EEA(FP) dependent parents appeal dismissed because of Devaseelan

[Sarfraz125]

My parents applied for EEA(FP) as dependent parents of spouse of an EEA national. ECO refused the application on the basis that we did not provide enough means of income showing that we can support our parents. secondly ECO made objection that in previous EEA(FP) dependent parents appeal hearing(when my brother who is also an eea family member was sponsor) it was nothed that we did not provide any evidence how my parents supported themselves from 1999 till 2013 when my brother started helping them.

in previous appeal hearing we were advised by our solicitors that in presence of Pedro and Lim vs ECO we do not have to show previous dependency or how they supported themselves in past. in previous appeal hearing we provided job letter of our brother from Pakistan stating he worked there from 2008-2012 before coming to the UK. but judge ignored that letter and in her findings she mentioned that we did not provide any proof of my brothers's job from Pakistan. My brother also gave witness statement in court that from 2005 till 2012 before coming to UK he provided private computer tutions and helped the family, and after coming to UK and before starting working in UK namely 2013 he helped our parents by spending his savings(we do have proof of his then savings but it was not presented in court). but the Judge dismissed our appeal quoting case law of TK Brundi (which is not an eea case law) that we did not provide the evidences which could have been available, namely job letter and proof of savings etc.

We did not appeal that decision because our brother stopped helping our parents and I started supporting them. so we could not proceed with the appeal.

after that we lodged a fresh application with my sponsorship and ECO refused stating above mentioned reasons. we appealed in decision in FTT and provided all our p60's and salary slips of me and my wife proving that we have enough means of income to support our parents. we also provided new evidences which were not presented in previous appeal hearing e.g grocery receipts, Bank statement of my parents showing payment of bills and money transferred by my wife.letter from family doctor regarding health condition of my parents etc. in oral hearing i took job letters of my father form 1999-2005 with me and informed the judges about the evidences he just asked me that dates when my father worked after his retirement.

Judge dismissed the appeal citing the Devaseelan principles number 37. and on ballance of probabilities he is not satisfied that if our parents could support themselves between 2005 and 2013 then why they could not support themselves now. although we never claimed that they supported themselves after 2005. our permission to appeal in UT application has been dismissed by FTT and now we are preparing to appeal direct in UT. please advise what are our options and also about any error of law commited by Judge. we do not have any legal representation in this case and we are doing this every thing on our own. any help will be highly appreciated thanks

P.S
We do have proof of my brothers Job from Pakistan where he worked from 2008 to 2013, we have proof of his big enough savings from 2012. we do not have any proof of Computer trainings which my brother privately provided in Pakistan. (Private tutions do not have to be regulated in Pakistan.) in light of Pedro and Lim vs ECO is it even relevant to provide these documents?

[secret.simon]

The Tribunal decision of Pedro and Lim vs ECO was appealed by the Home Office to the Court of Appeal. The CoA fine-tuned the decision.

You need to prove that not only did you transfer funds to your parents, but also that they needed it to meet their basic needs (Paragraph 32 of the Court of Appeal's judgment).

Also, for reference, the judgment in Devaseelan (which relates to how second appeals should be handled by the Tribunal).

[Sarfraz125]

We have provided the comprehensive expenditure sheet with relevent receipts proving that theirPension doesn't suffice their essential expenditures. Our current issue is Devaseelan and permission of appeal in UT. In light of my above post I need help of respectable Moderators and members of this group to successfully appeal this decision in UT.

[Sarfraz125]

The Tribunal decision of Pedro and Lim vs ECO was appealed by the Home Office to the Court of Appeal. The CoA fine-tuned the decision.

You need to prove that not only did you transfer funds to your parents, but also that they needed it to meet their basic needs (Paragraph 32 of the Court of Appeal's judgment).

Also, for reference, the judgment in Devaseelan (which relates to how second appeals should be handled by the Tribunal).

Paragraph 38 of Devaseelan guidance states the following.

"38. The second Adjudicator must, however be careful to recognise that the issue before him is not the issue that was before the first Adjudicator. In particular, time has passed; and the situation at the time of the second Adjudicator’s determination may be shown to be different from that which obtained previously. Appellants may want to ask the second Adjudicator to consider arguments on issues that were not – or could not be – raised before the first Adjudicator; or evidence that was not – or could not have been – presented to the first Adjudicator."

In our scenario judge failed to follow these instruction as we presented new evidences.

[Obie]

It will be a material error of law if the Judge seek to refuse an appeal simply on the basis of Devaseelan.

Dependency is very dynamic as opposed to static. It is likely that a person may be dependent today and independent tomorrow and vise versa.

For the Judge to ignore material evidence, is a clear misdirection of law.

[Obie]

I think the lawyer is very confused, it is not Pedro and Lim V ECO that establish that previous dependency outside the UK is not necessary, it is Pedro V SSWP that establishes that. If he relied on that in the appeal, that may well have costed you success.

It is a material misdirection in law, for a Judge to demand and appellant demonstrate historical dependency.

The Court of Appeal has determined that this is wrong.

The issues in Pedro and Lim are far removed from the issues in your case. Best of luck for the future.

[Sarfraz125]

I think the lawyer is very confused, it is not Pedro and Lim V ECO that establish that previous dependency outside the UK is not necessary, it is Pedro V SSWP that establishes that. If he relied on that in the appeal, that may well have costed you success.

It is a material misdirection in law, for a Judge to demand and appellant demonstrate historical dependency.

The Court of Appeal has determined that this is wrong.

The issues in Pedro and Lim are far removed from the issues in your case. Best of luck for the future.

Could you please provide me reference of Case law where CoA determined that requiring to demonstrate historical dependecy is wrong? So that i could give its reference in application of permission in UT? thanks

[secret.simon]

Pedro vs SSWP.

[Obie]

Seen as your lawyer and your team misled the judge in relying on Pedro and Lim, it is likely that the UT will find that even if there was an error of law, you guys were responsible for it.
The Devaseelen though was a totally different kettle of fish.

[Sarfraz125]

Seen as your lawyer and your team misled the judge in relying on Pedro and Lim, it is likely that the UT will find that even if there was an error of law, you guys were responsible for it.
The Devaseelen though was a totally different kettle of fish.

If I could be granted permisson to post pics in this thread then I would like to post FTT decision here so that I could be specifically advised on the matters of error of law. Thanks

[Obie]

You should be able to upload the operative part and remove personal details.

I am not sure moderators are required to give you any particular permission.

[Sarfraz125]

You should be able to upload the operative part and remove personal details.

I am not sure moderators are required to give you any particular permission.

infct I am not able to upload a picture when i press insert image button i got image code on the board and i have to write image URL within that code. for that to work i have to have those images in some open server which I do not.

[Obie]

Unfortunately I am not one of the moderators with Expertise in IT, and I make not secret of that. Perhaps my other colleagues Secret Simon, CROO1 may assist on this.

However there are no restrictions on posting before you can post image.

The other thing you may be able to do is use like google drive. However make sure personal details are redacted.

[Sarfraz125]

[secret.simon]

The reason that the images were not appearing correctly is because the images were hosted in Dropbox. The links for Dropbox images need to be formatted in a particular manner for them to display on third-party sites (like ours) correctly.

[Sarfraz125]

Thanks Secret.simon and obie. I have found following errors of law in this decision.

In paragraph 7 of decision Judge wrongly applied Devaseelan whilst according to devaseelan principles paragraph 38. Devaseelan can not be applied if new evidences and arguments are presented before second adjucator.

In Paragraph 11 of the decision judge failed to fillow the guiadance related to dependency set out in Pedro vs Sswp. By requiring evidences of previous dependency.
....
Please let me know if I am on the right way.