EEA Family Permit Interview, Refusal Reasons, Appeal Rights

EEA Family Permit Refusal ReasonsThis relates to EEA Family Permit Interview and issuing a Type D Visa i.e. EEA Family Permit 6 Months. The post also discusses the refusal on grounds of public policy, public security and public health and applications from Direct Descendants under 18 years of age. Here it is important to mention that in case of Refusal an EEA Family Member has a right of appeal against the refusal decision.  The applicant needs to file an appeal within 28 days after receiving the refusal letter from the British Embassy. The appeal is filed with the First Tier Tribunal.

Can ECO Invite an EEA Family Permit Applicant for an Interview?

The ECO can invite an applicant in for an interview as long as any delay or deferral can be justified. The ECO can consider inviting an applicant for an interview when there are strong grounds to doubt that:

  • the applicant is not related as claimed to EEA national.
  • the applicant is not genuinely dependent on the EEA national (except spouses and descendants under 21).
  • the EEA national may not be intending to going to the UK.
  • the EEA national may not be a qualified person.

In addition to the above, if there are strong grounds to suspect:

  • that the EEA national intends to ‘drop off’ the applicant and return to the country of origin.
  • a marriage of convenience.
  • the identity of the applicant.

Moreover, an applicant can be called for an interview if there are strong grounds to consider refusing on the basis of Public Policy, Public Health or Public Security.

Marriages and civil partnerships of convenience

A person who is a party to a marriage or civil partnership of convenience is excluded from the definition of ‘spouse’ or ‘civil partner’ under regulation 2 of the 2016 regulations.

If the immigration officer suspects that a marriage or civil partnership is one of convenience, then the applicant is requested to provide evidence about his/her relationship or attend an interview on this basis.

If the applicant fails to comply with a request to provide evidence or to attend a marriage interview on 2 separate occasionsregulation 22(4)(b) allows to draw ‘factual inferences’ about the applicant’s entitlement to reside as may appear appropriate in the circumstances. This means that taking the failure of the applicant to provide evidence or attend an interview, along with any other reasons to suspect that the marriage or civil partnership is one of convenience, can lead to decide that the applicant does not have a right to an EEA family permit.

If following an interview, it is decided that the marriage or civil partnership is one of convenience then the application is refused, which is required to be clearly set out in the refusal letter the reasons for concluding that the marriage or civil partnership is not genuine.

Refusal on Grounds of Public Policy

In line with regulation 21, family members of an EEA national can be refused an EEA family permit on the grounds of:

  • public policy
  • public security
  • public health

Before issuing an EEA family permit it is ascertained that there are no reasons to refuse on the grounds of public policy, security or health.

Where a refusal is considered on the grounds of public policy, public security or public health in accordance with Regulation 21. The provision for refusal of an EEA family permit on public grounds is distinct from the provision in the Immigration Rules for refusal on non-conducive, criminal conviction and medical grounds. The level of evidence required for refusals in these cases is high. A person’s previous criminal convictions alone do not justify a refusal.

Fraudulent evidence

Where there are reasonable grounds to suspect that the applicant has submitted fraudulent evidence in support of an application for an EEA family permit, then the application is also refused on public policy and public security grounds.

Deportation or Exclusion Order

Where an applicant is the subject of a deportation or exclusion order. The applicant must apply first for the order to be revoked. If successful, upon application for the family permit, the case must be referred to Euro Casework.

The Immigration (European Economic Area) Regulations 2016

EEA Family Permit 6 Months Visa Endorsement  | UK Visa Type D

An EEA family permit is valid for 6 months. The non-EEA national family member can leave and enter the UK multiple times within that time period.

Under regulation 7(3) or the 2016 regulations, extended family members must apply for a residence card if they want to stay in the UK after their EEA family permit has expired.

The applicant has been issued a Category D Vignette with one of the following endorsements:

D: ‘EEA FP: FAMILY MEMBER: [TO ACC ‘Name of EEA national’] or

D: ‘EEA FP: FAMILY MEMBER: [TO JOIN ‘Name of EEA national’]

The EEA family permit should be valid for 6 months from the date of issue and may be used for multiple entries to the UK during that period. It should carry the name of EEA national in the ‘add endorsement’ field and should indicate whether the non-EEA national will be accompanying or joining the EEA national in the UK.

The permit will indicate to the Immigration Officer that the holder is the family member of an EEA national living in the UK in accordance with the Regulations* the revocation is justified on grounds of public policy, public security or public health.

The holder is not at that time the family member of an EEA national living in the UK in accordance with the Regulations.

After entry to the UK, the holder can apply to the Home Office for a residence card. A residence card (an endorsement in the holder’s passport) enables the holder to re-enter the UK without the need for an EEA family permit for as long as they are the family member of an EEA national with a right of residence in the UK. A residence card, which is normally valid for five years, is simply a confirmation of the holder’s right of residence in the UK – it is not a compulsory requirement.

Applications from Direct Descendants under 18

In order to protect the interests of minors, ECOs are required to ensure that they have established parental responsibility for children applying for EEA family permits as direct descendants of EEA nationals, particularly where one or both parents will not be accompanying the child to the UK. In these cases, it is reasonable to ask for the written consent of the child’s parent(s) or legal guardian(s) for the child to travel before issuing the EEA family permit.

Refusal on Public Policy, Security or Health

Section 22 of the EUN02 explains that application by an EEA Family Member can’t be refused on General Grounds of Refusal as the application is made under EEA Regulations.

22. EUN2.22 Refusal on grounds of public policy, public security or public health

Please note: An applicant who applies for an EEA family permit, but who may be considered as a threat to Public Policy, Public Security or Public Health cannot be refused under the General Grounds for Refusal of the Immigration Rules. This is because the application is made against the EEA Regulations and therefore the refusal would need to be against these Regulations.

EEA nationals or non-EEA national family members may also be refused admission to the UK on grounds of Public Policy, Public Security or Public Health. More detailed information can be found in ECI Chapter 8. If ECOs are concerned that an application may fall to be refused, they must refer to the Euro Casework following the instructions in OPI 225.

Refusal on General Grounds – EEA Family Permits

Applications of a non-EEA family member under paragraph 320(7A) or 320(7B) can’t be refused, if they are applying for entry clearance under the Immigration EEA Regulations 2006. This is because such applications are not covered by the Immigration Rules.

However, if the applicant is applying under the Immigration Rules, for example as a visitor, it can be refused on general grounds.

EEA Family Permit Refusal Reasons and Suggested Wordings

Section 23 of EUN02 states various grounds for refusing an Application and also the wordings of refusal letter.

Inadequate Evidence to Support Clain as the Family Member

23. EUN2.23 Suggested refusal wordings

23.1 i. The applicant does not provide any (or adequate) evidence to support his claim to be the family member of an EEA national

‘In view of your failure to provide satisfactory evidence, I am not satisfied that you are the family member of an EEA national in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2006.

EEA National May Not Be Going to the UK

23.2 ii. The EEA national is not in, or will not be going to, the UK

‘I am not satisfied that your EEA national family member is residing in the UK, or will be accompanying you to the UK within six months of the date of the application, in accordance with Regulation 12(a) of the Immigration (European Economic Area) Regulations 2006.’

Not a Genuine Dependant of the EEA National

23.3 iii. The applicant is not genuinely dependant on the EEA national or his / her spouse

Family Members: This does not apply to spouses / civil partners or children aged under 21, except in the case of a student who has been resident in the UK for more than three months, where the children of any age must also be dependent.

‘In order to qualify as a family member you are required to be dependent on the EEA national but I am not satisfied that you are dependent as claimed. I am therefore not satisfied that you are a family member in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2006.’

Extended Family Members:’I am not satisfied that you are dependent on the EEA national or a member of his/her household. I am therefore not satisfied that you are an extended family member in accordance with Regulation 8 of the Immigration (European Economic Area) Regulations 2006.’

In cases involving extended family members – the applicant may have provided evidence of dependency or that they lived as part of the EEA national’s household in an EEA state prior to coming to the UK. However, you must also be satisfied that a refusal of the application would result in EEA national being prevented from exercising his or her free movement rights, and that in all circumstances, is it appropriate to issue a family permit:

‘I have undertaken an extensive examination of your personal circumstances in accordance with Regulation 8 of the Immigration (European Economic Area) Regulations 2006 but I am not satisfied that there are sufficient grounds for issuing you with an EEA family permit for the following reasons…’

No Evidence of Serious Health Issues

23.4 iv. The applicant claims to require the personal care of the EEA national on serious health grounds:

‘Your case has been considered under Regulation 8(3) of the Immigration (European Economic Area) Regulations 2006. This area of the Regulations refers to a relative of an EEA national or their spouse / civil partner who may be granted entry if they require the strict personal care of the EEA national or their spouse / civil partner on of serious health grounds.

In your case you have [reasons, for example, no evidence of serious health issues / the need for care by the EEA etc.]”

No Adequate Evidence of Durable Relationship

23.5 v. The applicant claims to be in a ‘durable relationship’ with the EEA national

‘You have applied for an EEA family permit as a person who is in a durable relationship with an EEA national. Your application has been considered in accordance with Regulation 8(5) of the Immigration (EEA) Regulations 2006 but you have failed to prove that you are in a durable relationship with an EEA national.

In cases where a person is seeking to be considered as an unmarried / same-sex partner of an EEA National, we apply the same criteria as that stipulated under the Immigration Rules for a person seeking leave to enter as the unmarried / same sex partner of a British or Settled person.

In your case you have [reasons, for example, no intention to live together, no evidence of 2 year durable relationship etc.]’

Family Members is Not a Qualified Person under Regulation 6

23.6 vi. The EEA national is not a qualified person because there is no evidence of Treaty rights being exercised:

‘You have failed to provide evidence that your EEA national family member is a qualified person in accordance with Regulation 6 of the Immigration (European Economic Area) Regulations 2006. I am, therefore, not satisfied that your EEA national family member is residing in the UK in accordance with the Immigration (European Economic Area) Regulations 2006.’

Please note: because of the initial right of residence, the ECO cannot refuse someone on the basis that that their EEA national family member will not be a qualified person in the UK on arrival. However, if the ECO is satisfied that the EEA national has been in the UK for longer than three months, the ECO must be satisfied that the EEA national is a qualified person.

Party to a Marriage of Convenience

23.7 vii. The applicant is a party to a marriage of convenience

‘The definition of ‘spouse’ in the Immigration (European Economic Area) Regulations 2006 does not include a party to a marriage of convenience. I am satisfied that you are party to a marriage of convenience and are therefore not the family member of an EEA national in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2006.’

Not an Extended Family Member

23.8 viii. Extended Family Members

‘You have applied for an EEA family permit as the extended family member of an EEA national. However, I am not satisfied that you are an extended family member in accordance with Regulation 8 of the Immigration (European Economic Area) Regulations 2006.

Only those family members referred to under Article 2 of the Directive 2004/38/EC have an automatic right to join or accompany an EEA family member to another member state when that EEA national is exercising a Treaty right.

Article 3 of Directive 2004/38/EC provides the basis for a member state to consider other relatives, such as ‘extended family members’ and determine the terms of entry and residence to such ‘beneficiaries’ in accordance with their own domestic legislation. (Article 3(2)).

The UK has transposed the terms of Article 3 into Regulation 8 of the Immigration (European Economic Area) Regulations 2006. As Regulation 8(4) makes clear, the UK is allowed to set terms on when it will accept extended family members and allow them to reside in the UK as family members of an EEA national. Your application has therefore been considered in accordance with (insert para) of the Immigration Rules. I am not satisfied that you qualify under this paragraph because:…’

Surinder Singh- Regulation 9 of the Immigration (EEA) Reg 2006

23.9 ix. The British citizen is not exercising a Treaty right in a Member State (Surinder Singh)

‘You have applied for admission to the UK in accordance with Regulation 9 of the Immigration (European Economic Area) Regulations 2006 as the family member of a British national who has been / was previously working or self-employed in another Member State. However, in view of your failure to provide documentary evidence that the British citizen is / was working or self-employed in another Member State prior to returning to / coming to the UK, I am not satisfied that the Regulations apply in this case.’

Surinder Singh- Applicant is Not Living with the British National

23.10 x. The applicant is the spouse / civil partner of the British national but is not/was not living with the British national in the EEA State (Surinder Singh)

‘You have applied for admission to the UK in accordance with Regulation 9 of the Immigration (European Economic Area) Regulations 2006 as the family member of a British national who has been / was previously working or self-employed in another Member State. However, you are not living with the British national in (the EEA State), nor were you living together in (the EEA State) before the British national returned to the UK. Therefore, I am not satisfied that the Regulations apply in this case.’

via EUN02 – GOV.UK

Do Applicants for EEA Family Permit get a Full Right of Appeal?

Evidence of Cohabitation, Joint Finances/Children Responsibility

24. EUN2.24 Do applicants for EEA Family Permit get a full right of appeal?

An applicant for an EEA family permit has a full right of appeal against refusal under the EEA Regulations, as it constitutes an ‘EEA decision’, which is a decision under the EEA Regulations concerning a person’s entitlement to be admitted to the UK. A person claiming to be the family member of an EEA national may not, however, appeal under the EEA Regulations where they have not produced any evidence of the EEA national family member’s nationality, or, that they are related, as claimed, to the EEA national

Previously there was no provision in the Regulations stipulating the conditions to be met in order for a person claiming to be a durable partner to bring a right of appeal against an EEA decision. This was because the Court in the case of Abdullah EWHC 1771 (15 June 2009) found that regulation 26(3) did not apply to durable partners of EEA nationals because they were neither ‘family members’ nor ‘related’ to the EEA national. This meant that durable partners could appeal against an EEA decision in all cases, without needing to provide any evidence as to their status.

From 8 November 2012 the Regulations are amended to insert regulation 26(2A). Regulation 26(2A) will provide that in order for a person claiming to be the durable partner of an EEA national to appeal against an EEA decision they must provide:

“(a) a passport; and(b) either –”

“i. an EEA family permit; orii. sufficient evidence to satisfy they are in a relationship with that EEA national.”

Sufficient evidence of a person claiming to be the durable partner of an EEA national could include (but is not limited to) one or more of the following:

  • Evidence of cohabitation. For example bank statements/utility bills in joint names at the same address.
  • Evidence of joint finances or joint business ventures. This may include tax returns or business contracts.
  • Evidence of joint responsibility for children such as a birth certificate or custody agreement demonstrating that the two parties claiming to be in a durable relationship are cohabiting and sharing responsibility for children.

In addition, any photographs provided of the couple may add weight to the evidence listed above.

ECOs should note that the applicant is not required to demonstrate the durable nature of the relationship in order for the refusal to attract an appeal right which requires a higher level of evidence to be provided. Rather the applicant is only required to provide evidence that they are in a relationship the relevant EEA national.

Like appeals against entry clearance decisions, the right of appeal would be heard whilst the appellant remains outside of the UK.

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