UK EEA Family Permit Refusal for Lack of Communication Evidence

Question

I'm married to an EEA national, a Romanian. We've been together for 3 years and 8 months (44 months), and have been married a year ago, on the 11th Nov 2015. My wife has visited me twice in my country, Algeria.

I applied to the UK for an EEA Family Permit on 19th Oct 2016, and provided a full file to show that we have a genuine marriage. I was aware that the supporting documents are crucial, and included photographs of my wife pictured with my parents, brothers and cousins.

I keep in touch with my wife daily, but didn't know how to attach that sort of evidence to the visa application (download and print, download FB and Skype coversations onto USB flash?). I went ahead and applied without any proof of our communication. I got a refusal and both my wife and I are devastated.

The refusal says that I have the right to appeal within 28 days, I'm requesting another appointment and re-applying.

How do I show the proof of our constant communication?

• You have stated that you have met in person on 2 occasions. The photographs in support of your application are of your wedding and other occasions where you claim to have met. In the covering letter from your sponsor, she has stated that she met you in person when she visited you in December 2014. She goes onto further state that she visited you again in October 2015 and returned back to the UK in December 2015. Given the fact you have been in a relationship for 43 months and spent the vast majority of your relationship living apart from one another, I would expect to see other means of contact between you to cover these periods. You claim to keep in contact via the internet however you have provided no evidence to support this. It is only reasonable to expect that in a genuine subsisting, supportive and affectionate relationship, which you claim has existed since March 2013, that there would be significant evidence of regular contact, in the form of chat and call records. Given the background to your relationship, lack of evidence of any correspondence between you, I am not satisfied that you have genuinely formed a relationship, that you have been in regular contact, and that your marriage is subsisting.

• 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.

Answer 1

This looks a little fishy. According to EUN02:

When a marriage / civil partnership of convenience is suspected, the burden of proof is high and rests with the ECO.

They have use the refusal formula that corresponds with inadequate evidence to support your claim of relationship, but you have submitted the marriage certificate, which should by itself be sufficient evidence unless they suspect a marriage of convenience.

I suspect, though, that given your lack of cohabitation, they would probably persist with their suspicion. In other words, they would hold that the ECO had met the high burden of proof to suspect a marriage of convenience. This would mean that it would still fall to you to show evidence rebutting their suspicion. To put it another way, they probably used the wrong formula, but it's not clear that they have come to the wrong conclusion.

The formula they should have used is:

‘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.’

In saying this, I'm giving them the benefit of the doubt that your circumstances trigger the third or fourth factors below:

Factors to consider include:

• an adverse immigration history;
• doubts about the validity of documentation;
• application follows soon after the marriage / civil partnership;
• no previous evidence of the relationship.

So your quickest route to acceptance is probably to reapply, including your Facebook and Skype records. You may also want to write to the Entry Clearance Manager, though, and ask why you were rejected when

1. You are clearly married, and
2. No suspicion was raised of a marriage of convenience.

There is a chance that an informal appeal to the ECM would be faster than a new application (and, if successful, it will certainly save you the trouble of having to compile all that evidence). You can pursue both strategies concurrently, or try them one at a time, as you prefer.