EEA FP refused: Moscow

[rosebead]

As you probably know, any developments in CJEU law will be very slow to be reflected in UK legislation unfortunately and consequently in EEA FP/EEA2 applications. That said, all CJEU case law can be used in arguments in appeals court, even if the Home Office won't change its stance at the FP application stage.

Colin Yeo, a UK immigration barrister, talks more about Case C-423/12 Flora May Reyes v. Migrationsverket here. This extract from Colin Yeo's blog post is particularly interesting:

The Court noted that dependency has to be ‘real’ (the case of Jia [2007] EUECJ C-1/05). The court however emphasised that:

there is no need to determine the reasons for that dependence or therefore for the recourse to that support (para 23)

and

The fact that, in circumstances such as those in question in the main proceedings, a Union citizen regularly, for a significant period, pays a sum of money to that descendant, necessary in order for him to support himself in the State of origin, is such as to show that the descendant is in a real situation of dependence vis-à-vis that citizen (para 24)

I could be wrong but the case law seems to be saying that you only have to show evidence of past remittances to prove 'real dependency'.

Here is some more analysis of Case C-423/12. An extract from the analysis about the judgment of the case:

The Judgment

The CJEU echoed Case C-1/05 Jia in its determination that the existence of a situation of real dependence must be established, that this is a factual situation, and that it must exist in the State of origin (paras 20-22). The Court found that there was no requirement for a national court to consider the reasons for the dependence upon a Union citizen, in order to follow the principle that the Citizens’ Directive should be broadly construed. As long as a Union citizen has regularly given support over a significant period to the descendant claiming to be a dependent family member in order for the latter to support themselves in their State of origin, that descendant is shown to be in a situation of real dependence. There is no additional requirement for the descendant to establish that he/she has tried without success to find work or obtain subsistence support from the authorities of the State of origin/elsewhere in order to support him/herself- such a requirement would be likely to “deprive Articles 2(2)(c) and 7 of Directive 2004/38 of their proper effect” (para 26).

It looks like it's particuarly good news for dependants of working age - they can prove dependency simply by receiving regular remittances from their EU family member. Dependants also do not have to prove that they can't find work or can't get social security to be able to claim dependency. They also do not have to justify their reasons for why they are dependent on their EU family member.

[rosebead]

Here's a nice little chapter about 'dependency' with case law references, taken from a book about EU free movement.

[rosebead]

I found this UK case law and it made me think of your case - I think it might be useful to you. The claimant was a retired Malaysian woman who had over £50,000 in savings and an £80,000 house in Malaysia. Despite these assets and the Home Office's assertion that the claimant could live off her assets instead of depending on remittances from her daughter in the UK (remittances which incidentally only partly met the mother's essential needs as opposed to mainly or wholly), the judge in this case stuck with the principle established in ECJ case law which is that where direct family members are concerned, dependency can be a matter of choice and not of necessity, and so the judge ruled in the claimant's favour.

Some analysis of the case here.

[a.s.b.o]

I found this UK case law and it made me think of your case - I think it might be useful to you. The claimant was a retired Malaysian woman who had over £50,000 in savings and an £80,000 house in Malaysia. Despite these assets and the Home Office's assertion that the claimant could live off her assets instead of depending on remittances from her daughter in the UK (remittances which incidentally only partly met the mother's essential needs as opposed to mainly or wholly), the judge in this case stuck with the principle established in ECJ case law which is that where direct family members are concerned, dependency can be a matter of choice and not of necessity, and so the judge ruled in the claimant's favour.

Some analysis of the case here.

RoseBead

many thanks for your continual commitment to the topic. I am at the conference at the moment and will post the update shortly. Cheers!

[a.s.b.o]

Hello!

Thanks for that. We have a bit of a twist in the case. In short, I went to Finland for a research visit and have received a case hearing date which would occur in my absence. I have requested an adjournment, have been notified that it would be processed, but it transpired that it was not. The hearing went on in our absence and was dismissed.

Now. I have written to the court outlining this. A solicitor asked for a hefty sum to submit the appeal for the right to appeal to the higher tribunal. Thankfully, the judge on her own accord has revoked her own decision. We now have a date in October for a hearing. Right from scratch. Tabula rasa. Bingo!

Now. I rely on three pieces of legislation. Four in fact -

1. Jia
2. Lebon
3. Reyes
4. and now, thanks to RoseBead, Lim.

I wander if there is anything else, recent or otherwise, that would support the argument framework -

1. Necessity out of choice - now supported with NO property rights in appellants' name and NO independent income.

Many thanks

[Obie]

Wow, your case has reached upper tribunal.

You cannot just simply rely on these cases. They have to be relevant to the reason for refusal or the reason why you believe the judge erred.

[a.s.b.o]

Incorrect. This is still a lower-tier hearing. It does not appear to be an upper-tier tribunal. unless I confuse things and the only way to hear this was to "allow" the appeal ?! which I would find odd as we have requested the following -

"I request an opportunity to make submissions and present evidence to the Judge who heard the case before a decision is made"

[Obie]

There is no power in law for the FTT to review it's decision.

That can only be done by the Upper Tribunal.

The FTT can only grant permission to appeal.

[a.s.b.o]

Hi Obie, thanks for that.

What are the implications for the presentation associated with upper tribunal hearing? Talking to Tribunal support line, Belfast has a limited pool of judges and the chances are that the same/previous (last year's judge) would be presiding?!

What would be some of the practical issues to address, which either would strengthen the case or are specific to the UP hearing?

Kindly thanks

ASBO

[Obie]

Well if their judges are not good, you have two options,

request that the matter be transferred to London, or assist the Judge with the presentation of your case, so as to make things very clear to him or her.

[a.s.b.o]

Thanks Obie

So it appears that the structure of the hearing does not differ? What I found bizarre last time was a frank admittance on behalf of the judge when presented with Lebon and Jia in my bundle "I am not familiar with that, I need to have it examined later". I do not feel I want to take that gimmick again. And then when examining the wording of the refusal, he still went on ranting about "out of choice", "can provide for themselves" etc. So what I am really asking is the following -

1. what are the extra checks at UT hearing to cut out mediocrity in possible judge's limited knowledge of EEA legislation?
2. what would be practical benefits of asking to transfer the case to London? If so, would I do this prior to the hearing or at the hearing?

Thank you loads

[el patron]

For your information the President of the United Kingdom Upper Tribunal is the Hon. Mr. Justice McCloskey, who is a High Court Judge in Northern Ireland. I know from experience that he has an excellent grasp of EC treaty rights, the directive, regulations and case law. It is relatively likely that he will hear your appeal as he obviously likes to return home from time to time! Just put the case clearly before him, he will have heard of Lebon etc.

Here is an example of his decisions in a Belfast case - https://tribunalsdecisions.service.gov. ... 02805-2013

[a.s.b.o]

Thanks for that. if the judge is indeed knowledgeable of the EEA legislation it is of benefit. I did not make generalisation and made a note of a particularity in judgement - being based on my previous experience. it was defo messy and i will scan the decision to refuse the UT appeal for you to see what kind of mediocre arguments were used to justify the refusal.

On the other note, I want to know if self-representation is warranted. i am mindful of the fact that i know the situation -our situation - more intimately than others, but would a good solicitor make a difference and if so, in what areas - (1) cohesion of representation, or (2) more efficient reference to the EEA law, or (3) procedural efficiency and familiarity ?!

thanks!

[el patron]

Thanks for that. if the judge is indeed knowledgeable of the EEA legislation it is of benefit. I did not make generalisation and made a note of a particularity in judgement - being based on my previous experience. it was defo messy and i will scan the decision to refuse the UT appeal for you to see what kind of mediocre arguments were used to justify the refusal.

On the other note, I want to know if self-representation is warranted. i am mindful of the fact that i know the situation -our situation - more intimately than others, but would a good solicitor make a difference and if so, in what areas - (1) cohesion of representation, or (2) more efficient reference to the EEA law, or (3) procedural efficiency and familiarity ?!

thanks!

Yes send me the scan of the decision, what was the name of the First-tier Immigration Judge?

[Obie]

Thanks Obie

So it appears that the structure of the hearing does not differ? What I found bizarre last time was a frank admittance on behalf of the judge when presented with Lebon and Jia in my bundle "I am not familiar with that, I need to have it examined later". I do not feel I want to take that gimmick again. And then when examining the wording of the refusal, he still went on ranting about "out of choice", "can provide for themselves" etc. So what I am really asking is the following -

1. what are the extra checks at UT hearing to cut out mediocrity in possible judge's limited knowledge of EEA legislation?
2. what would be practical benefits of asking to transfer the case to London? If so, would I do this prior to the hearing or at the hearing?

Thank you loads

Well the specialist are all based in Field House, although some of them sometimes sit in panel at Belfast Hearing centre.

Your case has been going on for a while, and i remember offering you advise a while back.

Perhaps you should get a legal person to assist with your appeal.

It is utter ridiculous.

[a.s.b.o]

There is no power in law for the FTT to review it's decision.

That can only be done by the Upper Tribunal.

The FTT can only grant permission to appeal.

Obie,

you will be surprised, but I have re-examined the letter and there is little reference to the FTT or UT, except for "Clerk to the FTT" at the bottom of the appt letter. Hows that possible given your indication of impossibility of this?

[el patron]

There is no power in law for the FTT to review it's decision.

That can only be done by the Upper Tribunal.

The FTT can only grant permission to appeal.

Obie,

you will be surprised, but I have re-examined the letter and there is little reference to the FTT or UT, except for "Clerk to the FTT" at the bottom of the appt letter. Hows that possible given your indication of impossibility of this?

The initial letters in respect of appeals to the Upper-tribunal do still come from the first tier tribunal, but realte to the Upper tribunal.

[a.s.b.o]

There is no power in law for the FTT to review it's decision.

That can only be done by the Upper Tribunal.

The FTT can only grant permission to appeal.

Obie,

you will be surprised, but I have re-examined the letter and there is little reference to the FTT or UT, except for "Clerk to the FTT" at the bottom of the appt letter. Hows that possible given your indication of impossibility of this?

The initial letters in respect of appeals to the Upper-tribunal do still come from the first tier tribunal, but realte to the Upper tribunal.

but usual myself or simply stubborn. i called the tribunal and they confirmed it is a FTT. They told me that the hearing was adjourned. they did not know how to link previous comments of the decision (refusal in absentia) to the "adjourned" status on the system. i am clearly confused. what about honourable gents here?!

NB

Ok, I believe 2005 Appeal regulations allow to withdraw decision in admin cases, i.e. as in this case given failure of the tribunal to adjourn the hearing until I am back in the country.

[Obie]

I am confused aswell, but it makes more sense that your case is at the FTT than the Upper Tribunal, as you would need to seek permission and be granted one, before you can go to the Upper Tribunal.

[a.s.b.o]

A quick question. what would a fee for a EEA FP hearing representation command these days? I am asking for a complete approximation between and between. Relevant bundle of documents (1 - EEA exercising ready rights, 2 - relations, 3 - financial dependence) is collated and collected.

Many thanks

[Obie]

Reasonable representatives will charge between 1200-1500 for that sort of work.

[a.s.b.o]

I don't know if it helps but earlier this year the CJEU further clarified what 'dependency' means through Case C-423/12 Flora May Reyes v. Migrationsverket - see here

gents

have any cases that might have come to your attention were tried and decided in the UK since enactment of Reyes and were made by relying on Reyes? The reason for asking is that Reyes will be critical to my appeal to be heard in 4 weeks. Many thanks

[a.s.b.o]

Lin of course, not Reyes. thanks!!!

[a.s.b.o]

anyone please?

[a.s.b.o]

Appeal is allowed!!! More details to follow