EEA family permit for non-eea family member ( brother )

[Obie]

the regulations say "living in another EEA state", which Nigeria isn't.

Regulations 8(2) and 12 1(b) (i) are unlawful regulations, following Metock and the court of appeal in Bigia,in so far as they demand lawful residence in another memberstate, or even presence in another memberstate for rights to be claimed.

OP, provided you can show you have lived with your brother in same household in Nigeria, and the house you lived at was rented or owned by yourself, and that your brother in Nigeria is financially dependant on you, then you should be fine. Please note that the UK legislation gives so much discretion to an ECO under regulation 12, when it comes to Extended family members, than it does to Nuclear family members.

However , if the visa is refused, the ECO must justify the refusal, and give him a right of appeal of the decision.

Unfortunately, no one can say for certain that he will get it, as it is open to wide discretion.

[avjones]

the regulations say "living in another EEA state", which Nigeria isn't.

The regulations still say that? Directive 2004/38/EC does not say "living in anothe EEA state". That extra "living in another EEA state" is likely something which could be fought on the basis of recent ECJ decisions.

it does indeed. And the guidance states:

An applicant may be considered under regulation 8 of the 2006 Regulations if s/he falls within any of the following conditions (see overleaf):

• Was living as part of the EEA national’s household in an EEA state before the EEA national came to the United Kingdom¹;

And the directive says, in Article 3:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence

I don't see that the brother here was a member of the EU citizen's household.

[Directive/2004/38/EC]

I don't see that the brother here was a member of the EU citizen's household.

If so, then not qualified as a dependent.

But other family members who have been members of the EU citizen's household "in the country from which they have come", I think do have reason to consider a challenge the UKBA interpretation.

[oflondon]

I'm really confused now

[avjones]

I'm really confused now

Did your brother, you and your spouse all live together in Nigeria?

[oflondon]

@avjones.........
No but only during the wedding period and my brother has been financially dependent on us(my spouse and I ) till today.

[Patience]

Your brother should qualify.

He is financially dependent on you and your wife(EU National) to meet his essential needs from the country he is coming from(Nigeria).

You have to proof financial dependency.It should be a matter of fact.

That is how she can qualify.

Someone should correct me if I am wrong.

2 (a) any other family members [...] who, in the country from which they have come, are [either] dependants or members of the household of the Union citizen

[Obie]

There is no requirement that the brother has to be dependant on the Union Citizen. Dependancy or member of the same household as the spouse of the Union citizen, should suffice for that purpose.

Also the UKBA has acknowledge that regulation 8(2) and 12 (1)b(i) are unlawfull,and has changed caseworker guidance accordingly.

Page 7 of this guidance state this.

[Patience]

There is no requirement that the brother has to be dependant on the Union Citizen. Dependancy or member of the same household as the spouse of the Union citizen, should suffice for that purpose.

Also the UKBA has acknowledge that regulation 8(2) and 12 (1)b(i) are unlawfull,and has changed caseworker guidance accordingly.

Page 7 of this guidance state this.

So you mean member of the household of the spouse of a Union citizen(NON EEA FAMILY MEMBER) in the country from which they are coming from.

There the OP's brother qualifies.Since his brother is a member of the household of the OP in Nigeria.

Right?

[oflondon]

UK Implementation
Regulation 8 of the 2006 Regulations (which deals with extended family members) implements this duty in the United Kingdom. Under Regulation 8 there are four kinds of extended family member:
•
a person who is a relative of an EEA national or his/her spouse or civil partner and who is dependent on the EEA national or is a member of his/her household, and who either (i) is accompanying the EEA national to the UK / wishes to join him there, or (ii) has joined him in the UK and continues to be dependent on him or to be a member of his/her household.
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My brother should qualify for EEA family permit

[vinny]

See also VN (EEA rights - dependency) Macedonia [2010] UKUT 380 (IAC) (22 October 2010)

[avjones]

UK Implementation
Regulation 8 of the 2006 Regulations (which deals with extended family members) implements this duty in the United Kingdom. Under Regulation 8 there are four kinds of extended family member:
•
a person who is a relative of an EEA national or his/her spouse or civil partner and who is dependent on the EEA national or is a member of his/her household, and who either (i) is accompanying the EEA national to the UK / wishes to join him there, or (ii) has joined him in the UK and continues to be dependent on him or to be a member of his/her household.
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My brother should qualify for EEA family permit

Has to be a dependent of the EEA national, not of the spouse.

[Patience]

i've checked the link.Thanks......that means my brother is eligible for EEA family permit. We lived in the same household before coming to the U.K. At the moment, he is financially dependent on me and my EEA spouse ( studying )although he lives in Nigeria but we want him to come over to the U.K . My EEA wife and I work full-time here in U.K and she ( My EEA Spouse ) is ready to sponsor him.
Can he go ahead and apply for EEA family permit in Nigeria? Please advice. Thanks

This is where your case rests on.

You have to proof financial dependency or material dependency. You must provide proof funds from your EEA wife was sent to country from which your brother is coming from(Nigeria) in other for him to meet up with his essential needs.

Bank statement of transfers,money transfer receipts etc.

Just proof your brother in Nigeria had established factual financial and material dependency to your EEA wife.You are irrelevant in this matter.

Someone correct me if my interpretation is wrong.

Thanks

[fysicus]

@oflondon:

Your reading of the regulations seems to be based on wishful thinking. My interpretation is that you should provide a convincing answer to the following questions:

Did your EEA wife at some point in time actually emigrate to Nigeria?
Did she live there in a house of which she was the main resident (owner or primary renter), and did your brother actually move into the same house (having previously lived with your parents I presume)?
Did your wife and your brother live together in this house for a considerable time (a few weeks is definitely not enough)?
Where has your brother lived after you and your wife emigrated to the UK? Did he go back to your parents?

Only with answers to all of these can we have an idea if he can be considered as a member of your wife's household.
My guess is that his application will be viewed with a lot of suspicion, and may be even more so if your wife is from a so-called A8 country.