Do Applicants for EEA Family Permit get a Full Right of Appeal?
Evidence of Cohabitation, Joint Finances/Children Responsibility
Guidance on EEA Family Permit: EUN02 | Published on 13 November 2013 by Home Office UK Government | Details of Section 24, EUN2.24 (of 24 Sections EUN2.1-2.24)
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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