Can my father be dependent of my EEA spouse?

[BClassBritish]

Hi All,

I have been reading these boards for quite a while and they have been super helpful at times of need in the past as I just managed to search most of my issues without even registering

I have a specific question this time around though. Any help would be much appreciated.

I am a naturalized British citizen of Sub continent origins. My father who is a widower is dependent on me financially and emotionally as I am his only child. He has been visiting me on a visit visa for last 7 years or so. Never overstayed or anything. Last time when he came over to visit me about 1.5 years ago he fell very ill to a point where it became a life and death situation. I have so far managed to get all his health care done privately. So about a year ago I applied through a lawyer for a discretionary leave for my father to be able to stay with me long term. Home Office obviously rejected it and we are going to first tier tribunal next year May. From the looks of it the system is rigged and there is very little chance of getting a visa for him.

I got married to a French girl last month after a 4 year long relationship.

My question is that can I apply for my father to be dependent of my EEA spouse even though I am a British citizen myself?
My fathers passport is still with the Home Office and he is still living in the UK waiting for a decision on his discretionary leave application.


This is what the Uk gov website says:

"Qualifying as a family member

You must be the EEA citizen’s spouse or civil partner, or related to them (or their spouse or civil partner) as their:

child or grandchild under 21 years old, or dependent child or grandchild of any age
dependent parent or grandparent"

Thank you very much

[vinny]

Interesting question. Is your EEA spouse exercising treaty rights?

[BClassBritish]

If by treaty rights you mean work then my spouse has been working in the UK for the past 8 years constantly so therefore is actually eligible for Indefinite leave as well.

[secret.simon]

What proof of dependency of your father on his French daughter-in-law do you have?

[vinny]

Couldn't father be dependent on son, under

(c)dependent direct relatives in his ascending line or that of his spouse or his civil partner;

?

[CR001]

If by treaty rights you mean work then my spouse has been working in the UK for the past 8 years constantly so therefore is actually eligible for Indefinite leave as well.

EU citizens can't apply for Indefinite Leave to Remain as they are not on the UK immigration route.

EU citizens attain permanent residence automatically after 5 years of being a qualified person.

[noajthan]

What proof of dependency of your father on his French daughter-in-law do you have?

This is the key question as OP is out of the frame as British and only married a Union citizen last month.
EEA Regulations only potentially kick in since OP's marriage as father in law was not related to daughter in law before that time.

If Union citizen only came into picture last month (by marriage) then previous history of father's dependency on son is immaterial.

What evidence is there that father in law is financially dependent on daughter in law (since last month)?
The dependency needs to be as matter of fact not as matter of choice nor of history. As per Pedro (case law).

Note if a RC application is filed but fails any future UK visa applications, eg visit visa, would be unlikely to be granted (as an intention to settle would have been declared by virtue of the RC application).
And HO plays hard ball with such dependency applications, several recent cases of initial failure (and subsequent battles with HO) have been reported in forum.

[BClassBritish]

Please correct me if I am wrong here but I am reading the rules as: even if my father is my(spouse of EEA citizen) dependent then he is eligible to apply for dependent card.

"Qualifying as a family member

You must be the EEA citizen’s spouse or civil partner, or related to them (or their spouse or civil partner) as their:

child or grandchild under 21 years old, or dependent child or grandchild of any age
dependent parent or grandparent"

[noajthan]

Please correct me if I am wrong here but I am reading the rules as: even if my father is my(spouse of EEA citizen) dependent then he is eligible to apply for dependent card.

"Qualifying as a family member

You must be the EEA citizen’s spouse or civil partner, or related to them (or their spouse or civil partner) as their:

child or grandchild under 21 years old, or dependent child or grandchild of any age
dependent parent or grandparent"

As you are British you are not the EEA citizen/sponsor in this scenario.
Even before Brexit Brits (even dual nationals and even those European born and bred) are not recognised as EEA nationals in this context.
So its all about your wife.

A fundamental test for a parent (or parent in law) in ascending line to be considered as a direct family member (under EEA Regs) is financial dependency for essential daily needs.

Its not a case of 'even if'', its a mandatory non-negotiable prerequisite. Unimpeachable proof required.

You can dig into such vital questions in HO guidance here:
https://www.gov.uk/government/uploads/s ... s_v3_0.pdf
- page 17+

[BClassBritish]

Hi noajthan,

Thanks for the link. I found detail of Article-7 here http://www.legislation.gov.uk/uksi/2006 ... ion/7/made

It doesnt mention anything about disqualification if you are British.

"the following persons shall be treated as the family members of another person—

(a)his spouse or his civil partner;

(b)direct descendants of his, his spouse or his civil partner who are—

(i)under 21; or

(ii)dependants of his, his spouse or his civil partner;

(c)dependent direct relatives in his ascending line or that of his spouse or his civil partner;"

[noajthan]

Hi noajthan,

Thanks for the link. I found detail of Article-7 here http://www.legislation.gov.uk/uksi/2006 ... ion/7/made

It doesnt mention anything about disqualification if you are British.

"the following persons shall be treated as the family members of another person—

(a)his spouse or his civil partner;

(b)direct descendants of his, his spouse or his civil partner who are—

(i)under 21; or

(ii)dependants of his, his spouse or his civil partner;

(c)dependent direct relatives in his ascending line or that of his spouse or his civil partner;"

Para 7 depends on Para 2 which includes:

“EEA national” means a national of an EEA State;
“EEA State” means—
(a) a member State, other than the United Kingdom;

My understanding is that in Para 7 'person' is an EEA national.
BCs in UK cannot be considered EEA nationals and cannot (normally) exercise treaty rights in home country..
So spouse is only potential F-I-L sponsor here so that EU rights kick in.

Your question is Can my father be dependent of my EEA spouse?
Answer: Possibly. You need evidence F-I-L is financially dependent on D-I-L for daily needs (as per linked guidance document, above).

As intimated, Pedro is your friend.

Where dependency is necessary, the family member does not need to be living or have lived in an EEA state where the EEA national sponsor also lives or has lived. 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 Pedro case ...

[BClassBritish]

My understanding is that in Para 7 'person' is an EEA national(my wife)

You are missing the key bit here: or his or her spouse(Me)

[noajthan]

My understanding is that in Para 7 'person' is an EEA national(my wife)

You are missing the key bit here: or his or her spouse(Me)

Yes it is the wife that matters (only the wife) - as stated since my first response.
You are British in own country so can't enjoy EU rights.

EEA Regulations only potentially kick in since OP's marriage as father in law was not related to daughter in law before that time.

What evidence is there that father in law is financially dependent on daughter in law (since last month)?

Domestic UK ADR is not going to fly.
Wife as sponsor appears to be only hope here.
So have you assembled evidence FIL is dependent on DIL (EEA national/your wife/the sponsor)?

[BClassBritish]

Okay thanks a lot for clarifying this.

'So have you assembled evidence FIL is dependent on DIL (EEA national/your wife/the sponsor)?'

What sort of evidence do I need? and how long for?

My wife does care for my dad on a daily basis as we have cohabitation but she has never made a money transfer to his account or anything.

Many Thanks,

[noajthan]

Okay thanks a lot for clarifying this.

'So have you assembled evidence FIL is dependent on DIL (EEA national/your wife/the sponsor)?'

What sort of evidence do I need? and how long for?

My wife does care for my dad on a daily basis as we have cohabitation but she has never made a money transfer to his account or anything.

Many Thanks,

Its covered in the linked doc (above), suggest make a start with that.
If its not possible to prove dependency in terms of a direct family member then caseworker can see (or may be persuaded to check) if the extended family member requirements are met.

Dependency is primarily about basic needs (food, housing) but not simply personal care.
Thanks to Pedro, extensive history or justification/reasons are not required for such dependency.
However (based on other members' recent cases) be aware HO may not see it that way, you may have a battle on your hands.

[BClassBritish]

So now I am in a bit of situation here then.

My father cannot have a bank account in the UK because of his immigration status.

So if my wife starts sending money into my account every month and I quit my job then I guess I can prove that my father is dependent on her if I use that money for groceries nd medicine etc.

However the HO will raise the objection about savings in my account. Can I tell them that we use the savings for rent and the rest of the house hold expenditure is all done by my wife?

Many Thanks,

[BClassBritish]

Hi All,

So my father has been in the UK for over a year now while a discretionary leave case is pending with the HO. I married my French wife more recently.

If all other financial criteria are met ... could the HO object that the father in law was already in the country because of British child before the EEA citizen became his sponsor?

Many Thanks,

[noajthan]

Hi All,

So my father has been in the UK for over a year now while a discretionary leave case is pending with the HO. I married my French wife more recently.

If all other financial criteria are met ... could the HO object that the father in law was already in the country because of British child before the EEA citizen became his sponsor?

Many Thanks,

HO may or may not do that, without someone on the inside who could say for sure.

But motive for dependency and prior visa status should be immaterial in EU migration cases. All that matters under EU law is proof of dependency as a 'matter of fact'.

[Obie]

So now I am in a bit of situation here then.

My father cannot have a bank account in the UK because of his immigration status.

So if my wife starts sending money into my account every month and I quit my job then I guess I can prove that my father is dependent on her if I use that money for groceries nd medicine etc.

However the HO will raise the objection about savings in my account. Can I tell them that we use the savings for rent and the rest of the house hold expenditure is all done by my wife?

Many Thanks,

You got to be extremely careful here. The UKVi has put new definition for marriage of convenience, which has changed from sole purpose, which is the EU test to purpose for getting married. If a view is formed that your marriage was designed to possibly assist your dad, even if he qualifies under the regulations, that provision may be imposed. So it is best to thread extremely carefully.

Last thing you want is both your dad and wife to facing Regulation 21B issues.

[BClassBritish]

So now I am in a bit of situation here then.

My father cannot have a bank account in the UK because of his immigration status.

So if my wife starts sending money into my account every month and I quit my job then I guess I can prove that my father is dependent on her if I use that money for groceries nd medicine etc.

However the HO will raise the objection about savings in my account. Can I tell them that we use the savings for rent and the rest of the house hold expenditure is all done by my wife?

Many Thanks,

You got to be extremely careful here. The UKVi has put new definition for marriage of convenience, which has changed from sole purpose, which is the EU test to purpose for getting married. If a view is formed that your marriage was designed to possibly assist your dad, even if he qualifies under the regulations, that provision may be imposed. So it is best to thread extremely carefully.

Last thing you want is both your dad and wife to facing Regulation 21B issues.

Thanks for your concern here but its definitely not a sham marriage. Me and my wife have been together for years so I dont think HO will do down this route.

The only confirmation I want is if the HO can object that my dad was already inside the UK before he became dependendent on my wife?

[noajthan]

Thanks for your concern here but its definitely not a sham marriage. Me and my wife have been together for years so I dont think HO will do down this route.

The only confirmation I want is if the HO can object that my dad was already inside the UK before he became dependendent on my wife?

Noone can confirm that as HO are a law to themselves despite what EU law/Directive and related case law says.
Even the most open and shut cases are not waved through with benefit of doubt.
As already suggested, you are likely to face initial refusal and have a battle on your hands.

[vinny]

Indeed, as an example, they have refused an applicant because the applicant knows the law. Then, the Regulations are rewritten to suit their interpretation.

[BClassBritish]

Thanks for your concern here but its definitely not a sham marriage. Me and my wife have been together for years so I dont think HO will do down this route.

The only confirmation I want is if the HO can object that my dad was already inside the UK before he became dependendent on my wife?

Noone can confirm that as HO are a law to themselves despite what EU law/Directive and related case law says.
Even the most open and shut cases are not waved through with benefit of doubt.
As already suggested, you are likely to face initial refusal and have a battle on your hands.

Does my father qualify under the EU regulations or is there ambiguity in that as well?

Thanks

[Obie]

I appreciate that. What i am saying is, the Home Office has changed the law, such that it is not only sham marriages that will be refused on marriage of convenience basis, but any marriage designed to circumvent the immigration rules.

They have gone to the extent of refusing appeal rights in these case.

I envisage lots of fight in the new year as there has not been any refusal on this new rules.

I envisage based on my reading of these new laws, that you may fell foul of it.

I think your lawyer did a very bad job in leading you in this direction.

[noajthan]

Does my father qualify under the EU regulations or is there ambiguity in that as well?

Thanks

My understanding is its not black and white.
You need to make a case and prove dependency - as already explained.

Case law is on your side (as already explained) however there is no guarantee HO plays ball.
And you have overcome or dodged one major obstacle as father is already in country.
If he was abroad and you were first attempting to apply for a FP (ie to gain his entry to UK) you would face a much more challenging process.
As it is you are at second stage of demonstrating and confirming father's status in UK.

HO are likely to force you to an appeal or some sort of court battle.
You may win.
If however you cannot make a case for father as dependent family member (or lose the argument) there are likely to be consequences due to the clear intent/attempt (of father) to settle;
for example future UK visit visas may not be granted (if your father ever had to rely on them in future).