoon and we aren’t yet in a position to respond in detail to all the other points you have made in your communications on this – I hope that we will be able to do so next week. As I said on the phone sending us additional emails each day actually serves to slow our response down as we have to revisit our proposed response to make sure it covers all the new issues raised. Therefore I would politely ask you to give us the opportunity to consider the points you’ve raised and respond to you accordingly before sending us further complaints.

I understand that further emails may slow the whole process down. However, the fact remains that statements are made, and statements require further commenting on. I will, however, ATTEMPT to withhold further complaints. However, as the large amount of illegal actions by UKBA come to light (I am rather shocked that our solicitor did not highlight the relevant legal process for obtaining finger prints), Such things need bringing to light and querying.

Finally I have arranged for three things to happen next week:

1.Your wife’s outstanding application will be expedited and considered by a caseworker early next week. Depending on what information she has already provided and what is missing that caseworker may contact you to request some additional evidence. Please do what you can to co-operate with this process as I think that dealing with this application may be a positive step towards the resolving the situation.

As I have made clear, I am more than willing to supply whatever evidence is required. I am certain whatever evidence should be required to prove that my wife of a 9 month old baby and 3 year old British Children is the primary carer, for whom are dependant on her in many ways. (Note the ruling in C-34/09 upon whom he is dependant)

2.Eddy Montgomery, who is the senior civil servant with overall responsibility for the team that send you the ISE343 (and indeed for all enforcement operations in the North of England and the Midlands) will telephone you on Monday to discuss further. He is much more senior and much more knowledgeable than me and will be better placed to explain. If you let us know a good number to reach you on I’ll pass that on to Eddy.

I would like that. My mobile number (as mentioned above) is xxx. However, I will be unavailable until after 2pm.

 

3.I advised the team in Solihull of your assertion that your wife would not be able to report on 24 April. We would not normally accept childcare arrangements as a reason not to report but in the circumstances we will suspend reporting until 11 July 2013. This is to allow the appropriate consideration of your wife’s outstanding application and to acknowledge her consistent and reliable reporting since 2010. We will shortly send you a new IS96 with the next reporting date as 11 July 2013.

Once Again, As mentioned on the telephone: Section 55 of the Act, means that a childs care and welfare must be THE primary consideration in all matters which involve a child. Are you telling me that childcare arrangements do not fall within the UKBA obligations under Sec. 55?

As I explained previously. My wife is unable to report due to our daughter attending nursery. Infact when my wife called the centre in March she was told that she would need to attend the following month… She did infact inform them that she would be unable to attend as our daughter had an Easter Bonnet parade at nursery. In addition to this, on numerous emails, I have highlighted that my wife is the Primary Carer for our daughter. It is my wife who takes our daughter to school and collects her. It is impossible for my wife to get from Stratford, to Solihull and back to collect our daughter… This is true EVEN IF DRIVING.

Are you stating that a child’s education is not a primary consideration as to their welfare? If so, I also draw attention to UN Rights of the Child. Particularly Article’s 28 and 29.

http://crae.org.uk/rights/uncrc.html

Article 28
  • Every child has the right to free primary education.

  • Governments must encourage secondary education, making it available and accessible to every child and young person

  • Access to higher education must be based on the ability to benefit from it.

  • Governments must make sure children and young people get information about education.

  • Governments must encourage regular school attendance.

  • Governments must make sure that school discipline protects the dignity of children and young people, and is in line with their rights in this Convention – so no hitting or humiliation.

Article 29
  • Governments agree that the aim of education is to help the fullest possible growth of the child’s or young person’s personality, talents and mental and physical abilities.

  • Education must help children and young people:

    – respect human rights – respect their parents – respect their and others’ culture, language and values – have self-respect respect the environment.

Surely, UKBA / The Home Office must agree that this case is clear. A childs education should not suffer due to “reporting restrictions”. We even mentioned about my wife reporting to the local police station – This was discussed during the rather lengthy telephone call which took place with Richard. I am well aware that this is a possibility. We have no reason to be unco-operative. However, I am well aware of processes in place. I am also aware that my wife has rights within the UK. These rights include the right to WORK and RESIDE FREELY within the UK.

I appreciate that this doesn’t touch on many of the issues you’ve raised but I wanted to at least respond and address the immediate issues and reassure you again that your wife’s case is being looked at quickly and by the relevant senior people.

Whilst I understand that you have done your best here, for which I thank you. The fact remains, the law is the law. The restrictions imposed upon my wife are illegal (despite what you, or your colleagues within the UKBA state). The Immigration Act 1971 does not apply to my wife. My wifes right to reside within the UK comes from the EEA Regulations 2006. I attach a copy of said regulations in an “updated” form to this email for your reference… At no point in these regulations does it state that a reporting restriction can be imposed upon any person subject to these regulations. Obviously, if you know otherwise, then please: direct me to the relevant legislation that states so.

Your’s
Mr W B P

"Liable to Detention" / "Failure to Report" / "ISE343"

ISE 343“Liable to Detention” / “Failure to Report” / “ISE343”

19-04-2013
Got a nice letter in the post today…
Wife got a nice letter in the post today: ISE343 from Homer Road.
I called the Home Road number on 01217133229.  I spoke to a lady on the desk, in the Enforcement department.
Firstly I recorded the call (as I record ALL calls I make/receive to anybody)
The lady was pretty rude, and didn’t do any security checks…  Obviously the call recording wasn’t notified so I cannot share it with a third party… (because that would be a tort – and I am aware I could be taken to court for such – as I didn’t notify her of the call recording before doing so.  My MP is acting on my behalf, and is therefore not a third party.  The same is true for solicitors.  And here’s the thing: Call recordings [even if unnotified] CAN be used in a court of law as evidence!)
1) Basically, she said that my wife falls under Immigration Act 1971.
2) UKBA are withholding my wifes passport and WILL NOT be returning it.
3) She is going to end the call because I’m holding up other people.
I therefore first emailed Rob Whitemans office, and thought I would try calling (again).  The call this time actually got answered by a rather polite man Ollie.  I felt a little bad with the way I had spoken to him, but I was a little bit P’d off with the way I had been spoken to by the previous woman. (I did however appologies).
I outlined the facts, discussed my case – he assured me that he knew our case was being looked into – although he personally had not had involvement – he was well aware of myself and that I had emailed a few times a day for the past few weeks. He clearly outlined that it might speed things up for a response if I held off with the responses (although he understands I am within my rights to email as much as I wish).  Since my emails keep raising new concerns it means that a draft response has required numerous ammendments so this is slowing down a response.
He has said he hopes a response can come through today, but as a new email has just came through it might need looking into, so hopes a response can be sent by very early next week. (Which he again appologied for and said he understands that the weekend will be a long wait but unforetunately he cannot respond directly).
He noted that my wife is not attending on 24/4/13 for the reason that our daughter attends nursery the requirement to report affects my childs welfare (education is part of my childs welfare).  – He agrees that the circumstances mean my wife’s reporting is difficult ETC.
I then went onto say “I know that a reporting restriction is an alternative to detention.  I also know that detention is only possible when removal directions have been issued, which as far as I’m aware have not been done so…  If they have been issued can you ensure you send us written notice of this… Because if they have been issued, I will on that basis continue onto Judicial Review now…”