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 (f
or 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
