Family Permit > Pre-settled status refused

[am70017]

Hi all,

I would really appreciate some advice from you all. I’m a Dutch national and I sponsored my mother and siblings by applying for family permit. This was luckily granted and they arrived in the UK on 30th of November 2019.

The next step was to gather relevant information proving that they are still dependent on me and also proving that they live in the UK. I have applied for national insurance number, but this really took a lot of time to get it sorted as there was huge queens. Due to this we wasted 5 months (permit only valid for 6 months)

On behalf of my mother and siblings, I have applied the EU pre settlement with an expired family permit. This was back in 18th of March 2020. However, we couldn’t arrange date for biometrics due to covid. All in all we managed to get a date (15/07/2020). After 2 months my sister got a response that her application was successful. Still waiting for my mother’s one. My brother waited 3 months and just got reply that his was refused.

I have supplied same evidence as my sister. However, my brother application was denied. These are the evidence I have supplied:
-Family permit picture
-Letters addressed to him living in my address
-National Insurance Number (letter)
-NHS number (letter)
-Receipts proving that I’m responsible for him (food, clothes, internet, furniture’s etc).

This is his reason for refusal:

“The required evidence of family relationship for a dependent relative of a relevant EEA
citizen, where the dependent relative does not have a documented right of permanent
residence, is a valid registration certificate issued under the EEA Regulations (or by the
Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man) as the dependent relative
of that EEA citizen and evidence which satisfies the Secretary of State that the
relationship continues to subsist. Home Office records do not show that you have been
issued with a registration certificate under the EEA Regulations as a relative of an EEA
national who was a dependant of the EEA national or of their spouse or civil partner, a
member of their household or in strict need of their personal care on serious health
grounds, and you have not provided a relevant document issued on this basis by any of
the Islands.

In order to meet the definition of a dependent relative as set out in Annex 1 of Appendix
EU to the Immigration Rules, you need to demonstrate that you are a relative of your
sponsor as claimed and that you hold a valid relevant document. Until you hold such a document you cannot be granted leave under the EU Settlement Scheme as the dependent relative of a relevant EEA citizen.”

Why was my sister application successful and not his. Regarding dependency, I have already provided sufficient evidence to proof this. However, regarding “relevant document” this something he doesn’t have. What is the best course of action? Reply pre-settlement (free) or administrative review (£80) or applying for residency.

Any help would be greatly appreciated.

Thank you so very much in advance

[Obie]

The decision is wrong, and you should appeal against it.

If he had EEA family permit, then the decision is incorrect.

Put an Admin review and an appeal, but do not pay the appeal fee.

As admin review takes 28 days, you can pay for the appeal if they refused.

[Zerubbabel]

If he had EEA family permit, then the decision is incorrect.

He had an EEA Family Permit but I understand he applied well after the expiration of that permit not during its 6 months validity.

[Obie]

Yes, you have a point.

Thanks for bringing that to my attention..

He will succeed in an appeal under the Withdrawal agreement and not under the rules.

The withdrawal agreement provides a right of continued residence for those whose entry and residence was facilitated by the host state before the end of the transition.

[am70017]

First of all I would like to thank you both for your guidance/advice. I have read multiple post to get better understanding how to proceed. Its just amazing the work that both of you do!!!

@Obie

1. I was afraid that the expiry might be an issue. However, could you please clarify if you still advice to appeal instead of AR?

2. Would you be able to expand on withdrawal agreement? Would this nullify HO argument in terms of having a valid relevant document?

3. I have never appealed before and I have seen Vinny's example in sticky (APPEAL RIGHT FOR EU SETTLEMENT SCHEME APPLICANT). What other supportive document would you advice t present/ or mention laws regulation that would support my claim?

4. Furthermore, would there be any consequences to my sister's status if I mentioned that she was granted pre-settlement by delivering exactly same evidence as my brother? Is this btw a good argument to make? (applications were submitted on same date and same evidence was provided. Family permit also experided on the same date as my brothers).

I would really appreciate your help on how to proceed further. Thank you again!

[Obie]

I will suggest you apply for a Residence Card for him, as you allowed his visa to expire before applying, which is a senseless thing to do.

Maybe you will be able to argue that he is entitled to a Residence card under Regulation 18(1).

The admin review will not get much at all.

Appeal may succeed, not under the rules but maybe under the withdrawal agreement.

[am70017]

Thank you for getting back to me Obie, the reason for late application was due to my solicitors advise to make sure that I gathered sufficient prove like NI which took ages to get it done. Afterwards opening a bank account which could only be done with NIN.

However, that is all in the past. Would it make sense to apply for RC and also EU pre-settlement again? So both would be processed on the same time?

[Zerubbabel]

It's always good to collect evidence in order to lodge a stronger application.

However, this should never go to the extent that you let the Family Permit expire. Worst case scenario, a day or two before the expiry, you apply with the documents you have in hand.

Once the Family Permit expires, your brother is illegal in the UK. He has no status to be there. The Family Permit was a window to apply but he didn't.

Same for your sister. She was somehow lucky and her application went through but that doesn't create a precedent you can leverage for your brother.

Now he was refused, he is still without status in the UK (=illegal).

He may apply for Family Permit again from abroad then apply in time for the Eu Settlement Status. But this is risky.

[Obie]

Upon further reading and consideration of the relevant provision in the rules, I am minded to change my opinion in this case, and will maintain my original view, that the refusal was flawed for the following reasons:

The immigration Rules States:

relevant document
(a)(i)(aa) a family permit, registration certificate, residence card, document certifying permanent residence, permanent residence card or derivative residence card issued by the UK under the EEA Regulations on the basis of an application made under the EEA Regulations before (in the case of a family permit) 1 July 2021 and otherwise before 1 January 2021; or

(iii) a biometric residence card issued by virtue of having been granted limited leave to enter or remain under this Appendix; and
(b) it was not subsequently revoked, or fell to be so, because the relationship or dependency had never existed or the relationship or (where relevant) dependency had ceased; and
(c) (subject to sub-paragraph (d) below) it has not expired or otherwise ceased to be effective, or it remained valid for the period of residence relied upon; and
(d) for the purposes of the reference to ‘relevant document’ in the first sub-paragraph (b) of the entry for ‘dependent relative’ in this table, in sub-paragraph (b) of the entry for ‘durable partner’ in this table and in sub-paragraphs (e) and (f) of the entry for ‘required evidence of family relationship’ in this table, the relevant document may have expired, where:
(i) before it expired, the applicant applied for a further relevant document (as described in sub-paragraph (a)(i)(aa) above) on the basis of the same family relationship as that on which that earlier relevant document was issued; and
(ii) the further relevant document to which sub-paragraph (d)(i) above refers was issued by the date of decision on the application under this Appendix

Having studied the relevant definition, it seem to me, that in light of Ewolu, there is no requirement that the family permit must be valid at the time of application, unlike in the case of a biometric Pre Settled status leave to remain issued under that provision.

It follows that the decision seems flawed. A strong argument can be made, when reference is made to the wording of the other paragraphs, that an EEA family permit is not required to be valid when an application is lodged. It suffices that it was issued Under the EEA regulation before 1 July 2021.


I am therefore of the view that my most recent opinon was wrong, and there is a strong arguable case, that the refusal was not sound.

[am70017]

@Zerubbabel thank you for the clarification. Unfortunately, I was misinformed regarding this issue. Furthermore, I was mostly reassured because my cousin (sponsor for his siblings) went through exactly the same predicament. His sibling's family permit also expired before submitting the application for pre-settlement. However, both were granted status.

@Obie thank you for looking further into it. I agree with your point. Today I called the EU settlement resolution centre and asked if an expired family permit is an issue. The person I spoke to said no that my brother could/is eligible for pre-settlement with an expired family permit. Furthermore, even on their website its stays that you can apply for pre-settlement with an expired family permit: https://www.gov.uk/family-permit/stay-a ... it-expires

The condition is that he is a qualified person and has or is eligble for permanent residence document. Furthermore, it can be argued as Obie said under the Regulation 18(1).

What would be the best course of action? Appeal or just reapply for pre-settlement with supporting documents and above mentioned points by Obie?

[Zerubbabel]

For your brother, did you apply for:

- EEA (EFM) Family Permit:
https://www.gov.uk/family-permit/eea-family-permit

Or

- EU Settlement Scheme family permit
https://www.gov.uk/family-permit/eu-set ... ily-permit

[am70017]

I did not know there were 2 different types of family permit. However, he got it under EEA/SWISS FAMILY MEMBER. So EEA Family permit.

Is this better or worse?

[Obie]

Extended family members are not entitled to an EU Settlement family permit, as far as i am aware.
Therefore it must be an EEA family permit that was applied for under regulation 12(3).

[am70017]

I have tried to get information about application for RC. As in my case, I want to apply for my brother just as a precaution while I also re-apply for Pre-settlement.

However, on the website it states that RC will not be valid after end of this year. So if I would apply now and it would take lets say 4 months of application to be processed. Would he still be granted a RC?? I have called the home office but not really receiving competent answer.

Btw do you know what the email address is of the eu settlement department?

Would appreciate your help

[am70017]

I have recently applied for EFM residence card for my brother.

I was just wondering can he also apply for EU settlement again while the residence card application is still in process? So basically could you have 2 applications submitted at the same time?

Really appreciate if someone could advise me with this.

[Zerubbabel]

I have recently applied for EFM residence card for my brother.

I was just wondering can he also apply for EU settlement again while the residence card application is still in process? So basically could you have 2 applications submitted at the same time?

Really appreciate if someone could advise me with this.

Extended Family members cannot apply directly for EUSS. They need to have an EEA card before.