Refused EEA family permit for father of EEA citizen :URGENT

majaseem · Post by **majaseem** » Wed Jan 12, 2011 11:09 am

My Brother is a French citizen and he works in uk for over 5 yrs and settleted in uk with wife and 3 childrens. father came to uk to Visit him and he kept him in uk as he is Heart patient. applied EU Family permit for him in july2010. my brother being arrested for Licencing offence 16.09.2010 and was in custody and released on 24.11.2010 on the hearidng. Fathers EU family refused saying that son was sentensed 4 month on 24.11.10 and he doesnt excise the rights. but he was released on 24.11.10. my brother started working in dece2010 again now. any expert can advice either to re-apply OR appeal for this . please urgent & VERY URGENT.

Post by **Obie** » Wed Jan 12, 2011 4:26 pm

If your brother had secured Permanent Right of Residency before his Prison Sentence, then his residency is not subject to any condition, such as being required to be a qualified person inorder for the family members to qualify for residency.

However, if your brother had not been exercising treaty right before his prison sentence for 5 years, then his residency is deemed broken by prison sentence, and he is not considered as exercising treaty rights, and his family members will not qualify for residency. I hope this make sense.

One has to look at the whole circumstance before making a conclusion as to whether or not the Home Office was correct.

On the face of your brother's history, that you have provided, it seems they might be wrong.

majaseem · Post by **majaseem** » Mon Jan 17, 2011 11:48 am

Hi Obie GURU

Thank you so much for your kind and helpful comment. It reassures us that we can make an fresh application or appeal.

We have appealed now.

I am not clear on you reply you said "secured Permanent Right of Residency" what does this means ? please . because he is living and working in UK 5 years . his wife is non EU and she got family permit through my brother as well.
Bu on the refusal for father letter purely says since 24.12.10 the sentance causes . because he got sentanced and back now and working do the HO got rights to refuse father 's application.

sorry my internet was down for 1 week .I could reply last week.
waiting for a respond.

majaseem · Post by **majaseem** » Wed Dec 21, 2011 12:03 pm

Hi Obie,
Thanks very much for your interest and we made appeal for 1st refusal and lawyer said to withraw the appeal and made a fresh application and we did so. that is again refused for the new reason which is i mentioned on the new topic
"There is no evidence that father is financilay dependant on EEA National in the UK and that and that he meets his daily living needs."

Please help with your experience and this this the lawyer says to fight in the appeal.
thanks again

majaseem · Post by **majaseem** » Wed Dec 21, 2011 1:01 pm

Here is my father's case again

My father (70 years old) applied 2nd time in september 2011 as EEA Family member of his French citizen son(my brother) who is living and working in uk and HO has refused the application in december 2011 saying that "There is no evidence that father is financilay dependant on EEA National in the UK and that and that he meets his daily living needs."

We have decided to appeal again . please help by giving me advise and comments URGENTLY please. any ground of appeal on this please .further more father had a by pass surgery last week and we have decided not to tell him at this situation . we got really upset. our lawyer says he got confidental winning the appeal and we have spent a lot of money as well.

Thanks Obie and others

Post by **Obie** » Wed Dec 21, 2011 1:48 pm

I really dont know the circumstamce of your father, as i have not seen the evidence supplied. He does have a compelling case though in light of the surgery.

Even if he does not qualify under Regulation 7, they should have given consideration under regulation 8.

Even under the immigration rules read in line with article8, i think he should have a reasonable chance.

I am not sure your Solicitor is getting his hands dirty. Does not seem to me he is doing z good job

majaseem · Post by **majaseem** » Wed Dec 21, 2011 2:18 pm

Dear Obie,
Thanks very much again and the documents we submitted along with the form were,
French EEA Passport
2 birth certificates
Payslips
Employers letter
NHS card and letter (proof for living the same roof)

What can you suggest further on this ( DOCS to bring for court etc), genuinely father lives with EEA National son and look after him and everything (buy clothes, foods , given a seperate room in the house etc), however how can we proof this . as you said I have less confident with the solicitor now. Solicitor's argument is if living in the same roof no need to proof the dependancy. I will add the surgery document and,

Further on the refusal letter says, This decision does not breach of Article 8 of Human rights.

Please give some advice and help to keep our Dad with us .
thanks

Post by **Directive/2004/38/EC** » Wed Dec 21, 2011 3:46 pm

majaseem wrote:My Brother is a French citizen and he works in uk for over 5 yrs and settleted in uk with wife and 3 childrens. father came to uk to Visit him and he kept him in uk as he is Heart patient. applied EU Family permit for him in july2010. my brother being arrested for Licencing offence 16.09.2010 and was in custody and released on 24.11.2010 on the hearidng. Fathers EU family refused saying that son was sentensed 4 month on 24.11.10 and he doesnt excise the rights. but he was released on 24.11.10. my brother started working in dece2010 again now. any expert can advice either to re-apply OR appeal for this . please urgent & VERY URGENT.

If your brother is presently working in the UK, then I do not see why the father can not just reapply.

Obie, would this be an issue of UK law applying because it is an OFM?

I find the positions of OFMs very confusing!

majaseem · Post by **majaseem** » Wed Dec 21, 2011 4:10 pm

Dear Sir/Madam,

Thank you very much for your reply and "yes" my brother is still working and living in uk .

It states on the refusal letter that we can reapply or appeal ,however the reason for the refusal is that father living with his son (same roof ) and still we need to proof the financial dependancy and even we reapply HO can refuse under the same ground. If both living same house and son is paying rent , house expenses etc,

If we reapply it will take over 6 month again and they may refuse on the same ground again ??

Please advise us .

Post by **Obie** » Wed Dec 21, 2011 5:11 pm

The thing about the OFM route "Directive" is that the father is expected to have lived in another country with the EEA national (son) prior to entering the UK. There is no point in mentioning the dependant in another country aspect because if the father is unable to show dependancy in the UK and overseas for the purpose of Regulation 7, i am not convinced he will be able to do so for Regulations 8.

However there is another aspect of Regulation 8 which originates from Article 3(2a) of the directive 2004/38EC, and it states if the non-EEA nationa has medical condition which strictly require the care of the EEA national.

Looking at the above provision, i believe the OP's father should succeed, or at least the Homeoffice should have given consideration to that before refusing the application.

The fact that they did not do so, will in essence mean the decision is not in accordance with the law.

I believe under paragraph 318 of the immigration rule, the father ( a man over 65) would have meet the requirement for ILR, therefore he should qualify under the EEA regulations, as he is someone who will meet the requirements of the immigration rules other than for Entry clearance.

majaseem · Post by **majaseem** » Mon Feb 20, 2012 1:10 pm

Hi Obie and all others,

Good news. Father's appeal is allowed last week . Thanks very much for and special thanks to Obie who was very much helpful!!. our solicitor said we need to wait if HO appeal against. I was on the hearing as well and it really went smooth and our solicitor give good points and no cross from HO Rep. Thanks for our solicitor as well and finally for the this forum in total.

Darya · Post by **Darya** » Thu Mar 08, 2012 2:10 pm

Hello Majaseem,
Congratulations with winning your case. At the moment I am in the process to apply for EEA family permit for my parents....could you please advise me a good lawyer who can help me with that? Many thanks!

Post by **Obie** » Fri Mar 09, 2012 1:48 am

majaseem wrote:Hi Obie and all others,

Good news. Father's appeal is allowed last week . Thanks very much for and special thanks to Obie who was very much helpful!!. our solicitor said we need to wait if HO appeal against. I was on the hearing as well and it really went smooth and our solicitor give good points and no cross from HO Rep. Thanks for our solicitor as well and finally for the this forum in total.

Congratulation Jaseem. I missed your post. I am pleased for your dad.
I am doubtful HO will appeal it, except judge erred in law, and the err is material to his/her conclusion.

majaseem · Post by **majaseem** » Mon Mar 12, 2012 12:34 pm

Dear Darya,
Thanks and The Solicitor who took our case is in Sudbury near wembley , I suggest to give more detail about your father's case to this forum and you get advise from seniour members like Obie and others . Obie helped me a lot with my fathers case as well and you will get good sense of it . it is you and your father has to win the case.

Please do not hesitate to ask more question.

naija99 · Post by **naija99** » Sun Jul 01, 2012 8:29 am

I was just reading the above posts and noticed that Obie asked the question as to whether PR was granted to the EEA national and if it was then he is not subject to any condition.

Does this apply in the case where the EEA national has PR and is still in prison?

Does it apply if the non EEA family had a 5 yr RC and wishes to apply for PR but the EEA national who has PR is currently serving a 4 year prison sentence. UKBA has sent the application back stating that he cannot be exercising treaty rights as he is in prison.

Post by **vinny** » Sun Jul 01, 2012 11:18 am

If he already has PR, then 15(2), subject to 19(3)(b), will be applicable. Else, imprisonment will break his eligibility for PR.

naija99 · Post by **naija99** » Sun Jul 01, 2012 3:01 pm

Ok, so let me get this right...he already has PR so as you say Vinny, he cant lose it unless he leaves the UK for two years or if the government want to remove him on grounds of public policy.

So if neither of the two above apply, can a non EEA family member successfully apply for a PR whilst the EEA national is in prison?

naija99 · Post by **naija99** » Sun Jul 01, 2012 3:14 pm

Sorry, I've read the other links you kindly posted. The amendments clearly state an EEA national prisoner cannot exercise free movement rights. So does this still apply if they have PR because I thought PR meant there were no conditions attached?

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Refused EEA family permit for father of EEA citizen :URGENT