Present dependency extended family member..OBIE

[Goodman007]

Hi Guys.

Can't believe I will be posting here but it is what is now. I'm wondering if anyone can advise if I have a chance applying for an extended family member dependency on my eea brother.

At the moment I'm about to start on a journey of judicial review process based on ilr refusal(tier1 general) which will take 8months averagely however since I've lost the right to work my brother has been helping pay my mortgage and I have recently moved in with him because it's hard to live without a job in the UK.

So my question is, as a backup plan would I be successful if i apply for eea OFM based on present dependency?

My only reservations are i might not be able to prove prior dependency because he wasn't an eea citizen when I was member of his household 10years ago. Also I came to UK three years before him however from my little investigation it seems there are case laws one can use to argue you no longer need prior/continuous dependency and coming to UK around the same time as your eea sponsor.

I will appreciate the help guys..obie you there?

[secret.simon]

What are the nationalities of your brother?

[Goodman007]

Irish

[secret.simon]

On a point of clarification, is your brother solely Irish or is he a dual British/Irish citizen?

I doubt that your EFM application would be successful. CJEU case law (see Reyes, paragraph 22) states that "the need for material support must exist in the State of origin of that descendant or the State whence he came at the time when he applies to join that citizen". That suggests that present dependency is not sufficient.

The purpose of EU law on freedom of movement is that an EEA citizen is not constrained in his movements within the EU by restrictions on his dependents. In your case, your brother was not constrained into moving into the UK because you were denied a visa. He would be if he could not move with you now that you are a dependent. Therefore, if he decided to move to another EEA state with you, you could apply to that other EEA member-state as an EFM at that point in time.

Also be aware that you do not acquire any right to reside under EU law unless your EFM application is granted i.e. having an ongoing EFM application with the Home Office does not grant you the right to reside and work in the UK.

[Goodman007]

Thanks Simon, my brother is a dual citizen of Ireland and Ghana, I was nember of his household 10years ago in Ghana prior to him becoming an Irish citizen so I doubt of that will help in the event i apply.

I understand applying for EFM doesn't give me me right to live and work in UK, I'm just trying to explore all possible legal options on my own before approaching solicitors.

On another note, if my brother moves back to Ireland and I apply to Irish consulate on the basis I depended on him in UK. If that application is successful would that give me right to live and work freely within other EU member state?

[secret.simon]

if my brother moves back to Ireland and I apply to Irish consulate on the basis I depended on him in UK. If that application is successful would that give me right to live and work freely within other EU member state?

If your brother returns to his EU country of citizenship with you as a family member, that is called the Surinder Singh route. It is unclear if EFMs can be included in the Surinder Singh route, though direct family members definitely can be.

Also, Ireland is not a part of the Schengen zone and so an Irish EFM Residence Card, even if granted, will not give you the right to work across the EU.

You may be better off asking your brother to move to a Schengen zone EEA country, where you have a greater chance of success (as there will not be a Surinder Singh issue and you can prove that you were dependent on him in the UK) and can move across borders more freely.

[Obie]

The department of Justice in Ireland has not adopted legislation to transpose Surinder Singh, however they have a policy in place which seeks to give effect to surinder singh, however that policy is unlawful, as it requires the family member who were living with the Irish Citizen in another member state to demonstrate that they were issued with a residence permit.
I dont believe that requirement is lawful, and you may have to fight them, but you have every opportunity to succeed.

[Goodman007]

Thanks Obie, I have read through some horrifying experiences inflicted by the Irish system judicial system for FEM so it seems Ireland is a no go area.

What are your thoughts regarding application based on present dependency only in UK?

[Obie]

It should be okay.

[Goodman007]

Can you please provide case laws i can read to support my assumption one can apply successfully with present dependency only?
Or are there members in this forum that were successful?

[Obie]

In Ireland you can succeed on current uk dependency, but you cant succeed in UK.

Only those extended family member under regulation.8(3) 8(4) and 8(5), don't need to show anything from another country.

[Goodman007]

Thanks. Point noted