11 replies to this topic

[keftin]

Is it permissible for a second ECM review of a refusal prior to a hearing taking place, when it is clear that the disclosed ECM review has been applied outside the law ie non-existant law has been applied to justify refusal thus preventing/avoiding consideration under the correct EEA Regulations?
(application of unamended section of EEA Immigrations Regulations no longer in force).

Its one thing to interpret law in an arguable but wrong way - its another to apply a law that no longer exists to support a decision and review.
.
see related topic

http://www.ukresiden...-family-member/

[Victoria]

ECM reviews are often pointless. There won't be a second review.  However, once your documents reach the Presenting Officer's Unit they have the opportunity to withdraw from the case if they wish - this happened to me last week.

[keftin]

Thanks for that.

Is it acceptable to ask/prompt the Presenting Officer's Unit to consider conceding or is it a case of wait and see? If the case is conceded would it then be remitted back to the post ECO for consideration or would the Unit make a decision itself?

Having read previous cases it would appear the best a Tribunal could do is to remit the case back for re-consideration because:

a) No consideration was given under the current law, which means there has been no incorrect application of current law, and

b -  There is a discretionary element to the ultimate granting of a Family Permit to an extended family member, that to my understanding,  a Tribunal cannot make.

Edited by keftin, 22 September 2012 - 02:27 PM.

[Victoria]

You don't prompt them. They decide when they have your bundle and skeleton argument.

Do you have a lawyer?

[keftin]

No - but I feel I fairly confident of being able to put together a well-reasoned skeleton argument / witness statements and appeal bundle with regard to extended family member dependency / household membership etc. I've sat in on a couple of hearings (and will sit in a few more) so am not too concerned about how to present the appeal.

From reading many reported and unreported Tribunal decisions, the difficulty with this appeal is that the ECO/ECM has not considered the applications under the correct regulation 8(2) so it's not simply a case of arguing that the interpretation of the right regulation was flawed and that it was not in accordance with current legal opinion. In the first instance the ECO believed the EEA Regulations allowed him to use the Immigration Rules as a matter of choice and this was compounded when the ECM review utilised unamended EEA Regulations (pre 2011) to justify the decision.

As there is a discretionary element to the issuing of a Family Permit  for extended family members, previous tribunals have stated that they cannot remit an appeal for a previously denied family permit to be re-considered by the SSHD unless the first part of the process (consideration under EEA notions of depenancy and household membership) has been considered - which has not happened in this case. Regulation 8(2) was bypassed.

That is why I was wondering, that if the Presenting Officer's Unit conceded, would they then make the decision for the ECO (after having satisfing themselves as to the merits of the original application) or would it be just sent back to the ECO/ECM for them to reconsider under the correct regulations bearing in mind both the Tribunal's and Presenting Unit's comments?

Edited by keftin, 24 September 2012 - 12:01 PM.

[Victoria]

It is rare that the PO do change the decsion, and from what you have said I'd expect this to go to the hearing.  But it is possible.  I doubt they would send it back.

[keftin]

Home Office withdrew on the morning of the appeal. The applications are to be referred back to overseas post for ECO to consider them for Family Permits.

[Victoria]

Typical.

[keftin]

Overseas applicant and representative have received Tribunal notification of withdrawal but overseas post state nothing from UKBA.

Does anyone know if UKBA work to a max timescale when notifying the overseas post, when they have withdrawn from the appeal process?

The only published information I can find relates to outcomes when they have not withdrawn.

Edited by keftin, 26 November 2012 - 05:49 PM.

[Victoria]

Ask the PO Unit