EEA Family permit Refusal

[EEAcitizen]

EEA Family permit refusal

Hello citizens,

Request: Need advice and help in making appeal against the decision.

Background:

I am from Indian origin and eventually became swedish Citizen (was working there in Sweden) and moved to UK in Feb 2007. I have a brother ( with Indian Passport) moved to Sweden for his master degree course and he moved to Sweden wholly depending on me. We both stayed in the same place and I was financially and emotionally supported him during his stay(around 2 years) in Sweden. (I got Bank statement proof to show that I send him money every month for his expense).

UK visa:

My brother already had UK visitor visa and visited UK once.
He was also granted WHM ( WORKING HOLIDAY MAKER) visa on March 2007. So When he applied for EEA Family permit, he holds a valid UK WHM visa for 2 years

EEA Family permit:
We applied for EEA family permit in May 2007 and got the decision last week. They refused the EEA family permit.

Reason for Refusal:
Reasons listed below
1. While he applied for WHM visa in March 2007, he mentioned that one of his friend will sponsor him during his working holiday, if needed.
2.The applicant doing part time employment.


My doubts/Questions:

1. What do they mean as "DEPENDANT"? or The law means that the applicant should not even work at all. Any previous case referrence ?

2. I was unemployed when I moved to UK in Feb 2007, so how can I sponsor my brother. So his friend promised that he will sponsor if NEEDED.
I wonder how does that mean that my brother is not dependent to me.

3. Can any one help me to find more detailed explaination about "DEPENDENCY" based on the Regulation 12 of the Immigration( EEA) regulations 2006.
please help me with any previous case reference, if you know any

So I request you people to help me in making an appeal against the decision. I greatly appreciate your time spent for me.

Thank you

EEA Citizen

[Docterror]

The two problems that I see are that-

1) If your brother can be a dependant on someone else as well, how can you argue that he is dependant only on you? If needed there is someone else to look after him as well.

2) If he is working, part time or not, and can become self-sufficient, how will they buy the story that he is dependant on you?

Also, how old is your brother?

[EEAcitizen]

Thank you for your reply.

I think you miss understood or may be My explaination is not sufficient enough to make you understand the real situation.

1. My brother is dependent on me for more than 10 years now. Initially I guided, supported and emotionally dependant and for the past 3 years I was also financially supporting him. We have a close family bond and I think it is hard to explain the family bonds in words.

2. He did work part time jobs (around 10-15 hrs a week) and I dont think that any one can be selfsufficient with that job. This job helped us to survive when I was unemployed.

It will be great if you can help me with my above questions about explaination of "Dependency" based on EEA regulations.

Thank you again.

[avjones]

Hi - your brother now has a master's degree, is that right?

Is he not supporting himself, therefore?

[archigabe]

EEA citizen, I don't think European immigration authorities are very open to someone 'sponsoring' foreign citizen siblings even if you claim they are entirely dependent on you.With him having held a working holiday maker visa or a Master's degree it is going to be very difficult for you to prove he is dependent on you unless he is handicapped or sick and depends on you entirely for survival. I suspect you don't entirely understand the concept of 'dependency' in the eyes of the authorities. Feelings or emotions don't have much weight when it comes to immigration.

[JAJ]

Why can't he live in Sweden? (if he has studied there)

[eufreemovement]

Hi

Your brother comes under article 3(2)a of directive 2004/38/EC.

Article 3

Beneficiaries

1. This Directive shall apply to all Union citizens who move to or reside in a Member State other
than that of which they are a national, and to their family members as defined in point 2 of Article 2
who accompany or join them.

2. 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 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

The directive gives rights not only to you and also to your family members (derived rights) irrespective of their nationality.

According to the settled case law of ECJ, ... It must also be borne in mind that the aim of directive, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker' s family in the society of the host country .."

Many of the provisions of Directive 2004/38/EC on dependency reflect the law (including the case law) as it was before.

There has been case law in this area before the European Courts and some of the main cases have already been supplied where the Court has stated that a dependent family member is one who is dependent on material resources supplied by another member of the family.

The Advocate General in Chen stated as support, for example, that the English language version uses a neutral term like “dependentâ€

[Wanderer]

I though the EEA Family Permit extended only to spouses, civil partners, and and extended family members above and below the line decendancy, ie children and grandchildren and parents and grandparents. I see no reference to siblings.

[archigabe]

This issue was discussed in depth in a similar case to yours here...

http://www.immigrationboards.com/viewto ... 34&start=0

[Docterror]

There is a small difference between the case pointed out in that link as the person in question in that link was a family member who did not live with the EEA national as a part of his household. So, in refusing the EEAFP, they did not deny the right of maintaining the unity of the family in a broader sense, and so is justified to a great extend.

But in this case, the factors are different. They have been a part of the household living together as a family and this is very important.But, having a Master's degree, already having stated that there is someone who can financially support him and being able to work to support himself and also the rest of the family when the EEA family member is out of work, sheds doubt on the 'dependancy' part of the requirement.

So, EEAcitizen, dependancy according to the EEA regulations are just that as according to logic and what you can make out from Directive 2004/38/EC, i.e- people who are dependant on you. If you can successfully prove that inspite of all the evidence you have submitted to the contrary, you will succeed in the appeal. Stranger things are known to have happened.

[eufreemovement]

This issue was discussed in depth in a similar case to yours here...

http://www.immigrationboards.com/viewto ... 34&start=0

The above link discussed about the family members who lived under the same household till 2002 and the EEA National supporting the family members who are living in a third country.

In my view, Even that they have satisfied the EEA Requirements.

While interpreting EU law, it should have to be interpreted broadly particularly in 'Principle of proportionality'

They may have lived together under the same house as a one family and still the EEA citizen is supporting for their maintenance.

The difference between that case and this case is the family member coming from member states as interpreted by UK authorities. That link family members coming from their country of origin which said in the directive.

If you see any other language directive 2004/38/EC, the article 3(2)a refers to country of origin of their family members. Even in the recent case Jia cleared or clarrified the wording properly.

In this case, the apellant that is your brother need to satisfy the 'Dependency' requirement.

[sakura]

How is he dependent if he is on a WHM? Means he can support himself, no? And he seems well qualified to do so.

Is this dependency as a real necessity or as a choice? I'm thinking that applying for the WHM wasn't the best move. He moved to the UK on the WHM, worked/used it for 2-3 months...is that right? In what country did he apply for the WHM?

[EEAcitizen]

THANK YOU everyone for your replies, support and help.
I answered your questions and doubts below.

To Amanda Jones
He completed his Masters and he is looking for a proper job. Rightnow he is fine tuning his master degree thesis. He get sponsorship for his thesis and THIS IS NOT A JOB.

When parents and partners ( though if they are working and earning to support themselves) can be dependent, why not siblings, because here the issue is Family. More than money there are different things to say that we both are dependent. I am not sure whether the cultural difference between the 3rd world countries and European countries play a role here to make the authorities miss understood about the family relationships.

To Archigabe

He applied Work Permit Visa and never used it. Once after I moved to UK, I want my brother to be with me and I found this WHM visa and we applied and got. BUt then I know about this EEA Family permit, then I been adviced that EEA family permit is a good option for my brother. So We requested authorities to change the WHM to EEA Family permit.

But now the Worst thing that the Authorities did is, They CANCELED that WHM Visa too.
To JAJ
I don't want to break my family.The issue is either I should go to Sweden or he should come to UK.

To Eurfreemovement
Yes, I am looking for some good Barrister or Laywer to support my case. If you know someone good in this area( EEA Family Permit) please let me know.

To Sakura
My brother applied for WHM and he never used it. He applied WHM from Sweden and when he applied for WHM, he just completed his Master degree and he was not working at the time. I am the one who was supporting him. With WHM, you can work for an year to enjoy your next year holidays in UK.

HELP

I am looking for a barrister or Laywer in UK who got experience in EEA family permit issues. please help if you know anyone.

For Lawyers or Barrister in this forum, if you are interested and hope that you can support our case, please let me know.

As I have only 3 weeks left for appeal, I need to find some Lawyer or Barrister immediately, so your help will be much appreciated.

If you have any questions, please dont hesitate to ask. please post your comments, may be that will help us.

Thank you
EEAcitizen

[archigabe]

AFAIK, Australia,Canada and New Zealand seem more open to sponsoring siblings. I am yet to see/hear of any E.U country or U.S allowing this. If anyone knows of a successful case do let us know.

[avjones]

You need a solicitor first - barristers generally don't take cases directly from clients, they are referred cases (briefed) by solicitors.

[eufreemovement]

You need a solicitor first - barristers generally don't take cases directly from clients, they are referred cases (briefed) by solicitors.

Hi Amanda

Do you have any website. I am interested to see, if you have any.

[avjones]

My chambers' website is www.greatjames.co.uk and my details are under my name in the "members" section there.

But, as I say, you can't come to a barrister at the chambers directly.

[eufreemovement]

My chambers' website is www.greatjames.co.uk and my details are under my name in the "members" section there.

But, as I say, you can't come to a barrister at the chambers directly.

Hi

Thanks a lot. It's nice to see the profile.

As you said, we will approach as per mentioned.