EEA4 refused - lack of proof of exercising treaty rights

[djgill]

Hi,

I am an EEA national (German) living & working full-time continuously in UK since 2006. My mother (non EEA national) has been living with me since November 2008. She came on a EEA Family Permit and received her Residence Document in 2009, this expires on 21.08.14.
She applied for a PR on 28.05.14 having lived here with me for more than five years. We sent her passport, my German ID, my pay slips since 2006 (without gap), P60 (except for one year as couldn't find it), council tax bills for all years.

COA was received on 09.06.14. BUT we received letter from HO on 10.07.14 REFUSING PR on the following grounds:

"Along with your application you submitted evidence of identity, relationship, and evidence that your EEA national sponsor is exercising free movement rights. A full consideration has been given to your application.
In line with 7(1)(c) of the Immigration (EEA) Regulations 2006, to be treated as a family member of an EEA national you must be 'dependant direct relatives in her ascending line or that of her spouse or civil partner'.
Unfortunately, you have not provided sufficient evidence to show that you are financially dependant on your sponsor or that you are living with your EEA national sponsor.
There is no evidence of monetary dependency as you have not submitted bank statements in your name or any other evidence that could show this. Furthermore, there is no evidence of cohabitation thus this department is unable to verify that you are currently a member of your sponsor's household.
As a result this department is unable to confirm you are a dependant family member of an EEA national. For this reason your application fails to meet Regulation 7(1)(c)of the Immigration (EEA) Regulations 2006 and your application for permanent residence has been refused under regulation 15(1)(b) of the Immigration (EEA) Regulations 2006 ".

They have given a right of appeal within 10 business days.

But my own judgement from their refusal letter is that I have not submitted anything to prove my mother was staying together with me - hence the refusal.

My question now is - should I appeal or just write to the case worker and ask for reconsideration by sending bank statements for my mother showing same address as mine (I have some intermittent statements for 2010, 2012, 2013 & 2014). I also have letters from DWP regarding her pension credit which also mention the same address as mine. Would sending these make them reconsider their decision?

The other important question - should we simultaneously appeal (costs £140 and takes a long time)?

Any advice would be appreciated!

Rgds.

[lake1]

Hi,

I am an EEA national (German) living & working full-time continuously in UK since 2006. My mother (non EEA national) has been living with me since November 2008. She came on a EEA Family Permit and received her Residence Document in 2009, this expires on 21.08.14.
She applied for a PR on 28.05.14 having lived here with me for more than five years. We sent her passport, my German ID, my pay slips since 2006 (without gap), P60 (except for one year as couldn't find it), council tax bills for all years.

COA was received on 09.06.14. BUT we received letter from HO on 10.07.14 REFUSING PR on the following grounds:

"Along with your application you submitted evidence of identity, relationship, and evidence that your EEA national sponsor is exercising free movement rights. A full consideration has been given to your application.
In line with 7(1)(c) of the Immigration (EEA) Regulations 2006, to be treated as a family member of an EEA national you must be 'dependant direct relatives in her ascending line or that of her spouse or civil partner'.
Unfortunately, you have not provided sufficient evidence to show that you are financially dependant on your sponsor or that you are living with your EEA national sponsor.
There is no evidence of monetary dependency as you have not submitted bank statements in your name or any other evidence that could show this. Furthermore, there is no evidence of cohabitation thus this department is unable to verify that you are currently a member of your sponsor's household.
As a result this department is unable to confirm you are a dependant family member of an EEA national. For this reason your application fails to meet Regulation 7(1)(c)of the Immigration (EEA) Regulations 2006 and your application for permanent residence has been refused under regulation 15(1)(b) of the Immigration (EEA) Regulations 2006 ".

They have given a right of appeal within 10 business days.

But my own judgement from their refusal letter is that I have not submitted anything to prove my mother was staying together with me - hence the refusal.

My question now is - should I appeal or just write to the case worker and ask for reconsideration by sending bank statements for my mother showing same address as mine (I have some intermittent statements for 2010, 2012, 2013 & 2014). I also have letters from DWP regarding her pension credit which also mention the same address as mine. Would sending these make them reconsider their decision?

The other important question - should we simultaneously appeal (costs £140 and takes a long time)?

Any advice would be appreciated!

Rgds.

The application wasnt refused for lack of exercising treaty right as you suggested, far from it, am sure if you as the EEA national apply for PR using EEA3, based on the information you have supplied above it will be issued.

You need to prove that your mother is financial dependent on you for the application to be successful, this is the sole reason why the application was refused.

As she was already accepted as a family member because you said she had a RC am not sure they can now say she isnt again, am not sure on this maybe someone with more expertise can shed some light on this.

All the best.

[djgill]

Hi lake1,

Appreciate your reply. But I think the important part of the HO's letter of refusal is

''or that you are living with your EEA national sponsor''.

- I infer this because I did not enclose anything to prove my mother was living together with me in the same household. I can do this now by way of bank statements in her name with the same address as mine. We have obtained the statements for the last almost five years online.
I am also going to try and obtain a letter from the GP surgery mentioning she is registered with them and showing her address.

I do not think my mother has to be 'financially' dependant on me - just dependant should be good enough, isn't it? She anyway receives pension credit but I am still responsible for her and she is thus dependant on me.

[rosebead]

You have to show that your mother is reliant on you for material support for her essential needs (at least that she had been anyhow in her country of origin or the country that she had come from (Case C-1/05 Jia) ). It's not clear from ECJ case law whether this situation of dependency must continue in the host State.

Material support can be regular remittances if she doesn't live with you. Otherwise, material support can be shown by the fact that she is a part of your household where you are paying for everything. The UK expects that your mother should be "wholly" or "mainly" dependent on you, even though ECJ case law contradicts this (Case 316/85 Lebon). In fact if your mother is just partially dependent on you, that is still dependency.

You could ask for a reconsideration and send in extra proofs, or you can appeal and re-apply both at the same time.

[djgill]

Spoke to one of the guys at HO and asked for clarification about the exact reason for refusal. He said there was no evidence of my mum being dependant on me (financially) and living with me.
Well, I told them she is as a matter of fact living with me & is dependant on me as I do not charge her for rent, clothing, food or any other day to day needs. Plus as she an elderly person (71 yrs) and also doesn't keep good health, she relies on me and my family for looking after her. It is a separate matter that she receives pension credit (having passed the habitual residence test). The HO guy was surprised she was receiving pension credit and said she shouldn't be receiving this but he is of course wrong.
I did not send any evidence of her living with me (my fault) with the application but have now obtained letter from GP saying she is registered with them (with same address as mine) and attends appointments when required. I also have bank statements in her name (with same address as mine). I can send these to prove she is living with me. I will also send letters from DWP regarding pension credit payments.
I asked if they would then re-consider the refusal but he said the chances are negligible. It would be better to re-apply.
I am going to make a fresh application for PR (EEA4) and not appeal.
What do you guys think?

[rosebead]

You can actually re-apply and also appeal at the same time if you want to. You can always withdraw your appeal if you are successful in your second application. It's a clear case of dependency in your situation, so I can't see how you would fail in court anyway unless the judge is a complete twit (although reading some judgments sometimes in First Tier Tribunal makes me laugh out loud), but with UKVI staff I think some of them sometimes just look for any excuse to fail an application. I would write a cover letter with your application explaining all of these things. It might be even worth thowing in a medical report from her GP to say that she is not in good health, as dependency doesn't have to be just financial, it can also be that she depends on you for physical help.

[djgill]

Rosebead,

thanks for your replies; appreciate your efforts to help.

I sent off my mum's fresh EEA4 application, this time enclosing letters from DWP covering last five years, letters from HM Govt regarding winter fuel payments, letter from GP confirming her registration with them, latest bank statement to prove current address - all this besides my own proofs of employment for last seven years e.g. pay slips, P60s, Council Tax bills. Also stated in covering letter signed by her that she is living in my home & is dependent on me for day to day personal care and other needs. And that if for any reason they cannot issue PR then RC (EEA2) be renewed.

Hope they turn around soon.

[rosebead]

Sounds fine. Hopefully she will get her EEA4 now. Some people like to do a sworn affidavit rather than just letters but I think it should be ok.

[djgill]

Hi all,

The HO has still not come back with any reply and my mother is desperate for her passport with the PR.
She needs to travel abroad for a long overdue eye intraocular lens implant. Our MP has called & written to the HO requesting for quicker processing on our behalf but they seem to be taking their own sweet time.
Does anyone have any info on how long they are taking nowadays to process EEA4 PR applications?

[Obie]

You applied in July 2014. In law they have 6 months to make a decision. So if you don't hear from them by January, then you should be concerned.

If your mum has to go overseas, you could simply book a flight, and at the airport, her passport will be given to her.

On returning, she could apply for an EEA family permit.

[ecogle]

Hi Obie,
Since OP was lived in UK for more than six years he was automatically gained PR status, again why he needs to prove treaty rights, In his case financial dependent?

[Obie]

He has to prove it, because that is what the law says.

He either has a document confirming PR, or provide proof that he has exercised treaty right for a period of 5 years.

Parents who claim to be dependent in the ascending line will need to show they have been dependent for 5 years to qualify, otherwise the requirement of Regulation 7 will not be met.

[ecogle]

Hi Obie,
Yes you are right, but it's really difficult to prove that she is dependent if she lives in the same house. I am also in same situation, in four years I might face the same situation. Please advise us how we can tackle the situation.

[BIG Dobby]

He has to prove it, because that is what the law says.

He either has a document confirming PR, or provide proof that he has exercised treaty right for a period of 5 years.

Parents who claim to be dependent in the ascending line will need to show they have been dependent for 5 years to qualify, otherwise the requirement of Regulation 7 will not be met.

Obie

In 2011, you were quoted as saying:

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Quote

Post
by Obie » Sun Oct 23, 2011 11:27 pm
mcovet, both case laws deals with your question.

Miss Lebon claimed the minimex in Belgium, where her french father had worked, it was suggested that she should loose that status as it could be argued she was dependant on the state, the court rejected that argument, saying this will preclude people who are rightly entitled to it from claiming it, and that the status of Dependant family member should be assessed without regards to whether or not they are in receipt of benefit.

Mrs Pedro was also a pension credit case, and the right of residence if i recall correctly. Both of this deals with the issues under debate.

It was stated in the case of MR,( The cases of OFM referred to ECJ) that dependent family members only need to should continued biological or emotional connection, whiles dependent OFM have to demonstrate dependency for the duration of the 5 years. This is one of the questions waiting to be answered.

Therefore as things stands, HO policy is not to require financial dependency from dependent family member for 5 years but it is their policy for OFM to meet these criteria.

Furthermore, both OFM and family members could also qualify, as you correctly pointed out, if they can show they were part of the Union Citizens household during the relevant period. I don't think this will be particularly difficult to do .



Please could be more specific with your advice or suggestions?

Big Dobby

[Casa]

Why have you dug up an inactive thread which is 4 years old and the member who opened the topic hasn't visited the forum since Sept 23, 2014

[BIG Dobby]

Why have you dug up an inactive thread which is 4 years old and the member who opened the topic hasn't visited the forum since Sept 23, 2014

Casa

The answer is: because they are misleading. Obie said they could in 2011 and in 2014 the opposite.

Those threads are there for people to make reference. If it is old as you stated then I defer to
your position as the moderator to close it down.

Apologies if I revived an old thread.

But the fact remains that dependent family members (who were dependent from their country of origin) do not need to show continued dependency (membership of a household will suffice) while in the host member state and are entitled to the same benefit as the EEA national as long as they are exercising free movement rights