Dependent family members and their rights in the UK.

[mcovet]

Another situation popped up. An EEA national and her husband have had the non-EEA's parents in the UK for 3 years living with them. Now their financial situation is suffering due to the economic crisis.

The non-EEA parents want to move out and start claiming Housing Benefit to live separately. The question is, technically they ARE allowed to do that as they satisfy all the relevant tests (additionally, the EEA national has PR and so they are living in the UK under Regulation 14(2).

The problem with the interpretation I have is the following. They are family members of an EEA national on the basis of being parents + having been dependent in their country of origin (and now in the UK). From what I understand this condition must be satisfied every day of the year (until they acquire PR) for them to be regarded as family members, since dependency is one of two main parts for them to qualify.

However, confusingly, the EEA residence card allows for the business activities and so, should they take up employment and earn their own living, they would cease to be dependent and hence would lose the right to live in the UK (from my understanding). Equally, family members are allowed access to the same benefits as the Brits have, so, what if local council turn around and say that you cannot claim benefits, you must always be dependent on the EEA family member? That would be correct in my view wouldn't it?

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Question no.2 relates to the same issue, for the parents to obtain PR status, must they be dependent on the children (EEA) for the full 5 years? It seems ridiculous that:
a) the Residence Card allows for business activities but should they start those "business activities" they would no longer be dependent?;
b) If they must remain dependent to qualify, the society is losing additional two people who could work and pay taxes rather than feeding off their children.

Finally, maybe they could qualify if they lived in the same household in the UK and so would be using the "extended family member" route rather than the "dependent" parents route?

Sorry if I confused anyone or if I laid the info out that way, it is a bit technical and when facing a real life situation, difficult to apply.

[Directive/2004/38/EC]

These are good questions. Have you looked through some of the UKBA reference material linked to from http://eumovement.wordpress.com/eu-coun ... d-kingdom/ ?

[Obie]

On the basis of Lebon and pedro, the UKBA will be wrong to refuse people in the scenerio you mentioned above right of residence and the social security service will also be wrong to refuse benefit.

[mcovet]

These are good questions. Have you looked through some of the UKBA reference material linked to from http://eumovement.wordpress.com/eu-coun ... d-kingdom/ ?

thanks for the link but it only contains general info and doesn't answer my question.

This is one of many grey areas of EU law where the outcome of any case at hand depends on the particular caseworker processing it...seen it so many times, logic dictates that dependent family members couldn't/shouldn't also become a burden on the state, but then the EEA national could still indirectly claim different allowances/benefits taking into account the "dependent" family member. And in all honesty, I would be gobsmacked if the local council get into so much detail to find out the complexities of the EU law. They would probably just look at the parents' residence cards, then ask for the confirmation that the EEA national is still in the UK and exercising treaty rights/is a permanent resident and then they'd grant the benefit!

But my above two questions still stand and I would love to have a debate/answer on it.

[mcovet]

On the basis of Lebon and pedro, the UKBA will be wrong to refuse people in the scenerio you mentioned above right of residence and the social security service will also be wrong to refuse benefit.

that's good cases (I am in the process of reading pedro) and paragraph 37 seems to slightly define the bizarre situation
"37. In order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national."


and
""In order to determine whether family members are dependent, it must be assessed in the individual case whether having regard to their financial and social conditions, they need material support to meet their essential needs in their country of origin or the country from which they came at the time when they applied to join the EU citizen (i.e. not in the host Member State where the EU citizen resides). "

But the problem is (and as paragraph 67 puts it, that you can have dependency arise in the host member state- i.e. UK) the Pedro case doesn't say anything about parents ceasing to be dependent, it only suggests the different ways of the dependency arising. So, the situation is still unclear on what happens when dependency ceases?


It'd be interesting to see if the caseworker would issue PR overlooking the dependency requirement simply on the basis of 5 years' residence (and exercise of treaty rights by the EEA national daughter in law). I highly doubt it and this case then could help prove that the dependency is assessed only once at the stage of applying to join/accompany.

P.S. How on earth do you find those cases? Do you search certain terms on the Baili website and if you could provide the research trail for the particular cases above maybe people could learn a thing or two from you.

[Obie]

mcovet, both case laws deals with your question.

Miss Lebon claimed the minimex in Belgium, where her french father had worked, it was suggested that she should loose that status as it could be argued she was dependant on the state, the court rejected that argument, saying this will preclude people who are rightly entitled to it from claiming it, and that the status of Dependant family member should be assessed without regards to whether or not they are in receipt of benefit.

Mrs Pedro was also a pension credit case, and the right of residence if i recall correctly. Both of this deals with the issues under debate.

It was stated in the case of MR,( The cases of OFM referred to ECJ) that dependent family members only need to should continued biological or emotional connection, whiles dependent OFM have to demonstrate dependency for the duration of the 5 years. This is one of the questions waiting to be answered.

Therefore as things stands, HO policy is not to require financial dependency from dependent family member for 5 years but it is their policy for OFM to meet these criteria.

Furthermore, both OFM and family members could also qualify, as you correctly pointed out, if they can show they were part of the Union Citizens household during the relevant period. I don't think this will be particularly difficult to do .

[mcovet]

thanks for the response, are you referring to OFM (other family members) to include parents as well or extended family members? If you refer to family members having only biological/emotional dependence and parents in the ascending line fall under that, could you kindly provide an excerpt from the UKBA guidance or any case law which confirms your statement that they wouldn't require proof of dependency for 5 years for the parents?

I doubt I ever heard of it, from what I know, if those same parents were to apply again for new RC just to transfer them to new passports (for instance) the caseworker would request proof of dependency as it's one of the requirements for parents! And it explicitly asks for this in their guidance, it doesn't say anywhere that once the parents get their residence confirmed initially, then they only have to satisfy the residence requirements ignoring dependency...

Hope you can find an answer to the above.

P.S. to show they are part of household, they'd need to live together and this may not always be possible, as you'd know. And can you get the citation for the MR case you refer to above? Finally, I am yet to find a case where the dependency DISAPPEARS after the arrival of the parent/other family member... as is usual with coming to the UK and having more chances of finding employment/starting a business.

[Obie]

41. There is a further problem in the case of able bodied adults admitted as dependants who are then free to work under national law, as these appellants were. Do they have to remain dependant throughout the period of the first residence permit to obtain an extension of stay and or permanent residence? Is enforced dependency required? If so could they be required to leave if they become independent in the host state and possibly resume dependency in their country of origin. These are not problems encountered by family members where it seems that it is normally the biological or social relationship that must continue.