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Thanks for your response.noajthan wrote:Most unfortunate. And this decision clearly violates EU law on several points.
You are correct, parents in ascending line are direct family members.
They would only be considered extended family members in extremis if they 'somehow' managed not to qualify as direct family members.
I can only imagine the caseworker has tried to 'help you' by treating parents as EFM due to not seeing them as FM - perhaps because of her flawed reasoning (more below).
But having done so she has then failed the application on grounds of not meeting EFM requirements. Doh!
Read the No valid proof of dependency provided section in document I have linked below.
Yes, parents do have to be dependent on you. This dependency may be financial.
Evidence of regular money transfers should be enough.
You can dig into how caseworker should assess and weigh your case in HO's own guidance:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- page 17+
Dependency does not have to be historical for FMs but just 'a matter of fact' in the here and now.
Case law has established you do not have to justify or explain the dependency.
The dependency can be a matter of choice.
The dependent does not have to justify not "getting on his bike" (ie to find or hold down a job)
Interestingly, (but possibly not relevant to you), the dependency does not prevent the dependents from working in the future (should they wish/choose to do so).
The HO's own guidance clearly even covers some of the above points!
Suggest read up on case law of Lim [2013 UKUT 437]:
A non-EEA national with her own house in home country and (as I recall) a 'trust or pension fund' (plus pension) yet still able to demonstrate dependency on her family in a Union state and win the case that bears her name.
Ref https://tribunalsdecisions.service.gov.uk/utiac/39247
Pro Tip: To refute the 'no valid dependency' allegation suggest draw up a budget (xls) of mum and dad (-in-law)'s living expenses, say monthly.
Show all sources of income (including yours - and any other supporters) and all outgoings (including essential needs).
Show your % of their total income.
Show % of essential needs that you provide.
Are in-laws also dependent on any other family members? Anyone who lives with them?
Is anyone else dependent on these parents?
Good luck.
Deadly serious actually.therebel wrote:Thanks for your response.
Could you please elaborate on how has the case worker helped me by classing my parents as EFM and not FM? or is it just a sarcastic comment
Also, creating excel is a good idea and how would they trust that where they can't trust the evidence of our financial support proved through Bank statement!
We are the main support for my parents, but very rarely when things gets tough my other siblings chip in to help. My brother who lives with my parents try to make his own living doing his adhoc projects but only enough to cover his own expenses.
Thanks
Thank you. I will draft something and post to see what you think...noajthan wrote:Deadly serious actually.therebel wrote:Thanks for your response.
Could you please elaborate on how has the case worker helped me by classing my parents as EFM and not FM? or is it just a sarcastic comment
Also, creating excel is a good idea and how would they trust that where they can't trust the evidence of our financial support proved through Bank statement!
We are the main support for my parents, but very rarely when things gets tough my other siblings chip in to help. My brother who lives with my parents try to make his own living doing his adhoc projects but only enough to cover his own expenses.
Thanks
The guidance suggests if an applicant fails in the FM scenario they are then examined as an EFM.
If caseworker followed such guidance (for some reason best known to themselves or some perceived problem with the evidence presented) then that is what may have happened.
You have to show they were wrong to rollover to EFM case because the FM case (clearly) applies.
If they have not done this then its a fundamental flaw in their argument based on a fundamental misunderstanding of the Directive (and the UK's transposed EEA Regulations);
ie an error that you can easily blow out of the water,
All you can do is present supporting evidence that you can back up from as many sources as possible.
Money transfer is not enough alone, it has to be for essential needs. The % of budget is a factor too.
Clearly the fewer supporters and the fewer other revenue streams the in-laws have the better;
it means the numbers will tend to stack up in your favour (without noise or distraction from other sources).
Get World Bank, IMF or UN data on cost of living, and the cost of staples and cost of housing, in region x of country y if you have to.
Your main case is going to be based on:
1) as much as you can use from from Lim
Its rock-solid case law so use it and quote it.
and
2) the fundamental error (readily refuted) that the caseworker has made by focusing on EFM and quoting all the wrong EEA Regulations.
Refute by quoting the correct EEA Regs plus Directive 2004/38/EC and associated Articles.
plus
3) the budget xls & etc
First of all, I strongly disagree with the case worker who assessed my case on the basis of Article 3 of Directive 2004/38/EC referring to me as an “extended family member”, which states:noajthan wrote:Deadly serious actually.therebel wrote:Thanks for your response.
Could you please elaborate on how has the case worker helped me by classing my parents as EFM and not FM? or is it just a sarcastic comment
Also, creating excel is a good idea and how would they trust that where they can't trust the evidence of our financial support proved through Bank statement!
We are the main support for my parents, but very rarely when things gets tough my other siblings chip in to help. My brother who lives with my parents try to make his own living doing his adhoc projects but only enough to cover his own expenses.
Thanks
The guidance suggests if an applicant fails in the FM scenario they are then examined as an EFM.
If caseworker followed such guidance (for some reason best known to themselves or some perceived problem with the evidence presented) then that is what may have happened.
You have to show they were wrong to rollover to EFM case because the FM case (clearly) applies.
If they have not done this then its a fundamental flaw in their argument based on a fundamental misunderstanding of the Directive (and the UK's transposed EEA Regulations);
ie an error that you can easily blow out of the water,
All you can do is present supporting evidence that you can back up from as many sources as possible.
Money transfer is not enough alone, it has to be for essential needs. The % of budget is a factor too.
Clearly the fewer supporters and the fewer other revenue streams the in-laws have the better;
it means the numbers will tend to stack up in your favour (without noise or distraction from other sources).
Get World Bank, IMF or UN data on cost of living, and the cost of staples and cost of housing, in region x of country y if you have to.
Your main case is going to be based on:
1) as much as you can use from from Lim
Its rock-solid case law so use it and quote it.
and
2) the fundamental error (readily refuted) that the caseworker has made by focusing on EFM and quoting all the wrong EEA Regulations.
Refute by quoting the correct EEA Regs plus Directive 2004/38/EC and associated Articles.
plus
3) the budget xls & etc
Hi,noajthan wrote:Seems comprehensive and well-argued.
The references to EAA Regs and case law (Lim) seem sound.
May be worth scanning Jia, Reyes (or other related cases) to see if you can bring in any other titbits of judicial wisdom and pronouncements.
See https://www.freemovement.org.uk/cjeu-de ... n-of-fact/
&
http://europeanlawblog.eu/?p=2329
You could bring out the point that (for FMs) dependency only has to be established as 'a matter of fact' to complement the argument you make about choice/necessity.
Do you have any additional documents to back up the budget xls?
Is there anything you can say about constraints to your ability to exercise free movement by not having in-laws with you?
Concerns or worry or emotional tugs back to home country that your spouse has perhaps? (impact on family cohesion etc)
Yes I did mean that.therebel wrote:Hi,
...
I am trying to think what could be the reasons of constraints to exercise free movement by not having in laws? Also, did you mean concerns/worries/emotional tugs my wife have of my Parents being in my Home country?
Many Thanks
Hi Noajthan, (This is therebel with different account - i lost the details of the first account)noajthan wrote:Yes I did mean that.therebel wrote:Hi,
...
I am trying to think what could be the reasons of constraints to exercise free movement by not having in laws? Also, did you mean concerns/worries/emotional tugs my wife have of my Parents being in my Home country?
Many Thanks
Because free movement is not about chain migration.
Free movement is about having happy, mobile workers living and working as busy, productive economic units within EU member states.
Anything that facilitates that is 'good';
anything that mitigates or works against that ideal is 'bad'.
So anything that upsets your wife upsets you; it stops you (or both of you) being productive and happy in life and work in Europe due to natural family worries in the back of your mind over the wellbeing of aging parents far away.
And that's bad for the overall GDP of Europe plc.
The theme to focus on is all about creating and strengthening family life by having in-laws by your side.
Just wanted to drop a quick note to saynoajthan wrote:Most unfortunate.
Clearly you have to, at very least, address each point.
Refute them using Directive and case law of Lim.
Show without doubt sponsor is a qp.
My analysis and suggestions (made previously) still hold good.
Not sure if you had opportunity to uae them or build on them in some way?