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NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Use this section for any queries concerning the EU Settlement Scheme, for applicants holding pre-settled and settled status.

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe

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Sgohel
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NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by Sgohel » Thu Jan 05, 2017 5:30 pm

In continuation to the below link:

http://www.immigrationboards.com/eea-ro ... 16153.html

My parents EEA PR got refused on 09th October. Even though the application was prepared by a solicitor with huge set of documents enclosed with covering letter mentioning the below case law, it was bureaucratically rejected by the Home office.

TOMMY BUSTAMANTE DELOS REYES:
Court envisages that questions of dependency must not be reduced to a bare calculation of financial dependency but should be construed broadly to involve a holistic examination of a number of factors, including financial, physical and social conditions, so as to establish whether there is dependence that is genuine. The essential focus has to be on the nature of the relationship concerned and on whether it is one characterised by a situation of dependence based on an examination of all the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family.



FACTS OF THE CASE:
• I and my parents arrived in UK all together in August 2010 and we are all living together in the samehold since 2010 as on date. My parents had no source of income, savings or investments when we all came together in UK therefore they were naturally fully dependent on me when we arrived in UK.

• I immediately started employment in 2010 and hence acquired the right to reside and habitually residency. At the same time my parents also acquired the right to reside and habitually residency alongwith me in 2010 as they were fully dependent on me (‘dependent direct family member of a ‘worker’).

• Upon acquiring the status of ‘dependent direct family members of a ‘worker’, they became eligible to apply for social security and all applicable means tested benefits as enshrined in the EC directives.

• Therefore my parents applied for pension credit in Dec 2010 and thereafter housing benefit & council tax support in March 2011. Due to their health deterioration they further became eligible to apply for disability living allowance and attendance allowance around in 2011.

• Substantial amount of medical papers, Hospital reports and GP letter requiring son to give care and support were submitted to home office. A statement mentioning the caring tasks and responsibility signed by me was also submitted. I am the carer of my father since 2011(i.e. receiving care’s credit).

• I worked continuously for 5 years and have acquired PR in November 2015.

• I was fully financially responsible for myself and my parents from August 2010 – March 2011, i.e. before my parents became eligible for above social security benefits. However since March 2011 I am only contributing for telephone landline bills (direct debit from my account) and other monthly miscellaneous expenses such as food, grocery, entertainment etc. (using my credit card).

• The home office has refused my parents application stating that my parents have not provided sufficient evidence to show that they are financially dependent on me. They have further stated that from my credit card statements they are unable to ascertain that the food and grocery items purchased have been solely for their own use.


THE APPEAL HAS BEEN FILED AND AM WAITING FOR THE HEARING DATE, IN ORDER TO STRONGLY DEFEND MY PARENTS CASE, DO FURTHER SUBMISSION AND LEGALLY ARGUE IN ORAL HEARING, PLEASE CAN SOMEBODY HELP AND LEGALLY GUIDE ME TO JUSTIFY BELOW 11 POINTS OF ARGUMENTS AND ALSO IF POSSIBLE PROVIDE ME WITH RELEVANT LEGISLATIONS, CASE LAWS, MAXIMS, THEORY OF JURISPRUDENCE AND LEGAL LOGIC ETC TO SUPPORT MY EACH AND EVERY ARGUMENTS.


1. My parents are financially dependent on me from the day we all came in UK in Aug 2010.

2. There was no means tested benefits available to them from Aug 2010 till Dec 2010. It should be noted here that this social security benefits were not in place initially when all 3 family members arrived in UK, the parents acquired these benefits only after 5 months after establishing financial dependency on Son. Prior to 5 months from the date of arrival in UK son was completely responsible for his parents.

3. The right to access means tested benefits was acquired only after establishing dependency on direct family member (son) who is a worker.

4. When a person establishes a particular status and by virtue of that status he/she acquires certain amount of rights as governed by the legislation then how can exercising one single right amongst them deprive his/her primary status on the basis of which those rights have been acquired. This is legally absurd.

5. Hence how can a family member loss his/her status of “dependency” upon exercising any of the social security rights especially when such social security rights is fundamentally derived only after establishing “dependency”. When there are series of rights available which can be exercised how can accessing one right prejudice other right or rights This is completely illogical, legally incorrect and against the theory of jurisprudence and natural justice.

6. Also there is no law or any legislation which states that claiming means tested benefits renders a person not financially dependent and that person will lose his primary dependency status, if at all there is any such law it will be a contrary to EU legislations which governs social security act.

7. If Home office is considering my parents financially not dependent - that means in order to avail PR as a ‘dependent family member’ of EEA national they are indirectly compelling my parents to stop availing social security benefits and pushing them back in their original stage when they first arrived in UK, which again means that my parents have to fully rely on me and the entire family will be like in a similar kind of situation when they had arrived in UK in 2010 in extreme financial distress and turmoil.

8. This again is forcing someone not to avail his/her social security rights. Stopping or compelling someone in any manner to stop exercising his rights is illegal. Creating circumstances which leads someone to stop claiming his legitimate rights, indirect deprival of rights is unlawful, the home office is committing an offence by refusing PR thereby intending to create distress and adverse circumstances.

9. My parents not only rely on me financially but also for caring and support, I am the carer of my father in receipt of carer credit and living in the same household since beginning. My parents do not have anyone to look after them and their survival is not possible without my association with them and we are an integrated undivided family.

10. The right to access social security is also laid down in human rights act. The right to access family life and freedom of liberty is also stipulated in the Human rights act.

11. The payment of food, grocery and other miscellaneous expenses which are done from credit card are meant for all family members of household including the parents. I and my parents are members of the same household and reside altogether so how can the home office make illogical statement that they are unable to determine purchase for sole use of parents. (NO CREDIT CARD STATEMENT IN THE WORLD CAN DETAIL THE PERSON WHO IS GOING TO CONSUME THAT FOOD OR GROCERY PURCHASED.)

*****************************---------------------------------*******************************
Thanks for reading, any amount of help advice or suggestions, inputs welcomed.

Obie
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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by Obie » Thu Jan 05, 2017 5:38 pm

From the above information, it is difficult to ascertain how you parents could be conceivably be said to be dependent.

Their Housing and Council Tax paid for by the state.

The Receive Pension credit and Disability Benefit to assist them with their essential needs.

The Receive housing from the government.

How could a judge reasonably make a finding of dependency in these circumstance.

From the case law, it does not appear that one can say, giving the benefit they receive, that they need your support to meet their essential need.

In the case of Lebon, even though Miss Lebon was on the Minimex, their was clear evidence that her needs were not fully met by that support, and that her father was also supporting her.

In your case, it will be hard to advance such submission.
Smooth seas do not make skilful sailors

Sgohel
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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by Sgohel » Thu Jan 05, 2017 5:42 pm

Hi Obie,
The biggest question is when you get benefits initially as a dependent family member how does this status get lost. Does acquiring means tested benefits make one independent.

Obie
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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by Obie » Thu Jan 05, 2017 5:50 pm

If those support her giving to meet essential needs, then it will be difficult to suggest that they are dependent on you, but rather the dependency is on the state.

Furthermore your parents don't reside with you anymore, and therefore the link between you and them has diminished.

Even if the Housing benefit given to them is for your home, it disclose element of dependency on the state than on you.

It is important to note that their ability to reside in the UK, is subject to their dependency on you.
Smooth seas do not make skilful sailors

Sgohel
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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by Sgohel » Thu Jan 05, 2017 6:05 pm

Hi Obie,
Sorry to say that you not getting my first email, I am living with my parents as on date i.e. the date of arrival in UK till today. I also mentioned that for first 5 months I was completely responsbile for them and there was NO SOCIAL SECURITY BENEFITS.
When I started working i cleared right to reside and habitually residency and accordingly my parents were dependent on me so they also got the right to reside and habitually residency. As per EC law they started claiming benefits because they became eligible in 2010 as dependent on me and living with me.

Now my parents are living with me and claiming benefits, these benefits rights to my parents are flowing since 2010 and now when we applied for PR the home office is saying that there is no financial dependency.

IF THEY ARE NOT DEPENDENT ON ME THEN HOW COME THEY PASSED THE RIGHT TO RESIDE AND HABITUAL RESIDENCY IN 2010 AND LIVING WITH ME.

Obie
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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by Obie » Thu Jan 05, 2017 6:12 pm

At the time they applied for Residence Card, they were fully dependent on you.

The Social security is only interested in the residency status in their passport, they do not make an independent assessment.

At the time your parents applied, they were dependent on you, and they were entitled to the benefit, however the benefits receipts made them reliant on the state than on you.

The state was paying for their housing, and living cost, therefore they were not requiring on your support to meet their essential needs, but dependent on the state.

You need to appreciate that the status of dependency is not a static status, but one that is very dynamic.
Smooth seas do not make skilful sailors

noajthan
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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by noajthan » Thu Jan 05, 2017 6:17 pm

My understanding is evidence of dependency of up to 50% of income stream is required.
What % of parents' income derives from you and what % from state (or elsewhere)?
What % of budget is spent on essential daily needs? how much do you provide?

Another key concept in EU law (in context of free movement) is that of not presenting an unbearable burden on the state's social assistance system; so whilst some reliance may be permitted an unbearable burden is not.

The tests for access to benefits are not necessarily an endorsement of dependency in the EU migration context.
Different legislation, requirements and criteria will apply.

So just because someone is habitually resident and able to claim some benefits in UK etc it may not mean they are a bona fide dependent family member and does not mean they should claim all benefits.
For the first three months of any time spent in the UK an EEA national is considered to be resident by virtue of his nationality and does not need to be a qualified person. His non-EEA family members also have an automatic right of
residence during this period. This is referred to as an ‘initial right of residence’. However, this right shall cease if the EEA national or family member become an unreasonable burden on the social assistance system.
Ref https://www.gov.uk/government/uploads/s ... ction3.pdf
Also relevant are certain provisions of the (parent) Citizens’ Directive (Directive 2004/38/EC). Recitals 9 and 10 of this Directive state:

“(9) Union citizens should have the right of residence in the host Member State for a period, not exceeding three months without being subject to any conditions or any formalities other than the requirement to hold a valid identity card or passport, without prejudice to a more favourable treatment applicable to job-seekers as recognised by the case-law of the Court of Justice.

(10) Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions.”
Ref https://tribunalsdecisions.service.gov.uk/utiac/37852
According to a recent Court of Justice of the European Union judgment, C-160/12 Brey, ... the court said that an individual assessment is required in every case, to determine whether the person in question would be an unreasonable burden on the social assistance system.
Factors relevant to this assessment include the length of an individual’s residence in the UK, whether or not the difficulties they face are temporary, and how long they would need to claim the benefit for.
Any assessment, applicable to all EU law, must be in accordance with the principle of proportionality.
Ref http://www.airecentre.org/data/files/TF ... n_Note.pdf
... the current legislation and practice shows a lack of “joined-up thinking” between the Department for Work and Pensions and the Home Office.

More on Brey here:
https://www.freemovement.org.uk/refusal ... nationals/
All that is gold does not glitter; Not all those who wander are lost. E&OE.

Obie
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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by Obie » Thu Jan 05, 2017 6:26 pm

For the avoidance of doubt, i am not suggesting that family member of EEA nationals cannot claim benefit.

I am merely stating that in the particular circumstances of your case, the benefits claimed such as, Disability Allowance, Attendance Allowance, Council Tax benefit, Housing benefit and Carers allowance, are such that it cannot be reasonably said that your parents are dependent on you, but the state, and it is strange that this was not pointed out to you.
Smooth seas do not make skilful sailors

Sgohel
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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by Sgohel » Thu Jan 05, 2017 6:43 pm

Hi Obie and Noajthan,
In this application I already provided evidences of paying telephone bills and purchase of food, grocery, entertainment, travel from my credit card and bank statement. The home office did not consider and made a stupid remark stating that they do not know for whom the food and grocery belongs - it is for household and not for any outsider. DOES ANY CREDIT CARD STATEMENTS STATE THE NAME OF THE CONSUMER - IT JUST LIST THE PURCHASE.

Some basic evidences of my financial contribution over the 5 year period was shown still the home office did not consider, there was a case law which stated dependency can be partial too.

The other aspect is medically dependency - my parents are disabled and in constant need of care and support -enotionally ,physically etc. hospital reports, etc were all submitted - in one of the case law it was clearly decided that dependency should not be construed only to financial but numerous factors should be examined.

My parents do not have anybody to look after them and they are immobile and my association is essential for their livelihood and survival, in my absence where will they and it will inhuman to maltreat them.

As per my understanding on the legal theory of jurisprudence it states that when you acquire a certain amount of rights and excercising any one of the right does not prejudice other right.

SAY FOR EG - IF YOU ACQUIRE THE STATUS OF DEPENDENCY AND BY VIRTUE OF THAT you can exercise a right to get certain amount of money, a right to get free accommodation. and if you exercise a right of availing money, the other person cannot refuse your right to accommodation just simply bcoz you have enough money unless and untill there is any law contrary to it. Also you do not lose your original status of being dependent.

Also there is no legislation or any test which states only certain category of benefits are allowed and exceeding those will render the claimant an unreasonable burden.

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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by ecogle1976 » Thu Jan 05, 2017 8:28 pm

Hi Sgohel,
Iam on same situation, but my mother in law was issued a RC in A4 sheet and got lost, we have applied fresh application for bio metric card, which got refused by HO saying my MIL is not financially depending on me, she is getting PC but we only pay our mortgage, CT,Water bill, Gas and electric and TV license. I have made an appeal against HO on my own. It seems that HO dont like people on benefits or they take a chance to refuse. I think it's not fair that one part of government allow to take benefits and other refusing the living status based on same benefits. I strongly encourage you to fight against this.
Regards
Ecogle

noajthan
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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by noajthan » Thu Jan 05, 2017 8:34 pm

You are dealing with the Directive 2004/38/EC as transposed into UK law.
The Directive is never prescriptive, similarly, for example, it doesn't prescribe precise hours/income levels for worker qualified persons.
So its all about case law and proportionality.

The adult dependent only has a right if dependency on sponsor is present.
Apparently up to 50% as per case law and/or UK guidance.

What is % of all relevant factors in your case?
Instead of asserting its self-evident and common sense, why not come up with a breakdown of budget (xls) that a reasonable 3rd party could, on balance of probabilities, accept.

If you had continued benefits-free or with a minimal benefits lifestyle then in all likelihood parents could have acquired PR by now.

A UK right to a reasonable level of benefits is compatible with the EEA right of dependency if not an unreasonable burden on the state.
And each case is to be assessed on merits as per Brey etc.

You may have to rein in benefits if parents are to retain an option to remain in UK.
Unfortunately, due to Brexit, there is now unlikely to be time to acquire PR in normal way.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

Obie
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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by Obie » Thu Jan 05, 2017 8:37 pm

Sgohel wrote:
Also there is no legislation or any test which states only certain category of benefits are allowed and exceeding those will render the claimant an unreasonable burden.
Well i beg to defer. There are laws in place, and Jurisprudence of the CJEU that indicate the test of who a Dependent family member in the Ascending line in. There is a body of case law, Jia, Lebon, Reyes.

Even in EU law, there are distinction between benefit, there are benefits needs to enable a person to integrate into the job market, benefit needed to ensure a person is able to get the minimum sustenance.

Therefore your point of contention is not correct.
Smooth seas do not make skilful sailors

BIG Dobby
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Re: NEED HELP & LEGAL ADVICE FOR EEA PR APPEAL

Post by BIG Dobby » Wed May 02, 2018 12:12 am

Sgohel wrote:
Thu Jan 05, 2017 5:42 pm
Hi Obie,
The biggest question is when you get benefits initially as a dependent family member how does this status get lost. Does acquiring means tested benefits make one independent.
Hi Sgohel

Did you succeed with your appeal?

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