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Hi Folks,

I am seeking some help from my fellow members here.

I am a Non EU Spouse of EEA National. Recently, we submitted EEA Family Member for my Parents (EEA national's Parent in Law) to come to the UK for some time as we financially support them. The application was rejected :'(

The reasons given are word to word below. With my Questions in Red

I acknowledge that you have provided documentary evidence that you are the father of [My name]

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 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 'beneficiaries' in accordance with their own domestic legislation. (Article 3(2)).

The United Kingdom 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 United Kingdom is allowed to set terms on when it will accept extended Family members and allow them to reside in the United Kingdom as family members of an EEA national
I have no Idea what the above three paragraph are trying to say. Can anyone help us understand this? I spoke to someone on the EEA immigration helpline in the UK before applying and they mentioned my parents or EEA nationals Parents in Law are considered as Direct Family members and not as Extended Family member. I read the Regulation 7 which states the same (considered them as Direct Family Member) not sure why are they considering them as Extended Family Member as per Regulation 8 or 8(4)?

You have provided evidence of money transfers over the last six months from your Sponsor's bank account to your Bank account. Whilst I acknowledge that this shows that your sponsor regularly sends you money I am not satisfied that you have demonstrated that this money Pays for your essential needs in your country eg. rent and food.
How could one possibly demonstrate this? In my Home country we use cash most of the time. My father withdraws the money convert into local money and pays the bills and gives my mum money to do grocery shopping. Should he start taking pictures?

In addition I noted that on your application you that you are retired and live with your wife and your son in your own home in your country. I am not satisfied that you have provided sufficient evidence that you are wholly or mainly financially dependent on your sponsor, or if you are, I am not satisfied that it is dependency of necessity rather than choice. I am therefore not satisfied that you are an extended family member in accordance with Regulation 8(2) of immigration (EEA) Regulations 2006

Again, how could I provide evidence that we are their only source of income? and again why are they considering them as extended Family Member?

I therefore refuse your EEA Family Permit application because I am not satisfied that you meet all the requirement of regulation 12 of the Immigration (EEA) Regulations 2006

To be honest the reason sounds ridiculous and beyond my understanding. Apologies but I am furious and now even more determined to challenge them. I am looking for power of masses behind me i.e. you all

Does anyone think there is any point of appealing? and if yes, on what grounds?

Any Advise/suggestions would be very much appreciated

Thanks,

Most unfortunate. And this decision clearly violates EU law on several points.

You are correct, parents in ascending line are direct family members.
They would only be considered extended family members in extremis if they 'somehow' managed not to qualify as direct family members.

I can only imagine the caseworker has tried to 'help you' by treating parents as EFM due to not seeing them as FM - perhaps because of her flawed reasoning (more below).
But having done so she has then failed the application on grounds of not meeting EFM requirements. Doh!
Read the No valid proof of dependency provided section in document I have linked below.

Yes, parents do have to be dependent on you. This dependency may be financial.
Evidence of regular money transfers should be enough.

You can dig into how caseworker should assess and weigh your case in HO's own guidance:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- page 17+

Dependency does not have to be historical for FMs but just 'a matter of fact' in the here and now.
Case law has established you do not have to justify or explain the dependency.

The dependency can be a matter of choice.
The dependent does not have to justify not "getting on his bike" (ie to find or hold down a job)

Interestingly, (but possibly not relevant to you), the dependency does not prevent the dependents from working in the future (should they wish/choose to do so).

The HO's own guidance clearly even covers some of the above points!

Suggest read up on case law of Lim [2013 UKUT 437]:
A non-EEA national with her own house in home country and (as I recall) a 'trust or pension fund' (plus pension) yet still able to demonstrate dependency on her family in a Union state and win the case that bears her name.

Ref https://tribunalsdecisions.service.gov.uk/utiac/39247

Pro Tip: To refute the 'no valid dependency' allegation suggest draw up a budget (xls) of mum and dad (-in-law)'s living expenses, say monthly.
Show all sources of income (including yours - and any other supporters) and all outgoings (including essential needs).
Show your % of their total income.
Show % of essential needs that you provide.

Are in-laws also dependent on any other family members? Anyone who lives with them?
Is anyone else dependent on these parents?

Good luck.

noajthan wrote:Most unfortunate. And this decision clearly violates EU law on several points.

You are correct, parents in ascending line are direct family members.
They would only be considered extended family members in extremis if they 'somehow' managed not to qualify as direct family members.

I can only imagine the caseworker has tried to 'help you' by treating parents as EFM due to not seeing them as FM - perhaps because of her flawed reasoning (more below).
But having done so she has then failed the application on grounds of not meeting EFM requirements. Doh!
Read the No valid proof of dependency provided section in document I have linked below.

Yes, parents do have to be dependent on you. This dependency may be financial.
Evidence of regular money transfers should be enough.

You can dig into how caseworker should assess and weigh your case in HO's own guidance:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- page 17+

Dependency does not have to be historical for FMs but just 'a matter of fact' in the here and now.
Case law has established you do not have to justify or explain the dependency.

The dependency can be a matter of choice.
The dependent does not have to justify not "getting on his bike" (ie to find or hold down a job)

Interestingly, (but possibly not relevant to you), the dependency does not prevent the dependents from working in the future (should they wish/choose to do so).

The HO's own guidance clearly even covers some of the above points!

Suggest read up on case law of Lim [2013 UKUT 437]:
A non-EEA national with her own house in home country and (as I recall) a 'trust or pension fund' (plus pension) yet still able to demonstrate dependency on her family in a Union state and win the case that bears her name.

Ref https://tribunalsdecisions.service.gov.uk/utiac/39247

Pro Tip: To refute the 'no valid dependency' allegation suggest draw up a budget (xls) of mum and dad (-in-law)'s living expenses, say monthly.
Show all sources of income (including yours - and any other supporters) and all outgoings (including essential needs).
Show your % of their total income.
Show % of essential needs that you provide.

Are in-laws also dependent on any other family members? Anyone who lives with them?
Is anyone else dependent on these parents?

Good luck.

Thanks for your response.

Could you please elaborate on how has the case worker helped me by classing my parents as EFM and not FM? or is it just a sarcastic comment

Also, creating excel is a good idea and how would they trust that where they can't trust the evidence of our financial support proved through Bank statement!

We are the main support for my parents, but very rarely when things gets tough my other siblings chip in to help. My brother who lives with my parents try to make his own living doing his adhoc projects but only enough to cover his own expenses.

Thanks

therebel wrote:Thanks for your response.

Could you please elaborate on how has the case worker helped me by classing my parents as EFM and not FM? or is it just a sarcastic comment

Also, creating excel is a good idea and how would they trust that where they can't trust the evidence of our financial support proved through Bank statement!

We are the main support for my parents, but very rarely when things gets tough my other siblings chip in to help. My brother who lives with my parents try to make his own living doing his adhoc projects but only enough to cover his own expenses.

Thanks

Deadly serious actually.
The guidance suggests if an applicant fails in the FM scenario they are then examined as an EFM.
If caseworker followed such guidance (for some reason best known to themselves or some perceived problem with the evidence presented) then that is what may have happened.
You have to show they were wrong to rollover to EFM case because the FM case (clearly) applies.

If they have not done this then its a fundamental flaw in their argument based on a fundamental misunderstanding of the Directive (and the UK's transposed EEA Regulations);
ie an error that you can easily blow out of the water,

All you can do is present supporting evidence that you can back up from as many sources as possible.
Money transfer is not enough alone, it has to be for essential needs. The % of budget is a factor too.

Clearly the fewer supporters and the fewer other revenue streams the in-laws have the better;
it means the numbers will tend to stack up in your favour (without noise or distraction from other sources).

Get World Bank, IMF or UN data on cost of living, and the cost of staples and cost of housing, in region x of country y if you have to.

Your main case is going to be based on:

1) as much as you can use from from Lim
Its rock-solid case law so use it and quote it.

and
2) the fundamental error (readily refuted) that the caseworker has made by focusing on EFM and quoting all the wrong EEA Regulations.
Refute by quoting the correct EEA Regs plus Directive 2004/38/EC and associated Articles.

plus
3) the budget xls & etc

noajthan wrote:

therebel wrote:Thanks for your response.

Could you please elaborate on how has the case worker helped me by classing my parents as EFM and not FM? or is it just a sarcastic comment

Also, creating excel is a good idea and how would they trust that where they can't trust the evidence of our financial support proved through Bank statement!

We are the main support for my parents, but very rarely when things gets tough my other siblings chip in to help. My brother who lives with my parents try to make his own living doing his adhoc projects but only enough to cover his own expenses.

Thanks

Deadly serious actually.
The guidance suggests if an applicant fails in the FM scenario they are then examined as an EFM.
If caseworker followed such guidance (for some reason best known to themselves or some perceived problem with the evidence presented) then that is what may have happened.
You have to show they were wrong to rollover to EFM case because the FM case (clearly) applies.

If they have not done this then its a fundamental flaw in their argument based on a fundamental misunderstanding of the Directive (and the UK's transposed EEA Regulations);
ie an error that you can easily blow out of the water,

All you can do is present supporting evidence that you can back up from as many sources as possible.
Money transfer is not enough alone, it has to be for essential needs. The % of budget is a factor too.

Clearly the fewer supporters and the fewer other revenue streams the in-laws have the better;
it means the numbers will tend to stack up in your favour (without noise or distraction from other sources).

Get World Bank, IMF or UN data on cost of living, and the cost of staples and cost of housing, in region x of country y if you have to.

Your main case is going to be based on:

1) as much as you can use from from Lim
Its rock-solid case law so use it and quote it.

and
2) the fundamental error (readily refuted) that the caseworker has made by focusing on EFM and quoting all the wrong EEA Regulations.
Refute by quoting the correct EEA Regs plus Directive 2004/38/EC and associated Articles.

plus
3) the budget xls & etc

Thank you. I will draft something and post to see what you think...

noajthan wrote:

therebel wrote:Thanks for your response.

Could you please elaborate on how has the case worker helped me by classing my parents as EFM and not FM? or is it just a sarcastic comment

Also, creating excel is a good idea and how would they trust that where they can't trust the evidence of our financial support proved through Bank statement!

We are the main support for my parents, but very rarely when things gets tough my other siblings chip in to help. My brother who lives with my parents try to make his own living doing his adhoc projects but only enough to cover his own expenses.

Thanks

Deadly serious actually.
The guidance suggests if an applicant fails in the FM scenario they are then examined as an EFM.
If caseworker followed such guidance (for some reason best known to themselves or some perceived problem with the evidence presented) then that is what may have happened.
You have to show they were wrong to rollover to EFM case because the FM case (clearly) applies.

If they have not done this then its a fundamental flaw in their argument based on a fundamental misunderstanding of the Directive (and the UK's transposed EEA Regulations);
ie an error that you can easily blow out of the water,

All you can do is present supporting evidence that you can back up from as many sources as possible.
Money transfer is not enough alone, it has to be for essential needs. The % of budget is a factor too.

Clearly the fewer supporters and the fewer other revenue streams the in-laws have the better;
it means the numbers will tend to stack up in your favour (without noise or distraction from other sources).

Get World Bank, IMF or UN data on cost of living, and the cost of staples and cost of housing, in region x of country y if you have to.

Your main case is going to be based on:

1) as much as you can use from from Lim
Its rock-solid case law so use it and quote it.

and
2) the fundamental error (readily refuted) that the caseworker has made by focusing on EFM and quoting all the wrong EEA Regulations.
Refute by quoting the correct EEA Regs plus Directive 2004/38/EC and associated Articles.

plus
3) the budget xls & etc

First of all, I strongly disagree with the case worker who assessed my case on the basis of Article 3 of Directive 2004/38/EC referring to me as an “extended family member”, which states:

“Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2”

However, please note, Directive 2004/38/EC (Point 2 of Article 2) defines a Family Member as:

“the dependant direct relatives in the ascending line* and those of the spouse or partner”

*Ascending line is the line of relationship traced backward, one’s father and mother.

As I am a father of (My name) (please see Birth Certificate enclosed) who is married to a (Wife name) (Marriage Certificate enclosed), I therefore meet the criteria of a Direct Family Member as defined above and my case has to be assessed on the basis of Directive 2004/38/EC Point 2 of Article 2 and NOT Point 2 of Article 3.

DEPENDANCY

To clarify few points on my dependency, as per refusal letter which stated:

“… I am not satisfied that you have demonstrated that this money Pays for your essential needs in your country eg. rent and food.”

I would like to refer to case law of Lim (EEA -dependency) [2013] UKUT 437 (IAC) which states:

“24. … for dependency to arise it is not necessary that a person be wholly or even mainly dependent. If a person requires material support for essential needs in part, that is sufficient.”

It is important to note that I am predominantly dependant on my son and daughter-in-law who send funds on monthly basis to pay for my and my wife’s essential needs and my dependency is certainly not by choice but a necessity. I have enclosed a document summarising our monthly essential expenses and proof that my son and daughter-in-law cover 96% of those by transferring funds (£400 / month) on monthly basis. See enclosed budget document.

As you can see our monthly income is circa £600 consisting of £400 money transfer from my son and daughter-in-law; and £200 contribution from my youngest son who earns through photography projects and most of his income is used to cover his own expenses. Total amount of our essential needs is £417 per month – every transaction has evidence enclosed.

Another reason for the refusal stated below:

‘’ I am not satisfied that you have provided sufficient evidence that you are wholly or mainly financially dependent on your sponsor, or if you are, I am not satisfied that it is dependency of necessity rather than choice.”

I am uncertain about why the case worker mentioned dependency of necessity rather than choice. I can only refer to LIM case law Point 25 and confirm that I am retired businessman and at this age unlikely to find employment and earn a living. Also, in our country, government does not provide state pension if your lifetime employment was not in government institution. Therefore, I have to rely on my son and daughter-in-law to pay for essential needs. If the case worker meant I should go back into employment even after retirement and the dependency is by choice rather than necessity, according to the Point 25 of LIM case law – the reasons why there is dependency should be irrelevant.

Please refer to LIM case law:

“25. Whilst the jurisprudence has not to date dealt with dependency of choice in the form of choosing not to live off savings, it has expressly approved dependency of choice in the form of choosing not to take up employment: see above Lebon [22]. I readily acknowledge that in SM (India) Sullivan LJ saw it as possible that there was a distinction relating to the situation of a claimant who preferred living off savings and a claimant who preferred not to work (see above [14]). But it is very difficult to discern any principled basis for differentiating between the two different forms of dependency of choice when the test is simply a question of fact and the reasons why there is dependency are irrelevant. Indeed, if anything, one might have thought that expecting a retired person to utilise existing financial resources after a lifetime of work is more problematic than expecting a young able bodied person to earn a wage.”

However, if the case worker meant that the property we own should be sold and the income from the property sale should be used to cover our living expenses for the next 10-20 years – it is important to mention that we have the ultimate right not to sell our property just to meet our living expenses. I refer to the LIM case law (2013) and the Article 8 of the European Convention on Human Rights which clearly states that (1) Everyone has the right to respect for his private and family life, his home and his correspondence.

“27. To the extent that the jurisprudence clearly considers that an examination of personal circumstances is relevant, in respect of the claimant, it would appear that her situation is one in which she has a sentimental attachment to her home as well as it being a potential financial asset. Both the savings she has and the house she owns are regarded as assets she wishes to preserve for her descendants. She is intending to set up trusts for her children. They are earmarked, that is to say, out of legitimate inter-generational family considerations. Hence, whilst it is correct that in the claimant’s case it is not suggested that refusal of entry clearance would have any deterrent effect on the EEA principal or her daughter-in-law in terms of their continuing to live in the UK and his continuing to exercise Treaty rights, it remains that the claimant’s own right to respect to family and private life would be adversely affected if she were required to sell her house or live off her savings (as the ECO suggested she could). The desire to leave an inheritance for one’s descendants is a matter that would appear to fall within the scope of Article 8 of the ECHR (Article 7 of the Charter of Fundamental Rights).”

In summary, I do not believe my case has been dealt with in a competent manner and caused us additional efforts and emotional distress. Therefore, I request to accept my appeal and reconsider the decision made by ECO.

Does this look a convincing appeal or could I add anything extra to make it more sound

Seems comprehensive and well-argued.
The references to EAA Regs and case law (Lim) seem sound.

May be worth scanning Jia, Reyes (or other related cases) to see if you can bring in any other titbits of judicial wisdom and pronouncements.
See https://www.freemovement.org.uk/cjeu-de ... n-of-fact/
&
http://europeanlawblog.eu/?p=2329

You could bring out the point that (for FMs) dependency only has to be established as 'a matter of fact' to complement the argument you make about choice/necessity.

Do you have any additional documents to back up the budget xls?

Is there anything you can say about constraints to your ability to exercise free movement by not having in-laws with you?
Concerns or worry or emotional tugs back to home country that your spouse has perhaps? (impact on family cohesion etc)

noajthan wrote:Seems comprehensive and well-argued.
The references to EAA Regs and case law (Lim) seem sound.

May be worth scanning Jia, Reyes (or other related cases) to see if you can bring in any other titbits of judicial wisdom and pronouncements.
See https://www.freemovement.org.uk/cjeu-de ... n-of-fact/
&
http://europeanlawblog.eu/?p=2329

You could bring out the point that (for FMs) dependency only has to be established as 'a matter of fact' to complement the argument you make about choice/necessity.

Do you have any additional documents to back up the budget xls?

Is there anything you can say about constraints to your ability to exercise free movement by not having in-laws with you?
Concerns or worry or emotional tugs back to home country that your spouse has perhaps? (impact on family cohesion etc)

Hi,

I do have Budget sheet which I will submit with other bills and Property documents. I have added the point of Dependency as the matter of fact. Thanks for the links to the laws, will look through and find relevant items.

I am trying to think what could be the reasons of constraints to exercise free movement by not having in laws? Also, did you mean concerns/worries/emotional tugs my wife have of my Parents being in my Home country?

Many Thanks

therebel wrote:Hi,

...

I am trying to think what could be the reasons of constraints to exercise free movement by not having in laws? Also, did you mean concerns/worries/emotional tugs my wife have of my Parents being in my Home country?

Many Thanks

Yes I did mean that.

Because free movement is not about chain migration.
Free movement is about having happy, mobile workers living and working as busy, productive economic units within EU member states.
Anything that facilitates that is 'good';
anything that mitigates or works against that ideal is 'bad'.

So anything that upsets your wife upsets you; it stops you (or both of you) being productive and happy in life and work in Europe due to natural family worries in the back of your mind over the wellbeing of aging parents far away.
And that's bad for the overall GDP of Europe plc.

The theme to focus on is all about creating and strengthening family life by having in-laws by your side.

noajthan wrote:

therebel wrote:Hi,

...

I am trying to think what could be the reasons of constraints to exercise free movement by not having in laws? Also, did you mean concerns/worries/emotional tugs my wife have of my Parents being in my Home country?

Many Thanks

Yes I did mean that.

Because free movement is not about chain migration.
Free movement is about having happy, mobile workers living and working as busy, productive economic units within EU member states.
Anything that facilitates that is 'good';
anything that mitigates or works against that ideal is 'bad'.

So anything that upsets your wife upsets you; it stops you (or both of you) being productive and happy in life and work in Europe due to natural family worries in the back of your mind over the wellbeing of aging parents far away.
And that's bad for the overall GDP of Europe plc.

The theme to focus on is all about creating and strengthening family life by having in-laws by your side.

Hi Noajthan, (This is therebel with different account - i lost the details of the first account)

Hope you are doing well.

It has been long and hard 6 months in terms of mental stress for me and my family and after constant chasing, I now finally have a response from the court. Unfortunately it is not a good news....... I am devastated and really down at the moment... We provided all the documents what we discussed and thought was relevant on the basis of rejection but Judge seems to have to come back with completely odd conclusion. Now she is disputing that that my Wife is not even exercising treaty rights even after she submitted her work payslips/ work letter... I really do not know whether to cry or laugh...... P.S. I do not think Home office passed on all our documents to judge too.

Here is her analysis and facts finding:

The Appellants clearly fall to be considered as direct family member under Reg. 7. However, there is limited evidence of dependency upon the EEA Sponsor and or her husband. Bills and lease have been submitted, but there is a little or no evidence from bank statements or other records to show how the bills are met. (I shared Bank statement to proof that money was transferred which was in GBP and my father withdraws and convert and pay all the Bill, in Pakistan they are just introducing DD) There is no evidence to exclude any other source of income, such as pension or income from land, no evidence of tax paid or any official record of Appellant's finances, (I told them they are retired and are not entitled to any public funding). There is real evidence from the sponsors in the UK either, and this is paper appeal so no oral evidence has been available (IT COST more and we thought our case is straight forward pffff I am getting more frustrated as I am reading her analysis again) In addition, the application form seems to refer to the Appeallants seeking to come for a month only, as tourist (I really don't get where is she getting this from) This then contradicted by the grounds of appeal, which talk about benefit of having them living near or with EEA Sponsors and their child.

I am satisfied on the evidence available that the Appellants are the parents of their son who is married to EEA national (THANK GOD thought she was going to doubt that too) However, there is absence of reliable evidence to show that they are dependent on the EEA sponsor or their son, and in fact there is before me very limited evidence to show that the EEA national is excising treaty rights in the UK. ( I honestly donot know what more to do................they have asked to respond within 14 days to ask for permission to refer to upper tribunal and show what grounds we are asking permission)

I don't know what to do.... Help needed

Most unfortunate.

Clearly you have to, at very least, address each point.
Refute them using Directive and case law of Lim.

Show without doubt sponsor is a qp.

My analysis and suggestions (made previously) still hold good.
Not sure if you had opportunity to uae them or build on them in some way?

Worth moving this thread to the EEA-Route Applications forum, as it is more pertinent to that forum than generic non-UK European migration.

noajthan wrote:Most unfortunate.

Clearly you have to, at very least, address each point.
Refute them using Directive and case law of Lim.

Show without doubt sponsor is a qp.

My analysis and suggestions (made previously) still hold good.
Not sure if you had opportunity to uae them or build on them in some way?

Just wanted to drop a quick note to say

Many Thanks for your help.

We have re applied and got the Family Permit for my parents (Happy times)