EEA Family Permit refused baselessly, please help

[ls9bg]

Hi My mother-in-law's visa got refused without a reason. After speaking with all solicitors they said that it is harsh refusal because there is no ground for refusal. Now we want to either appeal ot re-apply but are not sure so need help. Please help we have about 10 days left to appeal.
The visa was refused based on financial dependency ans ECO stated the following:
"
“ Financial dependency should be interpreted as meaning that the family member needs the financial support of the EEA national or his or her spouse/ civil partner in order to meet the family member’s essential needs in the country where they are present - not in order to have a certain level of income.
You state that you are a widow and unemployed, you state that you have lived in the same property for 39 years. You have not demonstrate that that your sponsor is responsible for your housing. You state that your son in law arrived in the UK in 07/11/2007 and that he married your daughter on 18/08/2014. I acknowledge that you have submitted evidence of recent funds sent to you by your sponsor. But I note that you were widowed on 01/09/1998, reside in your own property and receive a pension, as well as interest on savings held solely in your name.
You have not provided satisfactory evidence that you are mainly financially dependent on your sponsor
or
that you have been living together as part of the same household.
Birth certificate???
I am not satisfied that you are dependent on your sponsor
or
that you are a family member in accordance with Regulation 7 of the immigration (EEA) Regulations 2006.
Why???
I therefore refuse your EEA Family Permit application.
"
We do not understand why because we have been sending her money since august and her pension is 3 % of her monthly expenses which we did show. We also submitted proof of remittances.

[noajthan]

Hi My mother-in-law's visa got refused without a reason. After speaking with all solicitors they said that it is harsh refusal because there is no ground for refusal. Now we want to either appeal ot re-apply but are not sure so need help. Please help we have about 10 days left to appeal.
The visa was refused based on financial dependency ans ECO stated the following:
"
...

We do not understand why because we have been sending her money since august and her pension is 3 % of her monthly expenses which we did show. We also submitted proof of remittances.

It's ofcourse most unfortunate and upsetting but it may not be 'baseless' - and HO certainly do play hard ball in such cases.

What is nationality of mom?
Who is the EEA national sponsor (you or spouse)?

You state that mom's pension represents approx just 3% of her income and you have supported her since August, so that's only 8 or 9 months.

HO is looking at these kind of facts and clearly asking how mom has possibly survived since 1998.
HO don't recognise that you help with housing.

Simply sending a bit of money for a while is not enough - you have to meet the requirements of the Regulations
You mentioned birth certificate but a bc doesn't demonstrate or prove membership of anyone's household.

Have you gone through & understood the requirements or have you just gone direct to the HO website and applied for a FP online?

Where did mom get 97% of her finances from before you started supporting her?

Do you provide for mom's essential daily needs (food, shelter etc)?
What percentage of such needs?
How have you shown that?

Does anyone else support her?
What do they do?

Have you all lived in same household somewhere with the EEA sponsor as head of that household?
Does anyone live with mom (or does she live with anyone)?

There may be case law that can help.

You can dig into these matters and get into the head of caseworker weighing up and assessing your case in HO guidance here:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf

See also:
https://www.gov.uk/government/publicati ... rmit-eun02

[ls9bg]

Thanks Noajthan for replying. Please see the answers to your questions below. The reason why I am doubtful about the appeal or re-application, despite the confidence in the case law in our favor, is that solvit discouraged us by saying that there are many flaws in our foundation and also the doubt of being outdated. So it is best to take a third or fourth opinion.

Answers:

What is nationality of mom?
India

Who is the EEA national sponsor (you or spouse)?
We sponsor jointly, me as the EEA national and my wife as the spouse of the EEA National.

You state that mom's pension represents approx just 3% of her income and you have supported her since August, so that's only 8 or 9 months.
HO is looking at these kind of facts and clearly asking how mom has possibly survived since 1998.
HO don't recognise that you help with housing.
My wife’s brothers gave statutory declarations stating that they were supporting her until 2014 but because of obligations to their own family and financial difficulties they can not support her anymore. My wife sent money to her mother through her brother in 2014 in excess of 2000 pounds. Then from August 2015 the money was being sent directly
Regarding housing, my mother gave a statutory declaration that she has inherited part of the house after the death of her husband, together with all her children so she has quarter of the 4 shares of the property.She is not in a position to liquidize it.
We had read into this and found that according to the directive financial dependency does not have to be existed before and it does not have to be full. It can be partial dependency as long as the applicant can not meet essential needs without the help of the EEA National.
Please see this case: https://tribunalsdecisions.service.gov.uk/utiac/39247

Simply sending a bit of money for a while is not enough - you have to meet the requirements of the Regulations
According to the requirement financial remittance is the fact of financial dependency and nothing else matters. The reasons why she is dependent on us do not matter. Please see case:
the case of Jia [2007] EUECJ C-1/05

You mentioned birth certificate but a bc doesn't demonstrate or prove membership of anyone's household.
According to the caseworkers guidance to prove the relationship, birth certificate is enough and my wife is her daughter who lived with her at the same address until she came to the UK in 2007.

Have you gone through & understood the requirements or have you just gone direct to the HO website and applied for a FP online?
We hired a solicitor for this job and read a lot into the requirements. We found we were eligible only then we started applying. I must say though that the solicitor was more a businessman than being helpful. He dragged the application a lot and we ended up doing everything ourselves.

Where did mom get 97% of her finances from before you started supporting her?
She was being supported by the elder son and then the younger son but because of financial difficulties and personal problems with their wives they stopped supporting her in 2014.

Do you provide for mom's essential daily needs (food, shelter etc)?
Mum does not need help with housing because she is staying in a inherited house (shared inheritance), she needs help with utility bills, food, medicine and all other basic needs. We can only show that we send her the money and she uses it for her needs, we can directly buy things for her. There were no billd for food.

What percentage of such needs?
97%

How have you shown that?
We provided her utility bills, pension statements, medicine bills. Statutory declaration by mum stating that she has inherited the house after the death of the husband. Bank statements confirming money transfer to her. Statements by us that she is mainly financially dependent on us. Statements by sons that they do not support her anymore and can not in future.

Does anyone else support her?
No one else supports her apart from the £4 pension that she gets every month where her expenses are about £140 a month. She also has no savings but the ECO stated you have savings in your own name.

What do they do?
N/A but the sons who supported her before our support have shops.
Have you all lived in same household somewhere with the EEA sponsor as head of that household?
Does anyone live with mom (or does she live with anyone)?

Mum lives alone, she has never lived with EEA national but she has lived with the daughter(EEA Spouse) until 2007 at the same address where she is living now.

There may be case law that can help.
Tha cases of Jia, Pedro, Metock, Lim
https://tribunalsdecisions.service.gov.uk/utiac/39247
http://www.cpag.org.uk/content/court-ap ... ascendancy
According the case laws that we read:
Dependency can be voluntary
Dependency can be current
Dependency is a matter of financial remittances
Dependency does not have to be full or even main , it can be partial.
“As a result of Pedro, the position of dependent relatives in the ascending line (and presumably for dependent relatives in the descending line as the wording in the Directive is the same) is that they simply have to show dependency as a matter of fact. The ECJ case law the status of dependent family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national or the spouse who has exercised free movement rights. The status of dependence does not presuppose the existence of a right of maintenance and the status is not lost if the family member claims and receives benefit.”

[noajthan]

I'm familiar (as a lay person) in the case law of Jia, Reyes, Pedro & co.

Pedro probably won't help - that case related to an EEA national (parent) already in UK.

Your hurdle is the UK FP 'visa'-type regulations to get mom into UK in first place.

The other element to bear in mind is these rights don't exist for dependent's benefit.
Its to facilitate EEA nationals to exercise treaty rights in memberstate without being constrained by family concerns.

It appears HO takes view (possibly wrongly) that you can achieve this by remote support;
especially as emotional support & membership of household doesn't seem much of a factor in your case.

I understand a bc proves relationship; it doesn't show membership of household which HO may have been looking for.

The fact mom's house is paid for doesn't really help as you can't demonstrate provision of housing.

The case would be much stronger if current in UK.
And historical dependency at least back to 2014 could only help but as funds went to a brother (instead of directly) it may be hard to prove.

At the end of day it will depend in quality of documentary supporting evidence. Less weight may be given to letters and personal statements. My understanding is its all about essential needs and the proportion of these you provide.

If you can't overcome this hurdle you may have to contemplate Surinder Singh.

[vinny]

If you can't overcome this hurdle you may have to contemplate Surinder Singh.

Is it applicable?

[ls9bg]

I do not think Surinder Singh applies as it states
"You may be able to apply for an EEA family permit as a family member of a British citizen who has worked in another EEA country. This is known as the ‘Surinder Singh’ route."

The Surinder Singh route is a method for British citizens to secure UK immigration rights for their non-European spouses, who are unable to join their partners because of several changes in UK immigration law aimed at reducing net migration. "

None of us is a British Citizen.

[ls9bg]

In terms of emotional dependency , EEA law does not care about that and looks only at financial dependency.

“As a result of Pedro, the position of dependent relatives in the ascending line (and presumably for dependent relatives in the descending line as the wording in the Directive is the same) is that they simply have to show dependency as a matter of fact. The ECJ case law the status of dependent family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national or the spouse who has exercised free movement rights. The status of dependence does not presuppose the existence of a right of maintenance and the status is not lost if the family member claims and receives benefit.”

In case of Lim the judge recalls
“As Lebon made clear, whether someone has the status of a dependant family member is a question of fact. Such a status is characterised by the material support for that family member provided by the Union national who has exercised his free right of movement. Why the family member is dependent does not matter.”
His judgement
"“25. The references relate to economic activity and the Tribunal concluded that the dependency need not be one of necessity. In his skeleton argument Mr Sowerby said that the question to be answered was whether or not the appellant supported herself, not whether the appellant was in a position to support herself. The appellant has said that the funds in the savings fund are not equivalent to a state pension but are a lump sum by way of a bond from which she can take money if she wishes to do so. She has chosen not to do so. I find that there is no obligation on her to do so and nor is there an obligation upon her to sell her home in order to provide money to live on. Taking steps to cash in on the bond and to sell her home I find would be economic activity that she is not required to undertake. I find that she is as a matter of fact dependent financially upon her daughter and son-in-law and she does not have to undertake economic activity in order to cease to be their dependent.

First, the jurisprudence of the Court of Justice clearly emphasises that assessment of dependency must take into account the personal situation of the applicant, which might be thought to entail that dependency cannot simply be deduced from the mere fact of receipt of financial support by an EEA national or spouse. This aspect of the jurisprudence might be said to be reinforced by the formulation given by the Court of Justice in Jia when it says (in the context of predecessor EU legislation, Directive 73/148) that dependency “… must be interpreted as meaning that proof of the need for material support” is required: see [37], [43] and [44(2)] (emphasis added)."

[noajthan]

I do not think Surinder Singh applies as it states
"You may be able to apply for an EEA family permit as a family member of a British citizen who has worked in another EEA country. This is known as the ‘Surinder Singh’ route."

The Surinder Singh route is a method for British citizens to secure UK immigration rights for their non-European spouses, who are unable to join their partners because of several changes in UK immigration law aimed at reducing net migration. "

None of us is a British Citizen.

My mistake if neither of you are British.

As an EEA national then, you could ofcourse exercise rights in a.n.other EEA/EU country, together with mother, if entry is found to be more straightforward to another member state. Eg by Schengen visa.

Despite you having an EU home country (ie some connection to another part of the Union), I recognise it may be impractical to traipse around Europe if you are embedded or tied to UK for some reason.

[noajthan]

In terms of emotional dependency , EEA law does not care about that and looks only at financial dependency.

“As a result of Pedro, the position of dependent relatives in the ascending line (and presumably for dependent relatives in the descending line as the wording in the Directive is the same) is that they simply have to show dependency as a matter of fact. The ECJ case law the status of dependent family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national or the spouse who has exercised free movement rights. The status of dependence does not presuppose the existence of a right of maintenance and the status is not lost if the family member claims and receives benefit.”

In case of Lim the judge recalls
“As Lebon made clear, whether someone has the status of a dependant family member is a question of fact. Such a status is characterised by the material support for that family member provided by the Union national who has exercised his free right of movement. Why the family member is dependent does not matter.”

..."

Emotional dependency, rock solid proof of a family member living in a aponsor's household etc could only help. That's why I mentioned it.
And EU law does take account of emotional dependency, (eg for EFMs; I'm aware mom is a FM).

After all, (playing Devil's advocate or looking at it from a dispassionate caseworker's point of view and assuming your documentary supporting evidence was comprehensive and top-notch), all you have proved so far is that mom can survive perfectly well back home in India;
ie on the basis of funds you have been transferring for approximately up to 2 years.
furthermore, no family (EEA national or spouse) has had to curtail their residency in EU country &/or exercise of treaty rights so far.

Yes, those cases, as quoted, are all a given and taken as read.

Pedro however was an EEA national (Portugese or Spanish I think) who had the luxury of being in UK already.
In my estimation, Lim may be your best bet.

The point is the caseworkers must be as familiar with all these cases if not more well-versed in them than we mere lay people.
After all, HO even publishes some of them in their own internal guidance.

Ref: https://www.gov.uk/government/uploads/s ... w_v2_0.pdf

And even so they haven't exactly bent over backwards to recognise this and oblige your mom with a FP.

It is well-known that in EU matters the UK takes its own line and dances to its own tune; one that is not necessarily compliant with the letter and spirit of the arguably cleaner and purer EU law.

Furthermore, if law case decisions are in 'unreported' state it appears that UK reserves the right to discount the findings and rulings of such cases. (As a lay person I don't understand this aspect fully but I have observed it during research).

All you can do is have your day in court (or, as a longshot, cast around for another EU country).

[ls9bg]

I agree with you that emotional dependency is vital. We even showed it to the HO in ap by showing regular contact and recent visit of 2 months in India. We showed that mum needs care because of diabetes with insulin and regular infections. We showed evidence of phone and Internet calls along with Skype photos. But this was disregarded of-course by a dispassionate case worker as you call it and SOLVIT suggested that they do not care about emotional dependency. The dependency is genuine, there is not a single document that we could have given but did not give to support the ap except may be a table of expenditure and income. In comparison with the Lim case the mother was in much better economic position than my mum is but as you it is up to home office to recognise or ignore what we have provided to adduce the facts.
We do appreciate we have to look at it from all possible angles , -ve or +ve because
before going to the court we should know what we have at hand. Once we present our appeal bundle with references to the unreported cases or Lim's, then we might have a chance of ECM recognising how the law applies to mum to facilitate the family re-Union or we might not but at least we will fight for justice. We'll definitely appeal. A little side tracked, can we apply again during the appeal or do we have to wait for the result of the appeal?

[noajthan]

...

The dependency is genuine, there is not a single document that we could have given but did not give to support the ap except may be a table of expenditure and income. In comparison with the Lim case the mother was in much better economic position than my mum is but as you it is up to home office to recognise or ignore what we have provided to adduce the facts.
...

From Lim, this point seems critical:

20. There are a number of considerations that might appear to support the ECO’s position that the remittances sent to the claimant demonstrate that she was not dependent.

a. First, the jurisprudence of the Court of Justice clearly emphasises that assessment of dependency must take into account the personal situation of the applicant, which might be thought to entail that dependency cannot simply be deduced from the mere fact of receipt of financial support by an EEA national or spouse.

This aspect of the jurisprudence might be said to be reinforced by the formulation given by the Court of Justice in Jia when it says (in the context of predecessor EU legislation, Directive 73/148) that dependency “… must be interpreted as meaning that proof of the need for material support” is required

Suggest you work on that spreasheet.

And in your favour (I think) is the fact that the Lim ruling is/was 'reported'.

Regarding tactics on appeals I have no knowledge on such matters. (Have only faced one immigration appeal in my life and HO threw in the towel a few days before the day).

[ls9bg]

20. There are a number of considerations that might appear to support the ECO’s position that the remittances sent to the claimant demonstrate that she was not dependent.

a. First, the jurisprudence of the Court of Justice clearly emphasises that assessment of dependency must take into account the personal situation of the applicant, which might be thought to entail that dependency cannot simply be deduced from the mere fact of receipt of financial support by an EEA national or spouse.

This aspect of the jurisprudence might be said to be reinforced by the formulation given by the Court of Justice in Jia when it says (in the context of predecessor EU legislation, Directive 73/148) that dependency “… must be interpreted as meaning that proof of the need for material support” is required

Thanks for that, printed the spreasheet and the rest to go with the bundle.
Made references to all articles and everything made perfect sense. I will get a friend to review or proof read the appeal and then all set to go. Despite that I know that in tribunal somethings might appear that may not be apparent now but we will cross that bridge when it comes to that.

[ls9bg]

So finally I went to appeal hearing on the 17th July. We took a barrister with us who advised that only documents submitted at the time of application matter but the judge dismissed the appeal saying that dependency is contrived. The judge based her decision on probabilties. I want to appeal to upper tribunal but would like advise how we can request this from the 1st tier tribunal and from which legal stand point. The circumstances made my mother in law financially dependent on us at the same time around our marriage in 2014 though we had known each other since 2013 so the judge concluded that the dependency is contrived.
I can copy in the judgement which is in pdf. There is a lot of content. Please advise ASAP because we have to submit the request within 28 days.

[Obie]

So finally I went to appeal hearing on the 17th July. We took a barrister with us who advised that only documents submitted at the time of application matter but the judge dismissed the appeal saying that dependency is contrived. The judge based her decision on probabilties. I want to appeal to upper tribunal but would like advise how we can request this from the 1st tier tribunal and from which legal stand point. The circumstances made my mother in law financially dependent on us at the same time around our marriage in 2014 though we had known each other since 2013 so the judge concluded that the dependency is contrived.
I can copy in the judgement which is in pdf. There is a lot of content. Please advise ASAP because we have to submit the request within 28 days.

how can judge say that. Furthermore in EU law new evidence can be provided. It is an error of law for a judge to say otherwise

[ls9bg]

Thanks for replying Obie. Here is what the Judge said:
The Jude added a chronology of the historical events although in EEA dependency only recent financial dependency matters and the past and the reasons do not matter.
Findings and facts:
I find that the appelant is a widow living in India in her own property. There is no evidence that her husband died intestate. I find that she has not shown on the balance of probablities that she has no assets in India.The appelant's husband was a Jewellery shop proprietor and the two sons are now in jewellery business. I fins on the balance of probablities that the appelant has assets in India which she has not reffered to in her application form and that it is reasonable expectation that she will be assisted by her sons who have taken over the business.
I do not accept that she is in poor relaitonship with her sons as claimed. her telephone call logs show calls to another number which I find on the balance of probabiloties to be of a close family member( This is incorrect because she understood my wife's number to be of my mother in law). I find on the balance of probablities that around the time of application her daughter married the EEA national that she became necessity dependant upon the daughter. I find on probablities that there is support available in India from her sons and from other assets and that her claimed dependency upon her daughter is one of choice and not from necessity ( Please read LIM case as the dependency of choice was allowed by the judge, not to say that it is a matter of choice for my mother in law) and that the dependency is contrived to take advantage of the eea route and to circumvante regular immigration rules. My reasons for finding this is that whilst the daughter claimed that there has been a family breach between herself and the brothers as the bothers were not supporting the mother as they should, she sent money out to brother in 2014. this action is incosistent with the claimed breach. Further no regualr remittances were sent until the marriage with the EEA NAtional. This is despite dauhgter claiming to earn large amounts. The timing od the dependency and the remittances are as such that I find it to be contrived.

I find that there is no documentary evidence provided to support the claimed dependancy in 2017. No up to date bank statements, contacts or objective evidence of a large income as claimed has been provided. I do not accept that oral evidence of the daughter unsupported by any documents shows on the balance of probablities that either financial or emotional dependency exists. I fins tha tthe daughter's evidence exagerrates a rift in the family and the affidavits by sons are self serving and one son has not provided any evidence of recent income.
For these reasons I fins that the appelant has not shown that the at the date of the hearing (is this important?) she is dependant upon the eea family. I find dauhgter's claims to be self serving and I can not rely upon them.It is for the appelant to show dependency as a matter of fact at the date of hearing and she has not done this. I accept that the funds were sent out in 2016 but I find them as such that they were to facilitiate an application via the eea regulation and was contrived."

These are the reasons judge gave but I find that these are all based on probablities and not real evidence. As I have said before the dependency could have happened at anytime because of the circumstances and the judge is speculating that my mother in law has undeclared assets.

I am not sure how to convince the judge that this is all real and not contrived. Also if i read the law it says reasons to not matter only financial remittances are the fact of dependency but I wonder why the judge has not paid attention to that part of the law. Am I wrong in my judgement? Please advise.

[Obie]

It is over 2 weeks since your decision and appeal has to be filed within 14 days. So I am not sure whatever I say will make a difference.

[ls9bg]

Hi Obie

Of course it will make a difference because the permission to request to for appeal to the upper tribunal has to be filed within 28 days for overseas appellants. We are sending the request to the tribunal by e-mail because we are abroad. Sorry I have been late in replying because I am on holiday with family abroad and lost details of the login.
Would really appreciate your comments for they will help.

[ls9bg]

Here is the decision