Dependancy After issue of Residency Document

[allenboo]

Hi Rosebead, can you clarify something for me.
does EEA 2 issued in terms of dependency carry right to work?
if yes, that would mean the dependant would no longer be depending on the sponsor after sometime because the dependant would be working before the completion of the eea2 five years residence permit. I am surprised that the dependant would need to be depending on the sponsor for the next 5 years before acquiring Permanent residence.
Thanks

[rosebead]

Sorry I didn't see your post till now, I don't tend to suscribe to threads. Once your mother gets her EEA4, this officially confirms her Permanent Resident status, and so after that there will be no more conditions upon her stay. She can do whatever she likes - work, claim benefits, etc - without it affecting her right of residence. After one year of having EEA4 she can apply for British citizenship if she likes.

[a.s.b.o]

Sorry I didn't see your post till now, I don't tend to suscribe to threads. Once your mother gets her EEA4, this officially confirms her Permanent Resident status, and so after that there will be no more conditions upon her stay. She can do whatever she likes - work, claim benefits, etc - without it affecting her right of residence. After one year of having EEA4 she can apply for British citizenship if she likes.

I believe there is no more inference of the right of work once admitted to the UK on the dependence status. in other words, an admitted person with RC is entitled to work with no implications for being accepted as being dependent on the EEA national.

[rosebead]

I hope that is the case, a.s.b.o, as in this area, case law seems to be grey, at least with being in full-time employment and no longer being dependent on your EU sponsor in the host State. I know with benefits that a dependant can claim benefits without it affecting their "dependency" status in the host State (C-316/85 Lebon at paragraph 20). However I don't know if this also applies to employment where the pay derived from work is sufficient to make the non-EU family member independent of their EU sponsor. Jia (Case C-1/05 Jia) mentions dependency arising from the country of origin or the country that the dependant comes from, so does that translate as meaning that a dependant no longer has to be dependent on their EU sponsor once they are in the host State? However, Pedro [2009] EWCA 1358 says that you can become dependent on your EU relative in the host State and that dependency does not have to arise in the country from which the dependant comes from.

It does appear though from the OP's case that the Home Office does ask for proof of "dependency" in the UK in order for the OP's mother to obtain EEA4. So is the Home Office in the wrong to ask for proof of dependency in the host State?

[allenboo]

I received advice from solvit regarding this. Basically, they say as a direct family member which was clearly laid down in the EU directive - spouse, children and parents - there is automatic rights to reside in host member state and that the dependant can be independent later and take up employment. But for other family members beneficiaries - I think directive 3 (2) - brothers, sisters, and others - there is no automatic rights to reside in host member state as well as to work - and this area is only left to national authories to assess and they can therefore place any requirements they want - and national courts cannot be compelled to anything.

[a.s.b.o]

I received advice from solvit regarding this. Basically, they say as a direct family member which was clearly laid down in the EU directive - spouse, children and parents - there is automatic rights to reside in host member state and that the dependant can be independent later and take up employment. But for other family members beneficiaries - I think directive 3 (2) - brothers, sisters, and others - there is no automatic rights to reside in host member state as well as to work - and this area is only left to national authories to assess and they can therefore place any requirements they want - and national courts cannot be compelled to anything.

what legal backing did they use to justify this point (differentiation between direct/indirect relatives)?

Thank you

[Obie]

I have had to split this topic as it seems like the OP highjacked the other post.

The discretion that Solvit confer on the authorities seem to be more than they are entitled to.

26 In the light of the foregoing, the answer to the first and the second question referred is that, on a proper construction of Article 3(2) of Directive 2004/38:

- the Member States are not required to grant every application for entry or residence submitted by family members of a Union citizen who do not fall under the definition in Article 2(2) of that directive, even if they show, in accordance with Article 10(2) thereof, that they are dependants of that citizen;

- it is, however, incumbent upon the Member States to ensure that their legislation contains criteria which enable those persons to obtain a decision on their application for entry and residence that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons;

- the Member States have a wide discretion when selecting those criteria, but the criteria must be consistent with the normal meaning of the term ‘facilitate’ and of the words relating to dependence used in Article 3(2) and must not deprive that provision of its effectiveness; and

- every applicant is entitled to a judicial review of whether the national legislation and its application satisfy those conditions.

[el patron]

I would always suggest that relatives remain part of the EEA national's household, as this counts towards dependency. I also do not see the need at all to advise the Home Office that the dependent family member is working during the 5 year EEA2 stage. To do so only gives Home Office an opportunity to refuse an EEA2 or EEA4 application.

[a.s.b.o]

I would always suggest that relatives remain part of the EEA national's household, as this counts towards dependency. I also do not see the need at all to advise the Home Office that the dependent family member is working during the 5 year EEA2 stage. To do so only gives Home Office an opportunity to refuse an EEA2 or EEA4 application.

Keeping communication channel clutter free is the right strategy with UKBA given their objective inadequacy meshed with openly antagonistic view on EEA immigration route.