EEA Extended Family Application refused under Regulation 8

[dkbeam]

Hi Everyone,

I need some info for my mother first refusal letter for EEA FP as extended family member. I an EU national but living in Hong Kong for now. I came home at about 2012 and living with my mother, brother, sister-in-law and their son in my mother's apartment. I left for UK last year for 6 months and came back to Hong Kong this Feb and still living with my mother, brother, sister-in-law, their son and new born baby. I was thinking to move back to UK with them. I am not married and not previous marriage and no kids. Pretty much my brother's family and mother are the only family I have for now. I have been giving them money for past few years as part of the household expense each month and I have bank statements to show all the transactions.

I know my mother and brother's family would not qualified under Regulation 7. I thought they would be under Regulation 8 of The Immigration (European Economic Area) Regulations 2006 (http://www.legislation.gov.uk/uksi/2006 ... ion/8/made) in 8(2)(a).

Under 8(2)(a), it said "the person is residing in an EEA State in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;"

I sent in my mother application because my brother's son passport expired. My mother got a refusal and I am thinking if I should appeal it or send in a further application instead. The decision in the letter stated that is based on Regulation 8 so I was not far off my guess in the first place about my family would not qualified under Regulation 7.

The ECO in the refusal letter mentioned that my mother is living with another son under the same roof. and she has other financial mean. Also, she is not wholly or mainly financially dependent on me as an EEA national. Additionally, my mother is a dependency of necessity rather than choice. Therefore, they refused my mother application and now I am putting my brother's application on hold until I can get more information for my mother's application.

I have been searching online and the UK Gov website. It always mention 8(2)(a) like I mentioned above. It never mentioned if "is a member of his household" must be financially depending on EEA. Does anyone know if the EEA FP as extended member must be financially depending on the EEA sponsor if the applicant is already a household member already? I have been living with them for past few years other than I went to Uni in UK for few months. I believe that my mother, brother, sister-in-law and their sons must be member of my household. If so, can anyone share the link? Also, should I appeal for the refusal or just put in another application with further document support because it mentioned in the refusal letter that "you may alternatively wish to submit a further application".

Thank you.

[noajthan]

Mother is a direct family member if financially dependent on you - she is not an EFM.

HO is in breach of EU case law by refusing a FP based on their flawed concept of dependency by choice over necessity.
Dependency needs to be proved as a matter of fact; motive does not come into the picture.
See case law of Lim, Reyes and Jia.

Brother would be an EFM.
The household referred to would have to be your household ie with you as head of household. Not anyone else's household.

Related cases - may help you formulate your response:
http://www.immigrationboards.com/immigr ... m#p1380990

http://www.immigrationboards.com/europe ... 10945.html

[Noetic]

Additionally, my mother is a dependency of necessity rather than choice.

How bizarre. Surely that's the only genuine kind of dependency in this case - if it was by choice by all means reject but rejection based on necessity is just odd?

[noajthan]

Additionally, my mother is a dependency of necessity rather than choice.

How bizarre. Surely that's the only genuine kind of dependency in this case - if it was by choice by all means reject but rejection based on necessity is just odd?

Case law has determined that 'motive' behind dependency (also the dependent person's ability to work, level of subsistence in home country & etc etc) is immaterial.
That is the beauty and elegance of free movement.

[dkbeam]

Mother is a direct family member if financially dependent on you - she is not an EFM.

HO is in breach of EU case law by refusing a FP based on their flawed concept of dependency by choice over necessity.
Dependency needs to be proved as a matter of fact; motive does not come into the picture.
See case law of Lim, Reyes and Jia.

Brother would be an EFM.
The household referred to would have to be your household ie with you as head of household. Not anyone else's household.

Related cases - may help you formulate your response:
http://www.immigrationboards.com/immigr ... m#p1380990

http://www.immigrationboards.com/europe ... 10945.html

Hi all,

Thank you for your reply. Well, my mother would fall within EFM as well because I know that it is very hard to proof that if my mother is only depending on me. I know if my mother needs to be qualified under FM instead of EFM, she has to fully depending on me. Therefore, I put her under an application as EFM and the ECO made the decision under Regulation 8 which I was expecting. Also, I forgot to mention that they also questioning that why my mother has other money transactions showing up in her bank account even tho she is retired. Therefore, they replied to me that she is not wholly or mainly depending on me and refused my application.

Funny enough, I found the following in the home office website:

https://www.gov.uk/government/publicati ... egulations

It said in 2.9 "Extended family members must be wholly or mainly financially dependent on the EEA principal to meet his or her essential needs in order to qualify for an EEA family permit (durable partners do not need to provide evidence to show dependency on the EEA national). Emotional dependence to the EEA national would also be expected in order for an extended family member to qualify for an EEA family permit."

But under the guidance issued by HO

https://www.gov.uk/government/uploads/s ... _clean.pdf

In the page 20 of the guidance mentioned evidence of dependency can be membership of the EEA national household outside or inside UK. I am confused by publication about EFM must be wholly or mainly financially dependent on the EEA in the publication under EUN02 and evidence of dependency under the guidance.

It does not really tell me if being a member of my household needs financial dependency on me or not. Does the ECO go by the publication or the guidance. If they refused my mother application under the guidance in the above pdf file, I was right about my mother is entitled for an EFM, right? Any advice on this please?

Thanks again!

[noajthan]

Hi all,

Thank you for your reply. Well, my mother would fall within EFM as well because I know that it is very hard to proof that if my mother is only depending on me. I know if my mother needs to be qualified under FM instead of EFM, she has to fully depending on me. Therefore, I put her under an application as EFM and the ECO made the decision under Regulation 8 which I was expecting. Also, I forgot to mention that they also questioning that why my mother has other money transactions showing up in her bank account even tho she is retired. Therefore, they replied to me that she is not wholly or mainly depending on me and refused my application.

Funny enough, I found the following in the home office website:
...

But under the guidance issued by HO

https://www.gov.uk/government/uploads/s ... _clean.pdf

In the page 20 of the guidance mentioned evidence of dependency can be membership of the EEA national household outside or inside UK. I am confused by publication about EFM must be wholly or mainly financially dependent on the EEA in the publication under EUN02 and evidence of dependency under the guidance.

It does not really tell me if being a member of my household needs financial dependency on me or not. Does the ECO go by the publication or the guidance. If they refused my mother application under the guidance in the above pdf file, I was right about my mother is entitled for an EFM, right? Any advice on this please?

Thanks again!

You and 'they' (the caseworkers) have to go by the law (and case law).

The map is not the territory - the guidance (or some Gov UK webpage) is not the law.

Even for FM, dependency does not have to be 100"%. It could be 50%. For essential daily needs.

For EFM, as per EU law, its about dependency OR membership of household (or, in some cases I suppose it can be both).

[dkbeam]

Hi all,

Thank you for your reply. Well, my mother would fall within EFM as well because I know that it is very hard to proof that if my mother is only depending on me. I know if my mother needs to be qualified under FM instead of EFM, she has to fully depending on me. Therefore, I put her under an application as EFM and the ECO made the decision under Regulation 8 which I was expecting. Also, I forgot to mention that they also questioning that why my mother has other money transactions showing up in her bank account even tho she is retired. Therefore, they replied to me that she is not wholly or mainly depending on me and refused my application.

Funny enough, I found the following in the home office website:
...

But under the guidance issued by HO

https://www.gov.uk/government/uploads/s ... _clean.pdf

In the page 20 of the guidance mentioned evidence of dependency can be membership of the EEA national household outside or inside UK. I am confused by publication about EFM must be wholly or mainly financially dependent on the EEA in the publication under EUN02 and evidence of dependency under the guidance.

It does not really tell me if being a member of my household needs financial dependency on me or not. Does the ECO go by the publication or the guidance. If they refused my mother application under the guidance in the above pdf file, I was right about my mother is entitled for an EFM, right? Any advice on this please?

Thanks again!

You and 'they' (the caseworkers) have to go by the law (and case law).

The map is not the territory - the guidance (or some Gov UK webpage) is not the law.

Even for FM, dependency does not have to be 100"%. It could be 50%. For essential daily needs.

For EFM, as per EU law, its about dependency OR membership of household (or, in some cases I suppose it can be both).

Noajthan, thx for your quick reply. I am abit lost, so in that case, I should still apply for my mother as FM instead of EFM then? Also, I missed that bit about you have mentioned above the household bit ------->"Brother would be an EFM.
The household referred to would have to be your household ie with you as head of household. Not anyone else's household."

If I could not workout the dependency bit or my mother. From what you mentioning about household, does it mean my mother is not a member of my household?

I am outside UK. Should I just submit a new application for my mom or should I apply for an appeal instead?

[noajthan]

Noajthan, thx for your quick reply. I am abit lost, so in that case, I should still apply for my mother as FM instead of EFM then? Also, I missed that bit about you have mentioned above the household bit ------->"Brother would be an EFM.
The household referred to would have to be your household ie with you as head of household. Not anyone else's household."

If I could not workout the dependency bit or my mother. From what you mentioning about household, does it mean my mother is not a member of my household?

I am outside UK. Should I just submit a new application for my mom or should I apply for an appeal instead?

You have a case to appeal as HO has erred in law, on several counts.
If you just apply again you are likely to be refused again on the same flawed grounds.

My understanding is mom is an FM. That is, if you have rock-solid proof of her dependency (of up to 50% of essential needs).
You don't have to justify motive.
She doesn't have to "get on her bike and find a job" (or prove why she cannot) etc etc.
She doesn't have to be living at subsistence level on a pauper's rations (and be grateful).

Refer to Lim case; (from memory) in that case the applicant/appelant owned her own house and had a reasonable pension fund to boot.

For EFMs, people (relatives) can't just live in some random household that you happened to live in as well and then claim to be your dependent on that basis.
So, yes, in context of EFM and household, my understanding is you would have to have been (or be) the head of your household.