Parents EU1 residence card applications refused - please help

[pal80uk]

Hi all,

I am a British National exercising my treating rights here in Ireland and working. My parents initially came to UK on a UK visit visa valid for 6 months. We than all moved together to Ireland in Dec 2016 via ferry and applied for their residence cards using EU1 form in Mar 2017.

Yesterday we received refusals from INIS after 10months and 22days waiting time. They have asked us to make representations in 21 working days from the date of this letter.

The refusals from INIS is as below:****************
The Minister proposes to refuse your application for a residence card under Regulation 27 (1) for the following reasons:
You submitted an application under EU treaty rights on xxx, on the basis that you are the dependant of xxx, your UK citizen son, in accordance with Reg 3(5)(b)(iii). you have indicated that you entered the state on Dec 2017.
It is noted from your passport that you entered UK on ...Oct16 on a UK Family visit visa which was valid from ...Sept16 to ...Mar17. Information available to this office from UKBA notes that as part of your application for this UK visa which was submitted on ...Sept16, you advised UK authorities that you intended visiting family members in the UK and intended on staying 6 months. you also indicated at the time you submitted the visa application you where retired with a yearly pension of 232,212.00INR. You have monthly living costs of 5,000INR. you advised in the application your son will pay the expenses related to the trip.

you provided undertaking to observe the conditions of the visa issued to you by the UK and that you would leave the state on the expiry of your permission to remain.

the minister is concerned that the information provided to the UK authorities in support of your UK visa application is not compatible with the information you have provided to this office. In particular, the minister has considered the information and documentation in support of the financial aspects of your particular circumstances.

having regard to the foregoing, the minister has, at present, significant concerns that the circumstances of the application have been brought about with the objective of obtaining an immigration permission to remain in the state. In that regard the minister now proposes refusing your application to be treated as a qualifying family member of EU citizen, in the absence of further satisfactory evidence being furnished such as might properly and substantially address the concerns and issues raised by your decision would not act as an obstacle to EU citizen exercising his right to free movement.

It is however also noted, from documentation submitted, that your UK citizen son has resided in the state since Dec 2016. this contradicts the information provided to UK authorities in support of your application for a UK entry visa and seriously undermines the credibility of the information.
**************************
Please help me with my queries below:
1) Are the reasons for refusal valid? I thought qualified family members did not require prior dependence on EU citizen?
2) Should I make new application or appeal? which would take less time
3) I am really confused, as they are focussing too much on what was said in UK visitor visa application, which had different requirements. We had to show parents had enough finance and they intended to go back. It feels like a trap and catch 22 situation.
4) they are saying my parents entered state on Dec 2017, not sure if this is typo or mistake from our side. On my cover letter it does say Dec 16, as I have copy with me, not sure abt the application form.
5) Also I was on leave from my UK job until end of Jan 2017...but i did come Dec 2016 to Ireland. I see they are disputing this date too. I provided ferry tickets as evidence for this, showing all passenger names.
Please can someone give me clear steer on my situation, and what can I do in terms of next steps.

Thanks, please respond and share your views!

[shpirtshqipe]

EU Directive for Freedom of Movement requires the Permitted Family Member(s) to be Dependend upon the EU Citizen prior to entering Ireland.


Extract from the EU Directive Statue:

in order to decide whether to grant a permission under paragraph (a), the Minister shall cause to be carried out an extensive examination of the personal circumstances of the applicant and shall have regard to the following:
(i) the extent and nature of the dependency;
(ii) in the case of financial dependency, the extent and duration of the financial support provided by the Union citizen or his or her spouse or civil partner to the applicant prior to the applicant’s coming to the State, having regard, amongst other relevant matters, to living costs in the country from which the applicant has come, whether the financial dependency can be satisfied by remittances to the applicant in the country from which he or she has come and other financial resources available to him or her;
(iii) in the case of dependency on serious health grounds which strictly require the personal care of the Union citizen or his or her spouse.

[dupalsky]

Hi Pal80uk,

There is no reason to be confused. You seem to be an intelligent person. I refuse to believe that you did not make a little research of your own in regard of what you a were applying for before sending out the EU1 application form. Even if you claim that you didn't know, the EU1 application form(section 1.10) which you did fill out and sent to the immigration clearly asked the relationship of the applicant to the EU citizen and you must have chosen dependant parents or grand parents.

Having made the above point, if your parents uk visitor's application form says that they have pension income of the amount the immigration mentioned in their letter, that obviously mean they are not dependent on you and therefore they immigration decision is correct, I'm afraid.

Dupalsky

[pal80uk]

Hi dupalsky/shpritshqip
I understand ur point regarding dependency, which i believe can originate at anytime and its also fact parents are dependant on me from day 1 of entering into the state.

I fail to understand, why INIS would specifically request information on prior dependence on form EU1a, whereas form EU1 does not request anything other than documents showing dependence in the state?

[pal80uk]

EU Directive for Freedom of Movement requires the Permitted Family Member(s) to be Dependend upon the EU Citizen prior to entering Ireland.


Extract from the EU Directive Statue:

in order to decide whether to grant a permission under paragraph (a), the Minister shall cause to be carried out an extensive examination of the personal circumstances of the applicant and shall have regard to the following:
(i) the extent and nature of the dependency;
(ii) in the case of financial dependency, the extent and duration of the financial support provided by the Union citizen or his or her spouse or civil partner to the applicant prior to the applicant’s coming to the State, having regard, amongst other relevant matters, to living costs in the country from which the applicant has come, whether the financial dependency can be satisfied by remittances to the applicant in the country from which he or she has come and other financial resources available to him or her;
(iii) in the case of dependency on serious health grounds which strictly require the personal care of the Union citizen or his or her spouse.

But my parents are qualifying family members....not permitted family members.

Are you suggesting it is same thing and rules for both are same too?

[shpirtshqipe]

But in our case....for employed eu citizens....only requirement as i understand is dependence at the time of application in the state.

In order to bring a Parent over under the EU Treaty Right you MUST prove dependency in the Country of Origin and NOT in the State when applying for the EU1 (This dependency needs also to be reasonably durable, one example is, you sending money regularly over months not weeks prior to EU1 application). Period!
If it was as easy as proving dependence when in the state, everyone would be able to bring their parents over under such Treaty. The conditions of the Treaty allow parents who are dependent to join the EU citizen or if they have significant ill-health when the treatment is not available in their country of origin.

The EU Citizen at the Time of EU1 Application MUST:

E. Residing with sufficient resources
Where the EU citizen has sufficient resources to maintain themselves and any dependants in the State, while possessing comprehensive sickness insurance in respect of themselves, their spouse, and any dependants. A person residing on this basis must have sufficient resources such that they would not become an unreasonable burden on the social assistance system of the State.
Link to Explanatory Notes EU1 Form http://www.inis.gov.ie/en/INIS/Form%20E ... eaflet.pdf:

This means that the onus is on the EU Citizen to be responsible for ALL aspects of their parents' existence in the State therefore making them (parents) Dependent on the EU Citizen but, Dependence must have existed before (otherwise what's the point of calling it dependence).

Paragraph 3(a)(i) Page 10 refers to YOU the EU Citizen and what qualifies you to be considered a Permanent or Ordinary Resident in the State. Fulfilling clauses (a)(i) allows you to exercise these Treaty Rights (of course an EU citizen can live as long as they want in the state but to qualify for EU1 the aforementioned need to be met).

But my parents are qualifying family members....not permitted family members.

Your Parents are Qualifying Dependent Parents. Link: http://www.inis.gov.ie/en/INIS/Pages/Fa ... s+citizens
However they do not have an absolute right to join you automatically (like in the case of a child or spouse joining the EU Citizen) Link: http://www.citizensinformation.ie/en/mo ... mbers.html

Page 11 Refers to YOUR Parents, specifically Paragraph 5(b)(ii) since they are Direct Relatives.

But my parents are qualifying family members....not permitted family members

Permitted family members would be people like a brother or sister
Link: http://brophysolicitors.ie/visa-applica ... explained/

[pal80uk]

I really appreciate your valuable feedback. More I look into this more I get confused. Information that you provide does suggest prior dependence is essential. But than when I read other articles, feels as if there are certain exemptions. Would be grateful if you could also review below and share your understanding.

How about Pedro V SECRETARY OF STATE FOR WORK AND PENSIONS: CA 14 DEC 2009 case in the UK. Is this not relevant to my case, as it does suggest that dependency can arise from within the state.
I provided all supporting documentation from Ireland showing I am looking after all their expenses etc….but did not explain reasons how dependency arose after coming into the state. Could this be the main reason for refusal?
I found further similar info on this from websites, hinting towards the same:
1)
You must have considered stage 1, stage 2 and stage 3 of this test before moving on to stage 4. Dependency A child aged 21 or over and any relatives in the ascending family line must prove they are dependent on the EEA national sponsor or their spouse or civil partner.
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 Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358 (14 December 2009).
Link: https://www.gov.uk/government/uploads/s ... s_v5_0.pdf
2)
Staying for more than 3 months
If you are a worker

If you are working in another EU country, as an employee, self-employed or on a posting, your non-EU spouse, dependent children and grandchildren can stay there with you without having to meet any other conditions.
Link: https://europa.eu/youreurope/citizens/r ... dex_en.htm
3)
Are you working, a pensioner, have your own resources?

If you are working, are a pensioner or have sufficient resources, your parents will be treated in the same way as your spouse or children.
Link: https://europa.eu/youreurope/citizens/r ... dex_en.htm


I admit one thing that I did not explain properly why and how dependency has arisen from within the state, instead I only focussed on comparing back home and how they will be looked after well here with me. They are both 70+ and live with my single brother back home who is mostly on business trips and can hardly commit to parental responsibilities. They were mostly living on their own and hence my request to look after them here as my dad is partially sighted and deaf and mum has hole in her lung, Doctor has advised her to keep away from dusty works or areas with high pollution levels.
Please please suggest how can I progress with my application, based on above scenarios and how to re-submit or appeal a successful application, now that parents are here with me for more than a year now and fully dependent?

[shpirtshqipe]

Your problem is that your parents are not dependent on you based on the financial information you provided to the UK authorities since they have a pension which covers expenses.
Therefore if a parent is “independent” they are no longer classified as “dependent relatives” for the purpose of EUFAM Residence Card (this is the argument INIS is using). This means they Do Not qualify for the EU Treaty Right.
In comparison a spouse is not required to be dependent since they automatically qualify for the EUFAM Visa without the need of dependency to be proven.


Your other option would have been ill health but they will only qualify for this option if the treatment for those conditions isn’t available in their country of origin. In your case INIS can or may argue saying the pension money they get and the help of their children could/would pay for medical expenses thus not qualify for the EUFAM Residence Card.

Finally your other problem is that INIS is strongly suspecting you’ve availed the EU Treaty Rights as a means of getting Residence permits for your parents rather than intention of settling in Ireland.

Perhaps other members have different experiences that may help you but as it stands you are limited in options. I see you’ve done lengthy research into a solution however ultimately you should consider consulting an immigration lawyer too.

This is as far as my knowledge goes so I wish you the very best of luck.

[pal80uk]

Thx for ur valuable feedback....Cld u plz suggest few good solicitors in dublin?
Im really running out of options here. Is there any other route available to me? Using their dependency in ireland...as ihv been looking after thm here.

[CR001]

Thx for ur valuable feedback....Cld u plz suggest few good solicitors in dublin?

Members are not permitted to post names or details of solicitors/lawyers on the forum. Any such information will be deleted.

[pal80uk]

No problem, completely understand.
Are you able to suggest other options available to me based on my case please.
Am i hitting the dead end here?

[Bobthemoggie]

I'm Not an expert just suggesting, so have your own research.

If your intention is not return back to UK/Ireland, then perhaps try moving to countries in Schengen zone.
(Before choosing you'll need to research on these member states and their immigration policies and procedures)
Or move to Switzerland if the intention is not to settle permanently, but just be together as long as you work there.
Or immigrate to a country which allows your parents to live along with you/ or move to parents country of origin.

Cheers

[pal80uk]

Hi Bobthemoggie
Many thanks for your input below.
I have now submitted my appeal through a solicitor, but same time I am exploring other options available to me as well.

Do you know visa requirements if I plan to travel to Switzerland or Schengen zone, from Ireland?
(My parents currently have temp stamp4 which is expiring end of this month, and I am not sure if INIS will grant them further extensions, as its already been 12 months on Temp stamp 4. )

Secondly, will I be able to file dependency application in other Schengen countries based on their UK/Ireland dependency on me, now that they have been part of my household since Oct 2016 - time they first arrived in the UK?

[shpirtshqipe]

Schengen was developed by the European Union, 26 of them to be exact, therefore this will not be an option for you to apply parents dependency. This is because you will be the EU Citizen thus Freedom of Movement applies same as it is here in Ireland.

If you decide to move to another EU state i.e. Italy or Spain then you will have to disclose your parents Irish EUFAM application. This alone will complicate matters and probably increase the chances of refusal (suspicion of missusing the EU Treaty). Dependency will also need to be proven in the country of origin and this will not change if you applied from another EU/Schengen state just because your parents lived with you in Ireland since 2016. This is because your parents don’t have the EUFAM Visa thus their immigration status remains unchanged. As an example, If your parents did have the EUFAM and you decide to move to another EU Country then such dependency can be carried over.

[pal80uk]

Is it the same reason INIS is refusing to accept my case - just because I was showing dependency from the UK (from within EU)?

My reasoning was 'change in circumstances' when I was in the UK - I said in my initial application that after living with parents in the UK, I discovered parents required long term care which is not available to them in their home country, due to family situation. Dad partially sighted and has hearing difficulty; mom has a punctured/ collapsed lung and struggled to manage their day to day activities.

I work full time and wife part-time, and between us we can provide that long term care to parents, as we get decent salary between us every month too.

Anyway, based on my situation above, is there any other route/ option available - to continue to live together as family within EU.

[mgb]

Did you appeal the INIS decision?

[pal80uk]

Yes, I am submitting appeal through a solicitor on Monday.

[pal80uk]

Solicitor has informed me, he has sent email today, but will send it in post on Monday, due to adverse weather this week all post offices are closed.

[mgb]

If you can prove current dependency there should be no problem.

[pal80uk]

Hi mgb

Thanks for clarifying this. lets see how INIS will respond to my appeal.

Actually Solicitor advised, they have not refused my application yet. The wording used by INIS was - 'We are proposing to refuse your application'. And advised us to make representations within 21 working days - to advice them why they should not refuse our applications.

[Bobthemoggie]

Hi Bobthemoggie
Many thanks for your input below.
I have now submitted my appeal through a solicitor, but same time I am exploring other options available to me as well.

Do you know visa requirements if I plan to travel to Switzerland or Schengen zone, from Ireland?
(My parents currently have temp stamp4 which is expiring end of this month, and I am not sure if INIS will grant them further extensions, as its already been 12 months on Temp stamp 4. )

Secondly, will I be able to file dependency application in other Schengen countries based on their UK/Ireland dependency on me, now that they have been part of my household since Oct 2016 - time they first arrived in the UK?

[Note I am not an expert..]
I guess first exhausting your options (appeal etc) in Ireland could be an good idea.
Since Oct2016 looks to be a long time, I guess cautiously checking with Solvit on requirement of 'part of same household' part, which becomes entitles even for non-dependent immediate family members going by textbook, perhaps could be a good idea. I am not expert so have your own research and judgement.
Generally many of Schengen countries are pretty quick for "non-EU Family Member of EU citizen" visa applications,( if you're going to go there as a Worker and contribute to the economy).
Have your own research on where you'll have fair chances of success, as every member state process RC application differently and have varying waiting times.

Switzerland: Is not part of EU. So EU rules generally do not apply there.
And even EU citizen needs Work Permit, which is dependent on duration of employment contract.
But it looks like they allow your family members to stay for entire duration, as long as you're working there & could demonstrate to afford the cost of living for entire family unit.
Nevertheless, you can find more information on their official site:
https://www.ch.ch/en/family-reunification-eu-efta/

Good luck

[rfaruque]

Hello,

Could you kindly post the latest progress on this, please.

I am currently taking a Job in dublin for similar reason. I am a British Citizen just got a good offer of jobin dublin. I will start my new life with my kids in there from May. My parents always visited my in tourist visa in Uk. but this time I am planning them to bring in tourist visa to IE. And then apply for their residency. And then if we like we carry on there or I will move back to UK next year if I dont like to continue living in IE. My plan is to bring them with me to UK along with me.

Could you kinldy let me know if this is all feasible by the Brexit deadline March 2019?
WIll my parents need tourist visa again to come to UK if they want to come with me in 2019?

Could somebody kindly advise me the best way to make this work please.

Many Thanks

[mgb]

Hi mgb

Thanks for clarifying this. lets see how INIS will respond to my appeal.

Eu directive 2004/38 article 2 :

Definitions


For the purposes of this Directive:
.
.
2) "Family member" means:
.
.
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);



Do you see any precondition where the dependency has to happen?

[pal80uk]

Hi mgb
I do not see any precondition written anywhere in the Directive at all.
From the Directive, its all present sentence - current dependency.
I see your point! Thanks


*************************************************
Hi rfaruque:
Regarding your query - in my experience, you must consult someone and take advise from trusted sources such as here, at each stage of your application process.
Maybe start your own thread, relevant to your situation for further help and advice from seniors here.

[pal80uk]

Hi Bobthemoggie
Many thanks for your input below.
I have now submitted my appeal through a solicitor, but same time I am exploring other options available to me as well.

Do you know visa requirements if I plan to travel to Switzerland or Schengen zone, from Ireland?
(My parents currently have temp stamp4 which is expiring end of this month, and I am not sure if INIS will grant them further extensions, as its already been 12 months on Temp stamp 4. )

Secondly, will I be able to file dependency application in other Schengen countries based on their UK/Ireland dependency on me, now that they have been part of my household since Oct 2016 - time they first arrived in the UK?

[Note I am not an expert..]
I guess first exhausting your options (appeal etc) in Ireland could be an good idea.
Since Oct2016 looks to be a long time, I guess cautiously checking with Solvit on requirement of 'part of same household' part, which becomes entitles even for non-dependent immediate family members going by textbook, perhaps could be a good idea. I am not expert so have your own research and judgement.
Generally many of Schengen countries are pretty quick for "non-EU Family Member of EU citizen" visa applications,( if you're going to go there as a Worker and contribute to the economy).
Have your own research on where you'll have fair chances of success, as every member state process RC application differently and have varying waiting times.

Switzerland: Is not part of EU. So EU rules generally do not apply there.
And even EU citizen needs Work Permit, which is dependent on duration of employment contract.
But it looks like they allow your family members to stay for entire duration, as long as you're working there & could demonstrate to afford the cost of living for entire family unit.
Nevertheless, you can find more information on their official site:
https://www.ch.ch/en/family-reunification-eu-efta/

Good luck

****************************************************
Hi Bobthemoggie
I agree with you, that exhausting my options here first will be sensible move. I will also check with Solvit regarding 'part of same household' criterion.

Regarding moving to Schengen countries, I note reply from 'shpirtshqipe' that parents dependency cannot be carried over from within the EU, if it does not get accepted here in Ireland first!
Have I understood this correctly? Please correct me if I am wrong.