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EEA2 Application Refused

Use this section for queries concerning applications on any of the EEA series of forms, and also for applications for EEA Family Permits.

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ed.dude
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EEA2 Application Refused

Post by ed.dude » Thu Mar 11, 2010 1:12 am

Hello,

I am an EEA member from italy and my brother who's a non-EEA member applied for a resident card (EEA2) based on my docs. However, he was refused for 2 reasons:

1.That he failed to prove that i'm a qualified person.
2. That he failed to provide evidence that he was dependant on me in another EEA country before coming to the UK or depedant on me in the UK here.

When my brother applied, he included in the application my pasport(EEA), over 4 yrs joint tenancy agreement, my wageslips, both of our birth certificates and some utility bills.

So the case of my brother not showing evidence that i am a qualified person is not correct. He obviously included my payslips, which suggests that i am exercising my treaty right and thus makes me a qualified person as explained in EEA Regulations(6) 2006.


Further, isn't the joint tenancy agreement enough to show that indeed he's a member of my household as in Regulation 8(2) of the EEA Regulations 2006? How does being a member of my household differ from being a dependant? Am asking this question coz Regulation 8 says a depedant or a member of the EEA family's household.

Also, is it requirement that my brother should have lived with me in Italy?He wasn't living with me in Italy though but has lived with me here for about 4 yrs.


My brother has been living in the UK for over 6 years on a Student Visa till it expired when he made the EEA2 application. Does he even qualify for permanent residence based on my status instead of making the EEA2 application? (He's been here in the UK for over 6 years and he has his p60's and NHS card to prove it). He also has comprehensive accident and sickness insurance from 2007. Will it help?


Can he apply for Permanenet Residence based on him being here for over 6 years? (Not EEA4) I mean normal ILR, not on my EEA membership.


PLEASE NOTE: He's also appealed the EEA2 Decision (Refusal). His student visa has also expired though it expired after he made the EEA2 application

Any help appreciated.

Thanks.

Obie
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Post by Obie » Thu Mar 11, 2010 1:54 am

Your brother is required to show evidence of dependancy on you, without which, he will not succeed in his appeal.

If he can show evidence that he lived with you in Italy under the same roof/household, for which you had primary ownership, then he will qualify too.

He will not be able to apply for PR as he has not lived lawfully in the UK for 10 years.

Please note that your brother is required to show membership of your household in both Italy and the UK or show evidence that you were providing for his need when you were in Italy and on your arrival in the UK.

Also the household, has to be under your ownership for him to qualify.
Black life matters.

ed.dude
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Post by ed.dude » Thu Mar 11, 2010 2:24 am

Obie wrote:Your brother is required to show evidence of dependancy on you, without which, he will not succeed in his appeal.

If he can show evidence that he lived with you in Italy under the same roof/household, for which you had primary ownership, then he will qualify too.

He will not be able to apply for PR as he has not lived lawfully in the UK for 10 years.

Please note that your brother is required to show membership of your household in both Italy and the UK or show evidence that you were providing for his need when you were in Italy and on your arrival in the UK.

Also the household, has to be under your ownership for him to qualify.
Thank you Obie,

I thought to qualify for PR is 5 years?- EEA Regulations 8(4), 2006. (He's been living in Uk here as a student on a student visa for 4 years and when he applied for the EEA2, it has taken about 2 years, so in total 6 years in UK). Was that 2 years when the application was in the HO legal?

Well, he's got receipts of money sent him when i was in Italy and he in Sud-Africa. Can that be helpful?

vegeta_2009
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Post by vegeta_2009 » Thu Mar 11, 2010 5:29 am

a student visa comes under Tier1 (i believe) and it is UK immigration law, so the 4 years your brother spent here (as a student) cannot count towards 5years rule under EU law. not sure about the 2 years it took to apply for EEA2 though

like Obie said, 10 years is the time when your brother qualify for PR (that comes under UK law and it cover pretty much all Tiers as long as you lived here continuously and without long breaks and legally)

ed.dude
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Post by ed.dude » Thu Mar 11, 2010 10:34 am

vegeta_2009 wrote:a student visa comes under Tier1 (i believe) and it is UK immigration law, so the 4 years your brother spent here (as a student) cannot count towards 5years rule under EU law. not sure about the 2 years it took to apply for EEA2 though

like Obie said, 10 years is the time when your brother qualify for PR (that comes under UK law and it cover pretty much all Tiers as long as you lived here continuously and without long breaks and legally)
Thanks vegeta.
Please note that your brother is required to show membership of your household in both Italy and the UK or show evidence that you were providing for his need when you were in Italy and on your arrival in the UK.

Also the household, has to be under your ownership for him to qualify.
Hello Obie,

Since my brother was NOT living with me in Italy, will the receipts of money sent him be proof that he was depending on me? He was in South-Africa (Non-EU) then.

Also, will joint tenancy agreement and joint bank accounts in our names be enough to prove that he's a member of my household and such a dependant?

Will those 3 documents (receipts, joint tenancy agreement and joint bank statements) work?

One more thing. My brother has not been in employment since the begining of last year. Can he get a letter from the DWP to verify that he's not being working? I believe that could also go a long way to proof that he's been wholly/mainly dependent on me. Right?

thanks.

Obie
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Post by Obie » Thu Mar 11, 2010 5:06 pm

Ed, the joint tenancy will show that you live in the samehousehold, but how the rent is paid, and who has primary ownership of the household would also be an important factor and will be taken into consideration,

How old is your Brother?

The above will cover the situation in the UK, in regards to South Africa, you will need to show that he was soley dependant on you, when he lived there.

You mentioned he has been in the UK for 6 years, was that befor you came or after.

There is a caselaw which preclude extended family member from benefiting if they entered the UK before their sponsor, as they are meant to be accompanying or joining the sponsor, as opposed to the sponsor joining them.

As you brother was lawfully resident in the UK, as opposed to the subject mentioned in case law, this might not be a factor.

Submit the evidence of support you provided when he was in South Africa, that should help hugely.

I wish you the best with your appeal.
Black life matters.

ed.dude
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Post by ed.dude » Thu Mar 11, 2010 7:45 pm

Thanks Obie,

Rent is paid by me via Standing Order. Though we have joint a/c, i pay the rent thro' s/o from my personal account. Should i include my personal bank statement attesting to me being the rent payer? We will also be attaching our joint bank statement though. Is it OK?

I have been in the UK for only 4 years so definitely he was here 2 yrs prior to my arrival from Italy.

So we would be submitting the receipts of monetary transactions from me to him when he was in South Africa.

I pray everything works fine.
There is a caselaw which preclude extended family member from benefiting if they entered the UK before their sponsor, as they are meant to be accompanying or joining the sponsor, as opposed to the sponsor joining them.

As you brother was lawfully resident in the UK, as opposed to the subject mentioned in case law, this might not be a factor.
You got me scared there a bit. So because he was lawfully resident in the UK here prior to my arrival, it shouldn't be a problem, right?

Do you think a letter from the Department of Works and Pension(DWP) attesting to the fact that he's not being in employment for sometime now also help? - At least that could mean that since we're living in the same addres then he depends on me materially and financially, right? Cos, how could he survive without working if not obviously depending on me.

Oh my brother is 27 yrs and i'm 33. Could that be a problem?

Cheers.

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Post by DFDS. » Mon Mar 15, 2010 12:32 pm

Obie wrote:Ed, the joint tenancy will show that you live in the same household, but how the rent is paid, and who has primary ownership of the household would also be an important factor and will be taken into consideration,

How old is your Brother?

The above will cover the situation in the UK, in regards to South Africa, you will need to show that he was soley dependant on you, when he lived there.

You mentioned he has been in the UK for 6 years, was that befor you came or after.

There is a caselaw which preclude extended family member from benefiting if they entered the UK before their sponsor, as they are meant to be accompanying or joining the sponsor, as opposed to the sponsor joining them.

As you brother was lawfully resident in the UK, as opposed to the subject mentioned in case law, this might not be a factor.

Submit the evidence of support you provided when he was in South Africa, that should help hugely.

I wish you the best with your appeal.
Obie i find it very difficult for one to prove dependency. If the joint tenancy agreement is just not enough, or proof that one leaves under the same roof, then there is a problem.

Just imagine, how do you prove that one provides for one's financial needs, when they already leave under the same roof? I thought, the fact that some one is not working, or has no NI contributions, is just enough to prove dependency!
Relax! and this too shall pass, secrets are like seasons, they change.

86ti
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Post by 86ti » Mon Mar 15, 2010 1:32 pm

Not sure if and how that would work in the UK but an affidavit which legally binds the 'sponsor' to support a dependant with a certain amount of money could do the trick.

Obie
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Post by Obie » Mon Mar 15, 2010 3:29 pm

DFDS, simply having a joint tenancy agreement will not work if both parties are contributing equally to the rent cost.

Under the EU directive, the EEA national on whom the non-EEA is dependant, will need to show he/she has primary ownership of the household on which the non-EEA reside.

An affidavit is a brilliant idea, that is what i eventually did with the Irish, before i secured my residency under the directive.,

Please note, however that this case is slightly different as the applicant never lived with the OP in Italy, therefore the burden of proof of dependancy will be more intence.
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Post by DFDS. » Mon Mar 15, 2010 5:11 pm

Obie wrote:DFDS, simply having a joint tenancy agreement will not work if both parties are contributing equally to the rent cost.

Under the EU directive, the EEA national on whom the non-EEA is dependant, will need to show he/she has primary ownership of the household on which the non-EEA reside.

An affidavit is a brilliant idea, that is what i eventually did with the Irish, before i secured my residency under the directive.,

Please note, however that this case is slightly different as the applicant never lived with the OP in Italy, therefore the burden of proof of dependancy will be more intence.
UKBA insists on having resided in a EU member state, before both of you come down in the UK. This has always been there way of going around while processing OFMs applications.
Relax! and this too shall pass, secrets are like seasons, they change.

ed.dude
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Post by ed.dude » Mon Mar 15, 2010 8:39 pm

DFDS. wrote:
Obie wrote:DFDS, simply having a joint tenancy agreement will not work if both parties are contributing equally to the rent cost.

Under the EU directive, the EEA national on whom the non-EEA is dependant, will need to show he/she has primary ownership of the household on which the non-EEA reside.

An affidavit is a brilliant idea, that is what i eventually did with the Irish, before i secured my residency under the directive.,

Please note, however that this case is slightly different as the applicant never lived with the OP in Italy, therefore the burden of proof of dependancy will be more intence.
UKBA insists on having resided in a EU member state, before both of you come down in the UK. This has always been there way of going around while processing OFMs applications.
Can we show the court these rights for Non-EEA members? See 2.4 for extended Family members: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

thnx.

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