EEA Extended Family Member (Brother in LAW)

[testedinfire]

Dear All,

I apologies if a similar post already exists but I couldn't find anything relevant so thought will post my case and would be grateful if one of you will be kind enough to answer.

I hold an EEA National Family residence visa (Pakistani National) and married to my wife who is an EEA National from Latvia.

We have been married for 3 years and been living together from the last 5 years.
My brother [Pakistani National]& (My wife's brother in law in relation) has been living with us from the last 5 years as well.

His history

• He entered UK on Tier 4 student visa (Masters degree) Working part time

• Switched to Tier 1 Post study work visa (Worked full time)

• Then switched back to Tier 4 student visa to do an additional Masters degree (Which he completed now).

His visa is now running out and I am in desperate need of help if some one can guide on whether we can apply for an extended family visa for him so he stays with us. He has become an important part of our lives.

Some facts:-

• When he was studying he was working part time and when on PSW he was working full time.

• My brother has never over stayed on any of his visa's for any country including UK's

• He also have valid visitor visa for America and expired schengen visa. (Proving he has a good immigration history)

• No Criminal record in any country for all three of us

• All three of us have same registered GP on same address from the last 5 years.

• All three of us have same address on Bank statements, payslips, employers address etc for the last 5 years.

• Myself or my wife have never transferred him any funds as I pay for his rent, car insurance etc directly because he lives with us. We do have last 5 years tenancy agreements, water bills, internet bills with his name on them. (Some documents only he have his names such as water bills etc) but I was paying for the bills.

• We also have lots of Photos from our weddings, new years events over the last 5 years, family events birthdays pictures, and also international trip to Pakistan this year because he got married and have wedding picture for mine and his wedding. (My wife attended all the functions)

• I am working and earning £30K and my wife is earning approx £14K.

• We don't have as such great savings yet but working on it because I have been supporting my brother and paying his bills etc

Thanks in advance.

[secret.simon]

That is a tricky question.

Chapter I, Article 3, Paragraph 2(a) of the Directive 2004/38/EC states that the following are also beneficiaries of the directive

any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence...

Likewise, Regulation 8 (2)(a) of the EEA Regulations states

(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and—

• (a)the person is residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of his household;
  (b)the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
  (c)the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.

It seems to me that your brother does not meet the requirements of 8(2)(a) or 8(2)(c), which is dependent on 8(2)(a).

[noajthan]

...

It seems to me that your brother does not meet the requirements of 8(2)(a) or 8(2)(c), which is dependent on 8(2)(a).

+1

Questions & findings from Bigia seem relevant here; Bigia and Ors v Entry Clearance Officer (2009) EWCA Civ 79

where an extended family member is dependent on an EEA national, or is a member of the EEA national’s household then consideration must be given to whether the EEA national would be discouraged from exercising their treaty rights if the extended family member did not have the right to join or accompany them in the UK;

in situations where an extended family is financially dependent on an EEA national there is no reason why the EEA national’s movement to the host member state would be discouraged;

the EEA national would only be deterred in certain circumstances;

the EEA national and the extended family member must have been present in the same country and that country must be the one the EEA national has most recently moved to the UK from

the applicant must show very recent evidence of the dependency or membership of the EEA national’s household

Where did your wife live before UK?
Was brother (her brother in law) a member of your wife's household in that country?

Your chances probably hinge on making a case around this point:

the EEA national would only be deterred in certain circumstances

Playing Devil's Advocate on behalf of the HO, the HO would likely contest the dependency based on this:

where an extended family member is dependent on an EEA national, or is a member of the EEA national’s household then consideration must be given to whether the EEA national would be discouraged from exercising their treaty rights if the extended family member did not have the right to join or accompany them in the UK

Interestingly, if your wife has plans to return to Latvia she could probably make a case that brother is a member of her household;
ie based on you all having lived in UK for 5 years.

[Obie]

Bigia is no longer good law.

[secret.simon]

Bigia is no biggie any more?

[testedinfire]

Thanks for the reply to all.

My wife and I are planning to live in UK.

[chriskv1]

Bigia is no biggie any more?

You couldn't resist could you hahaha

[noajthan]

Bigia is no longer good law.

Obie, Bigia, or at least thinking along such lines, appears to be at the heart of current HO guidance.
(If indeed HO guidance has a heart).

I understand guidance is not the law but it is likely to be a hardpressed caseworker's first port of call.

If push comes to shove can OP invoke Pedro ?
(although in that case the applicant was a direct family member without prior dependency before life in UK, not an extended family member).

In other words, can dependency as a matter of fact, here & now be relied upon (and not dependency due to history)?

[Obie]

The reference to the fact that the non national dependent and the EU citizen must have lived in the same country for that non national to fall into regulation 8, that is very wrong in law, and that part of Bigia is no longer good law and must not be followed in the light of Rahman C-83/11.

Pedro can only be availed of by family members under Regulation 7.

[testedinfire]

The reference to the fact that the non national dependent and the EU citizen must have lived in the same country for that non national to fall into regulation 8, that is very wrong in law, and that part of Bigia is no longer good law and must not be followed in the light of Rahman C-83/11.

Pedro can only be availed of by family members under Regulation 7.

Hello All,

So an update about my query. I went a spoke to a very good attorney in North London.

Her advise was the following:-

My brother entered UK on Tier 4 then went on Tier 2 PSW and then back to Tier 4 as student current visa, Convincing home office will be very difficult as they will see his application as an intention to stay in UK.
So applying from UK will buy him only 5 - 6 months minimum and the success of the case based on my facts is less than 50%.

Her suggestion is that my brother should go back to his origin of country Pakistan, I and my wife then needs to show financial dependencies i.e money transfer receipts or bank statements etc is his account for a minimum of 12 months and then he should apply for an extended family member visa from Pakistan. (Considering that he is granted a visa he will be allowed with a permit of 6 months min)

He then can apply for a longer residence permit of 5 years once his 6 months entry is about to expire within UK. That is the only solution for him.

Second solution that she suggested was if my brother can find a job of Tier 2 Sponsor visa which is off course next to impossible now a days.

I thought I will update every one over here as well incase some one else might have similar case to mine.

I have lost the hope already of keeping him here... but good luck to anyone who is still trying in a similar case.

[Obie]

I don't normally say this, but i believe the advocate may be correct in many aspect of the advise that you were given.

You and your wife may well wish to move with you brother to another memberstate and move back to the UK, but the returning of coming back after returning home seem to me to be a problematic option. Given the current state, and the number of refusals i see in Extended family member cases, It is likely that he will fail in 12 months, or 12 months will be 24 or 36 months.