EEA FP refused: Moscow

[a.s.b.o]

Hi guys

we have received a response saying that the application for the EEA FP on behalf of my mother and her husband has been refused. I am totally gutted -(((((((

I believe that my course of action is

a. ask for EC manager review
b. re-apply
c. appeal

It is also my understanding that A and B are the most effective. Is that correct?

Moreover, a quick discourse analysis of the refusal indicates that our bundle was not examined in detail (and also, given the timeframe - http://www.immigrationboards.com/viewtopic.php?t=112106). What would be the best course of action?!

Thank you

[Directive/2004/38/EC]

What I did would depend on the reason for the refusal.

[a.s.b.o]

I put the decision to view. Comments will be welcomed

https://www.dropbox.com/sh/tw6r8foukn5zppa

[a.s.b.o]

ANYONE ?! PLEASE!

[EUsmileWEallsmile]

In this case, it's all about demonstrating that the parents are dependent on the EU citizen or their spouse. I'm not familiar enough with what exactly what this means, but suggest you read this (page 6 onwards) if you haven't already done so.

http://eur-lex.europa.eu/LexUriServ/Lex ... FIN:EN:PDF

Also this (page 4)

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

[keffers]

The first thing that struck me was the maths:

It states a rental income of $5400pa = £8528pa at $1.58 to the pound. My reckoning is £3148pa.

Living costs of £8875 per year with a contribution of £5515 from the EEA national means the main portion of income is from the EEA national. Therefore mainly but not wholly dependent? Mainly is sufficient to satisfy teh regulations.

Without that contribution would your mother/ step-father be able to meet their essential living needs?

Others may know better but I think under EEA regs, dependency need not be out of neccesity but can be as a result of choosing not to work (unlike the immigration rules where dependency must be of neccessity and not choice)

[a.s.b.o]

Gents, thank you. You picked up straight away smth that I spent all day on. Dont consider this to be a cheap flattery. Let me address this point by point and I will ask your suggestions -

1. Paragraph 1 - MEETING ESSENTIAL NEEDS

My parents are full dependent on me. Their sole income is what they draw from my local account and what they get from letting of the property I receive and they make use of.



2. Paragraph 2 - YOU HOLD PROPERTY IN YOUR NAME - HENCE, YOU ARE NOT WHOLLY (MAINLY IS MISSING HERE?!)

They acknowledge that I contributed property rights to my parents having fully paid for it in the first place. They live in this property, having no income, with an excpetion of my controbution from MY SAVINGS and MY ARRANGEMENTS TO LET another property.

in our cover letter we stated the following

"It can be noted that the EEA national purchased two properties in Saint-Petersburg (Russia) in 2005 and 2009 respectively and donated 50% of each of the property rights to the applicant, as well as allowing the applicants to live in Property 1 which is owned by the EEA national (Saint-Petersburg, xxxx), free of charge (with the exception of paying the utility bills) from 2006 onwards. The statement is supported by the attached documentation, namely deed of a gift, ownership certificates and evidence of the UFMS (Federal Migration Service of Russian Federation) registration of the applicants at this property.

Equally, it can be noted, that the applicants have no independent income apart from the EEA national’s financial contribution over the past 6 years. This is based on the long-term evidence of the attached copies of HSBC bank statements, Bank Saint-Petersburg statements and the copy of the Power of attorney. Firstly, the applicant has used and still uses a UK-issued card attached to the EEA national’s HSBC bank account to make a number of cash withdrawals in Russia and Belarus; as this proved to be costly (in terms of fees and charges), the EEA national has permitted the applicants to access the EEA national’s funds held in his Russian bank account (Bank Saint-Petersburg) by using an officially issued power of attorney. Secondly, the EEA national donates to the applicants the money received from the informal letting of the property 2 (Saint-Petersburg, xxxx) on a monthly basis over the period of the last 18 months. Bank statements provided confirm monthly lodgements. In the absent months, the money was paid to the applicant in cash. Moreover, the EEA national has made a number of cash donations to the applicants (by drawing from the EEA national’s Irish Euro bank account at Dublin airport on the day of his travel to Russia). Both applicants are registered job seekers waiting to be re-trained"

[a.s.b.o]

DEL

[a.s.b.o]

3. Paragraph 4 - FINANCIAL OUTLAY - BELIEVE THIS IS IMPORTANT FOR PROVING FINANCIAL DEPEDENCY


A. 5400 PA income from etting of the property are MY FUNDS - WHICH I DONATE TO MY PARENTS. This is easily proven by the account statements, in which one can see a lodgement and then a debit, made by my parent using the power of attorney.



B. The 8875 GBP per annum - is MY EXCESS OF EARNINGS OVER SPENDINGS (i.e. my savings). I donate them to my parents and then top-up this amount from my CURRENTLY AVAILABLE SAVINGS – currently held in my account.



C. FINANCIAL DEPENDENCY

In the references to the maintenance schedule I have outlined this for UKBA to see -

Projected expenses of the applicants are – £14391/ pa
Projected income of the applicants (surplus of the EEA national’s income over expenses) – £8875/ pa – EEA’s contribution to parents

Projected deficit of the EEA FP applicants’ budget – £5515/ pa.

Projected contribution (i.e this £5515) from the EEA’s national savings GBP account is sufficient for the 5 years, with the marginal deficit of the £2576 in Year 5

This marginal deficit will be covered from the EEA’s national existing EUR savings, if not covered by the subsequent GBP savings



D. I believe that

- both of the components of their income arrive from the EEA national
- both of the components can be traced ( IN RESPONSE TO THE “NO EVIDENCE OF WHERE THE INCOME WILL BE DERIVED FROM”), based on my employment slips ( I am paid by the university for teaching), self-employment invoices and tax-returns.


ESPECIALLY, PLEASE HELP ON THIS ONE!!

[a.s.b.o]

anyone please? I believe I have given as much details as I could get! Thank you

[Directive/2004/38/EC]

If I understand correctly, all the money your parents have has come from you. Is this true? Since when?

You paid them money. It does not matter whether they put it into their bank account, or they invested it in half the flat, or bought cases of fine wine for the basement. It has all come from you. Now that they have the fine wine in the basement, for example, they are not suddenly independent. You are not required to only give them barely enough so that they remain dependent without accumulating any savings.

I suspect you are going to have to appeal.

[a.s.b.o]

If I understand correctly, all the money your parents have has come from you. Is this true? Since when?.

Hi Directive,

thank you!!! I have a well-proven record of mainly/wholly financial dependency since 2006 and until now. Their income consists of -

1. they receive money i get from rent
2. they use my savings from my savings account
3. they use funds from my uk account

I suspect you are going to have to appeal.

do you think that EC Manager appeal will not suffice to overturn this?

Thank you! your help is very welcomed

[a.s.b.o]

Hi Directive or other gurus,

can you please comment or suggest? I am gling through tonnes of material but cannot get to a definitive document/ref to strengthen evidence which i outlined. can you please comment??????

[Greenie]

The ECM review is part of the appeal process. You need to appeal and the ECM conducts a review before a date for the appeal hearing is set.

[a.s.b.o]

The ECM review is part of the appeal process. You need to appeal and the ECM conducts a review before a date for the appeal hearing is set.

Greenie

ECM, as explained by the ECM at this post, is something that is raised through email, letter, etc.

The Appeal, through IAA is UK based and longer=timeframe thingies, isnt it?

Or do I confuse things?

moreover, from forum's experience, what are the chances of EC granted at the ECM review? Are they goign to rubber stamp previous decision or we do stand a chnace?

Thanks

[Directive/2004/38/EC]

Asbo, What are your time constraints?

I think actually you will want to go down the formal appeal route. It is also worth sending the same material to the ECM and asking for a review, but start the appeal now.

[a.s.b.o]

Asbo, What are your time constraints?

I think actually you will want to go down the formal appeal route. It is also worth sending the same material to the ECM and asking for a review, but start the appeal now.

We have no time constraints, but it would be nice to be re-united as soon as it is practically possible.

I also believe that appeal is not FREE, is that correct?

[Directive/2004/38/EC]

£60 I think, and I think you can get your money back if the appeal is granted by asking correctly in the appeal application! I actually think more people should appeal.

[Directive/2004/38/EC]

have you ever dealt with ...." we are not satisfied that the financial dependence is through necessity and not choice" argument in refusing to accept the dependence on the UKBA side when making EEA FP application?

Can you please make reference to a specific legislation or even signpost so that us applicants can address this comment more effectively. Thank you

Directive 2004/38/EC speaks of "the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)"

It does restrict the family member to be a parent, and specifically a dependent parent. But it does not restrict or proscribe the nature of the dependency.

There is no requirement that the dependent person must have a frugal lifestyle, or that it must be of necessity.

And what is "necessity"? It is a very relative term. It likely means something very different for you than for a very rich person like Donald Trump.

"Choice" is another interesting term. You are not legally bound to support your parents. It is a choice. So the financial dependence is almost always (unless there is a court order) one of "choice". But one could easily argue that for a child in a good relationship with their parents, it is in fact a necessity to support them through their old ago, even though it technically remains a "choice"

[keffers]

£80 (for each applicant) for a papers appeal - £140 each for an oral appeal.

See the following Upper Tribunal case from August 2011:

http://www.bailii.org/uk/cases/UKUT/IAC ... geria.html

(paras 41-43 in particular)

[sum1]

As Greenie said, there is now only one way to appeal which includes a review by the ECM. Your changes will solely depend on how you present your case. Keffer's link to that recent judgment and the reference to the ECIs inside are probably a good starting point but you may want to seek competent legal advice on this.

What would it mean for your parents to not have your support anymore?

[a.s.b.o]

£80 (for each applicant) for a papers appeal - £140 each for an oral appeal.

See the following Upper Tribunal case from August 2011:

http://www.bailii.org/uk/cases/UKUT/IAC ... geria.html

(paras 41-43 in particular)

Thank you, from this I gathered the following -

1. Support and dependency on the EEA national is considered only while a sponsor has been an EEA national, i.e. non-EEA nationality stage is not considered?!

2. Dependency out of choice CAN BE CONSIDERED, but would attract significantly more evidence to convince the immigration officer?!

[a.s.b.o]

As Greenie said, there is now only one way to appeal which includes a review by the ECM. Your changes will solely depend on how you present your case. Keffer's link to that recent judgment and the reference to the ECIs inside are probably a good starting point but you may want to seek competent legal advice on this.

What would it mean for your parents to not have your support anymore?

Hi Sum1

I will continue to support my parents in due course as they indeed have no independent income. I also consider making an application for an Irish visa for my mother to visit me, which will be difficult, given that her husband and elderly father will remain in Russia.

We considered her poor health as being irrelevant at the time of application but now may gather medical evidence to support our claims why they were dependent on me.

WOULD RE-APPLY WITH A NEW EVIDENCE BE A SHORTER UNDERTAKING? OR DO YOU FEEL THAT APPEAL IS THE ONLY WAY FORWARD? THANKS

[sum1]

The problem in your case is that it cannot be decided based on some set of simple rules. If you believe you can make a considerably stronger case in a reapplication then you might stand a change but that's obviously just a guess as we do not know what the internal policy of that embassy might be. If you appeal you may have to go that way to the very end but eventually it will be the judges who will make the final decision. Sorry. but you will have to do go with what you feel or go with professional help.

[keffers]

The decision of what to do has to be taken in the context of current proceedural 'policies' by UKBA etc.

My thoughts:

UK Government is under pressure to reduce immigration levels.

Its hands are tied with regard to EEA Directives.

Therefore:

Overseas posts refusal rates are monitored - therefore there is a pressure to refuse a certain percentage of applications.

eg http://icinspector.independent.gov.uk/i ... reports-2/

Extended family members are the easier target to refuse by a 'misunderstanding' or overly restrictive interpretation of how the law should be applied.

See thread started by Directive/2004/38/EC

http://www.immigrationboards.com/viewto ... outrageous

Refusals whether as a result of competence or incompetence are allowed a full right of appeal. No real harm done to genuine applicants just an elongated pocess.

But,

An appeal is now no longer free

Legal advice in the main is not free and then not cheap.

Language and financies is likely to be a barrier for many.

People under duress will have a tendancy to give-up - especially if their case is evidentially weak or a complete try-on.

If you simply re-apply, the risk is the answer might well be the same. I don't think a decision overruled by a Tribunal is a disciplnary offence so making the 'wrong' decision twice is not career threatening. Anyway, Tribunals are there to put right incorrect decisons aren't they?

For the sake of a refundable £160 - £280, might it better to have a banker in the event of another application being refused ? (you can re-apply even if an appeal is pending). The appeal of course will force an ECM review and in the event of the decision not being overturned by the ECM or a successful second application, you will have saved yourself several weeks waiting time.

If the decison is overturned you will get your money back.

Just my thoughts.