In continuation to the below link:
http://www.immigrationboards.com/eea-ro ... 16153.html
My parents EEA PR got refused on 09th October. Even though the application was prepared by a solicitor with huge set of documents enclosed with covering letter mentioning the below case law, it was bureaucratically rejected by the Home office.
TOMMY BUSTAMANTE DELOS REYES:
Court envisages that questions of dependency must not be reduced to a bare calculation of financial dependency but should be construed broadly to involve a holistic examination of a number of factors, including financial, physical and social conditions, so as to establish whether there is dependence that is genuine. The essential focus has to be on the nature of the relationship concerned and on whether it is one characterised by a situation of dependence based on an examination of all the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family.
FACTS OF THE CASE:
• I and my parents arrived in UK all together in August 2010 and we are all living together in the samehold since 2010 as on date. My parents had no source of income, savings or investments when we all came together in UK therefore they were naturally fully dependent on me when we arrived in UK.
• I immediately started employment in 2010 and hence acquired the right to reside and habitually residency. At the same time my parents also acquired the right to reside and habitually residency alongwith me in 2010 as they were fully dependent on me (‘dependent direct family member of a ‘worker’).
• Upon acquiring the status of ‘dependent direct family members of a ‘worker’, they became eligible to apply for social security and all applicable means tested benefits as enshrined in the EC directives.
• Therefore my parents applied for pension credit in Dec 2010 and thereafter housing benefit & council tax support in March 2011. Due to their health deterioration they further became eligible to apply for disability living allowance and attendance allowance around in 2011.
• Substantial amount of medical papers, Hospital reports and GP letter requiring son to give care and support were submitted to home office. A statement mentioning the caring tasks and responsibility signed by me was also submitted. I am the carer of my father since 2011(i.e. receiving care’s credit).
• I worked continuously for 5 years and have acquired PR in November 2015.
• I was fully financially responsible for myself and my parents from August 2010 – March 2011, i.e. before my parents became eligible for above social security benefits. However since March 2011 I am only contributing for telephone landline bills (direct debit from my account) and other monthly miscellaneous expenses such as food, grocery, entertainment etc. (using my credit card).
• The home office has refused my parents application stating that my parents have not provided sufficient evidence to show that they are financially dependent on me. They have further stated that from my credit card statements they are unable to ascertain that the food and grocery items purchased have been solely for their own use.
THE APPEAL HAS BEEN FILED AND AM WAITING FOR THE HEARING DATE, IN ORDER TO STRONGLY DEFEND MY PARENTS CASE, DO FURTHER SUBMISSION AND LEGALLY ARGUE IN ORAL HEARING, PLEASE CAN SOMEBODY HELP AND LEGALLY GUIDE ME TO JUSTIFY BELOW 11 POINTS OF ARGUMENTS AND ALSO IF POSSIBLE PROVIDE ME WITH RELEVANT LEGISLATIONS, CASE LAWS, MAXIMS, THEORY OF JURISPRUDENCE AND LEGAL LOGIC ETC TO SUPPORT MY EACH AND EVERY ARGUMENTS.
1. My parents are financially dependent on me from the day we all came in UK in Aug 2010.
2. There was no means tested benefits available to them from Aug 2010 till Dec 2010.
It should be noted here that this social security benefits were not in place initially when all 3 family members arrived in UK, the parents acquired these benefits only after 5 months after establishing financial dependency on Son. Prior to 5 months from the date of arrival in UK son was completely responsible for his parents.
3. The right to access means tested benefits was acquired only after establishing dependency on direct family member (son) who is a worker.
4. When a person establishes a particular status and by virtue of that status he/she acquires certain amount of rights as governed by the legislation then how can exercising one single right amongst them deprive his/her primary status on the basis of which those rights have been acquired. This is legally absurd.
5. Hence how can a family member loss his/her status of “dependency” upon exercising any of the social security rights especially when such social security rights is fundamentally derived only after establishing “dependency”. When there are series of rights available which can be exercised how can accessing one right prejudice other right or rights This is completely illogical, legally incorrect and against the theory of jurisprudence and natural justice.
6. Also there is no law or any legislation which states that claiming means tested benefits renders a person not financially dependent and that person will lose his primary dependency status, if at all there is any such law it will be a contrary to EU legislations which governs social security act.
7. If Home office is considering my parents financially not dependent - that means in order to avail PR as a ‘dependent family member’ of EEA national they are indirectly compelling my parents to stop availing social security benefits and pushing them back in their original stage when they first arrived in UK, which again means that my parents have to fully rely on me and the entire family will be like in a similar kind of situation when they had arrived in UK in 2010 in extreme financial distress and turmoil.
8. This again is forcing someone not to avail his/her social security rights. Stopping or compelling someone in any manner to stop exercising his rights is illegal. Creating circumstances which leads someone to stop claiming his legitimate rights, indirect deprival of rights is unlawful, the home office is committing an offence by refusing PR thereby intending to create distress and adverse circumstances.
9. My parents not only rely on me financially but also for caring and support, I am the carer of my father in receipt of carer credit and living in the same household since beginning. My parents do not have anyone to look after them and their survival is not possible without my association with them and we are an integrated undivided family.
10. The right to access social security is also laid down in human rights act. The right to access family life and freedom of liberty is also stipulated in the Human rights act.
11. The payment of food, grocery and other miscellaneous expenses which are done from credit card are meant for all family members of household including the parents. I and my parents are members of the same household and reside altogether so how can the home office make illogical statement that they are unable to determine purchase for sole use of parents. (NO CREDIT CARD STATEMENT IN THE WORLD CAN DETAIL THE PERSON WHO IS GOING TO CONSUME THAT FOOD OR GROCERY PURCHASED.)
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Thanks for reading, any amount of help advice or suggestions, inputs welcomed.