EEA Application: Requirement to Prove Dependency?

[sirlunk]

Hi all,

My wife and I hold Irish passports. We reside and work in England. My parents-in-law are South African citizens living in South Africa. They are broke and are now financially dependent on us as of this month. Both are under the age of 65.

Our intention is to bring our parents to the UK to live with us as soon as possible. We engaged a well known specialist visa agency to obtain EEA family permits for them. The applications were made under European law.

The visa specialist advised us that "under the EEA regulations it is not necessary to provide evidence of previous financial dependency". On further questioning, the visa specialist referred us to section 5.1.2 the European Casework Instructions which states: "For family members, their dependency on the EEA national sponsor does not need to have existed before they came to the UK. This follows from the Court of Appeal judgment in the case of Pedro."

The applications were submitted without any attempt to provide financial dependency. The cover letter that accompanied the applications stated: "It is further submitted that the following Court of Appeal decision in Pedro [2009] EWCA Civ 1358 there is no requirement for the applicant to have been dependent on the EEA family member prior to his arrival in the United Kingom".

Despite this assertion the Entry Clearance Officer rejected the applications on the basis that no proof of (financial) dependency was provided.

The visa specialist remains adamant that we do not need to prove financial dependence for our non-EEA parents and has advised us to appeal on the grounds that the Entry Clearance Officer has failed to follow the correct case law when refusing the application. For an additional fee to the visa specialist, they can lodge an appeal this week.

We have attempted to research the Pedro case, but are confused by the legal jargon and how it does or doesn't apply to our situation.

I'd simply like to know (in terms my simple brain can understand):
1. Is the visa specialist correct in that we do NOT have to prove financial dependence prior to their arrival in the UK? (They are still in SA)
2. If not, why?
3. Should we appeal on the grounds as stated by the visa specialist?

Many thanks for your help!!

Lunk

[Obie]

The entry clearance officer is right to refuse the application for an EEA family permit.

The advice of the visa specialist seems wrong.

Pedro applies if your parents were in the UK and applying for a Residence card in the UK, then on the basis of Pedro, they will not be asked to provide evidence of prior dependency outside the UK.

in this circumstances they require evidence of dependanc y on you or your spouse in order to qualify.

[86ti]

The only question is whether the visa issuing post can require a history of dependence.

[Obie]

The only question is whether the visa issuing post can require a history of dependence.

No the can't request history, but they will need to be satisfied that the applicant is a dependant family member, and that he or she needs the material support of the Union Citizens or their spouse to meet their essential needs at the point of application.

The reason i say so, is because in order for these people to qualify for as a dependant family member in the ascending line, they have to show evidence they are such, at the point of application.

They cannot require a long history of dependancy, as this will be in breach of Pedro and the directive, which does not make such requirement.

If the came in by any other means and apply for Residence Card, then they will only need to show dependency in the UK.

[sirlunk]

First, a big thank you to Obie and 86ti for your replies.

Quick update:

I've managed to convince the visa specialist to seek council on this matter before advising us further. I'm yet to hear back from her.

I also took a poll of several OISC-registered visa specialists. Their opinions, combined with Obie's and my visa specialist's give 26 opinions in total, with the results as follows:

• 17 (65%) stated that proof of dependency is required. I take this to mean evidence of financial dependency.
  4 (15%) stated that proof of dependency is not required.
  5 (19%) were unclear in their reply about the need for financial dependency.

Although most respondents reinforced my interpretation that proof of financial dependency is required, I was still astounded by the varying interpretations of immigration requirements. Some repondents think I have a good case for appeal! I'm struggling to understand why this is so difficult... Surely it should be clear that financial evidence is either required or it's not???

[sirlunk]

I should mention that I also contacted an individual directly involved in the 2009 Pedro case.

I posed the following question: "Do you believe (off the record) that the Pedro case law is applicable when an individual outside of the UK is applying for entry clearance to the UK? Or does it only apply when the individual is already in the UK and applying for a residence card?"

The response I received was that Pedro may well apply to my situation "since the CA accepted that it would prejudice free movement rights if workers' dependents could not move to join them in future, even if dependency arose in home state".

Now I don't actually understand the reply and with hindsight, I didn't word my question very well as I wasn't specific about the need to prove financial dependency.

Obie, are you able to offer any insight into this reply?

Many thanks,
Lunk

[sirlunk]

Obie, I have a question about the following:

No the can't request history, but they will need to be satisfied that the applicant is a dependant family member, and that he or she needs the material support of the Union Citizens or their spouse to meet their essential needs at the point of application.

This point corresponds with what was said by one or two of the respondents to my poll... My understanding of this is that I don't need to provide a history of dependency (i.e. proof of payments to them for x months), but that we must (a) prove that they are dependent on us (by virtue of having no money or other family members to assist them), and (b) prove that we (the children and EEA nationals living and working in England) are willing and able to support them (i.e. we have money).

If I have understood this correctly, it sounds as though I should simply re-apply showing that the family is broke (easy to prove) and that we are willing and able to support them (which we already evidenced in the previous application). We don't need to show a history of dependency (as we'll only start supporting them as of this month).

Do you concur or have I misunderstood?

Thanks again,
Lunk

[Obie]

Simply showing your parents are retired or living alone, whether in the most exceptional circumstance (to use the language of UK Immigration rules) or not, does not prove they are dependent on you or in future will be dependent on you. They may have pension scheme, properties that provide them sufficient income etc. The burden of proof is on the applicant to show they need the material support of the Union Citizen or his/her spouse to meet their essential need.

The status of a dependent family member is characterized by the fact that material support is provided to that family member by the Union Citizen or his/her spouse who has moved to another memberstate to exercise treaty rights, in order for the family member to meet their essential needs in the country they are residing, at the point they apply to join the Union citizen or their spouse.

Pedro only states that the rules that applied to dependent family members under the previous legislation is inapplicable under directive 2004/38EC.
It says nothing to give anyone an indication, that it was suggesting current evidence of dependency is not required for "Dependent" family members , and simply showing there will be prospective dependency will suffice.

Mrs Pedro only succeeded because she was able to show she was dependent on her Portuguese Son in the UK. The court was simply saying there should not be a requirement for Mrs Pedro to show she was dependent in Portugal.

The court has stated in Jia, that mere declaration that someone is dependent or will be dependent, will not be sufficient proof that those people are dependent. Although it went on to state that proof can be adduced by any appropriate means.

[sirlunk]

Again, thank you Obie. Here's what I've understood from your reply:

Simply showing your parents are retired or living alone, whether in the most exceptional circumstance (to use the language of UK Immigration rules) or not, does not prove they are dependent on you or in future will be dependent on you. They may have pension scheme, properties that provide them sufficient income etc. The burden of proof is on the applicant to show they need the material support of the Union Citizen or his/her spouse to meet their essential need.

Understood. We must prove that our parents truly require our support to meet their essential needs. This is perfectly reasonable. We must also prove that we are able to provide the required support (which I can easily do).

Pedro only states that the rules that applied to dependent family members under the previous legislation is inapplicable under directive 2004/38EC. It says nothing to give anyone an indication, that it was suggesting current evidence of dependency is not required for "Dependent" family members , and simply showing there will be prospective dependency will suffice.

Mrs Pedro only succeeded because she was able to show she was dependent on her Portuguese Son in the UK. The court was simply saying there should not be a requirement for Mrs Pedro to show she was dependent in Portugal.

The court has stated in Jia, that mere declaration that someone is dependent or will be dependent, will not be sufficient proof that those people are dependent. Although it went on to state that proof can be adduced by any appropriate means.

Again, understood and perfectly reasonable. We must prove that our parents truly require our support to meet their essential needs at the point of application, not after they arrive in the UK.

The next bit is where I'm still a little uncertain as these two points seem contradictory:

The status of a dependent family member is characterized by the fact that material support is provided to that family member by the Union Citizen or his/her spouse who has moved to another member state to exercise treaty rights, in order for the family member to meet their essential needs in the country they are residing, at the point they apply to join the Union citizen or their spouse.

...they [ECO] can't request history, but they will need to be satisfied that the applicant is a dependant family member, and that he or she needs the material support of the Union Citizens or their spouse to meet their essential needs at the point of application.

My interpretation of the first point is that we must provide evidence of financial support (i.e. historic financial transactions). However, my interpretation of the second point is that they can't request evidence of historic financial transactions and we need only prove that the parents are dependent on us by virtue of them having no money/income/assets and no other relatives who are willing/able to support them.

At this stage, I can only prove the latter as my parents have only just run out of money and I'll make the first payment this month. I'm trying to get the EEA permit before I pay money into South Africa because it's cheaper for me to support them here (under one roof) than have to support two households in different countries.

Thanks again,
Lunk

[86ti]

However, my interpretation of the second point is that they can't request evidence of historic financial transactions and we need only prove that the parents are dependent on us by virtue of them having no money/income/assets and no other relatives who are willing/able to support them.

My understanding is that you only have to show that they receive money from you and not as to why they receive the money from you and nobody else. The argument that there could be other potential persons to support your parents cannot be used.

[Obie]

By stating they can't ask for hisoric dependency, i meant they can't ask that you show evidence of six Months dependency, or evidence of dependency in another country but they can ask for dependency. It is essential that the dependency don't look artificial. Sorry if it looked contradictory.

[Directive/2004/38/EC]

By stating they can't ask for hisoric dependency, i meant they can't ask that you show evidence of six Months dependency, or evidence of dependency in another country but they can ask for dependency. It is essential that the dependency don't look artificial. Sorry if it looked contradictory.

Presumably they can ask for some history of dependence, beyond evidence that the parents are dependent today. If my parents have always been self sufficient, and then starting this month they are suddenly dependent on me, I suspect that would not fly for a visa application done in the same month. It is a little too constructive.