Mother's RC application is refused under EU Treaty Rights

[treefriend]

Dear Folks,
I , my EEA national wife and mother moved from the UK to Ireland almost 8 months ago. I and mother applied for Residence Cards as a spouse and permitted family members (other beneficiary either member of same household or dependent) respectively. We were given temp stamp 4s which expired this week. EU treaty department has refused my mother application on the grounds that correct documents were not supplied, however they approved my application.

We submitted following docs in support of our mother application

• UK lease and UK landlord reference letter
  EU Spouse UK Lloyds TSB bnk statement
  Fully comprehensive insurance for our mother paid my my wife
  Irish Residence proofs

Although she is heavily dependent on us, however we mainly focused on "member of same household" based
Article 3 (2) of Directive 2004/38 states:
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) 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, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b)the partner with whom the Union citizen has a durable relationship, duly attested.

have we approached it incorrectly? What we should do now go to solicitor, fill in the the review ourself and try to educate case worker about member of same household clause of Article 3 (2), or make a fresh application.

Please help us as we are worried for our mother who has no direct relative in her country of origin. She is given 15 days to submit her review before her file is passed on to Removal team.

Your help small or big would be very much appreciated.

Thanks

[jinkazama_11]

Hi
I think you should approach a solicitor. I just checked the INIS website (http://www.inis.gov.ie/en/INIS/Pages/Jo ... EU_Citizen) and documents they mentioned are

Other Family Members of EU Citizen including their parents and in-laws:
Any family member of an EU Citizen who is:
A dependent of the EU Citizen or the qualifying dependant of the spouse of the EU Citizen
or
A member of the household of the EU Citizen or a person requiring the personal care of the EU Citizen, on the basis of serious health grounds may have their application for a visa considered on submission of the following documentation:
Fully complete the online application form, and submit your signed summary application form, photographs and fee.
In addition to the signed summary application form, please also submit a signed letter of application
Passport
Evidence of their relationship to the EU Citizen
Evidence of their dependency on the EU Citizen, where applicable
Evidence that they are a member of the household of the EU Citizen, where applicable
Evidence that they require the personal care of the EU Citizen on serious health grounds, where applicable.

NOTE: The evidence required will be documentary evidence from the relevant authority or the country of origin from which he or she is arriving, certifying that he or she is a dependant or a member of the household of the Union Citizen.

According to the above note you did provide tenancy agreement and reference letter for your land lord to prove that she is a member of your household. I am not sure what other documents you should have provided unless they mean documents from her home country and not from UK.

Could you please post the full reason for refusal?

I will also check the directive and will update you.

[treefriend]

Hey jinkazama,
Thanks very much for the reply.

Main Extract from Refusal Letter
The Minister has decided to refuse your application for a residence card under the regulation. This is for the following reasons

You did not submit the necessary documents which were requested.

Evidence of relationships with the EU citizen
For the dependent parents, grandparents, and relatives in the ascending line of the spouse of the EU citizen,
-Evidence of dependency on the EU citizen, including dependency prior to residing in the state
OR
Evidence of membership of the EU citizen's household
OR
medical evidence

Therefore your application does not meet the requirements of Regulation 7(1)(b) of the Regulations (Scheduled 2) as you failed to submit the necessary supporting documentation as set out in the explanatory leaflet which accompanies Form EU1.

Before we submitted the application, We sought one-off guidance of Karen Berkeley@Brophy Solicitor. She told us that EU treaty right section dont want people to use EU directive for other family member and therefore mostly refuse application initilly. She also said Irish interpretation of the regulation added "country of orign" however eventually all "other beneficiary" cases must fall back to EU directive of 2004/38/EC.

I quote from EU directive explanatory notes available at http://eumovement.wordpress.com/2008/04 ... eficiaries
Another key phrase is “in the country from which they have come“. The phrase is quite open and covers a number of situations. For a Japanese person, it can include their original home country (e.g. Japan), a country they have recently lived in (e.g. USA) or where they currently live (e.g. France).

According to the Article 3(2) of 2004/38/EC directive, country they have come not country of origin as stipulated by the Irish version of the Regulation
Article 3(2) of 2004/38/EC directive
(a) 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, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.

According to http://ec.europa.eu/home-affairs/faq/fr ... _ec_en.pdf, ascendant family members enjoy the rights granted by the Directive when they join or accompany you and the Member States have no scope for discretion in recognition of their rights.

I studied this UK case thoroughly when making application. Reading first page would shed more light
http://www.bailii.org/uk/cases/UKUT/IAC ... geria.html

I can get medical letters from our doctor here in Ireland and submit them with the review. But clearly from the EU Directive if she can show that she is member of same household, she does not need to provide anything else. Refusal letter also does not categorically mention the exact reason just copy and paste of "did not provide the right documents".

[Xbox360]

Hi Treefriend,

Its unfortunate that your mother was refused the residence card. From the website that Jinkazama provided, and the UK case law it is wrong for the officer to refuse your mum.
Dependency is used in the current tense, and not past tense in EU law.
It would have been best if you included other evidence of current dependency eg paying for GP visits, writing a letter to say you pay for her food, and provide accomodation etc. and say she does not receive income from other sources. The 'member of household' clause in the EU directive was used with other family memebers and not qualifying family memebers. But dependency is the main criteria that will always prove that a qualifying family memeber is qualified if the officer is a cheeky type.

You should contact a solicitor. I'm not sure if you can appeal, but if you do, do not sound polite to them. It is your right, you should state the facts you have listed and the case laws and tell them that the continued refusal of your mums RC is causing you and her distress, and if she suffers any problems as a result of this, you will hold them responsible. Give them a time limit when you need the RC. ---- Ask your lawyer if they'd agree with this. But I think it is the way to go.

Xbox.

[Xbox360]

Hi,
Further to my previous post.
Adding a picture of you and your mum in your residence( outside, capturing the house number) will be a pictorial way to explain membership of your household in addition to registering her with a GP and ask GP to confirm the registration to your address.

This should be in addition to dependency.


Xbox

[gismanchester]

Dear TreeFriend. Sorry to know about your mother's visa refusal. The main application was from your wife and as a spouse you got the visa. your mother's visa was rejected and i think they are using the reason that you have failed to prove the relationship between your wife and her mother in law.
Has your wife gave some money to your mother while she was in UK? if you have this it is very helpful.

its good that you have got visa and your can now show that she is dependent on you as well.

i will recommend go to solicitor and fight against this decision

regards,


Kamran

[notrouble]

Hey treefriend,

Do I understand it correctly that you moved from the UK to Ireland, and your mother (who is a dependant of your EU wife) was recognised in the UK as a family member of an EU citizen's family/household?

From what I read, your mother's application has been refused as you did not provide any documents proving her dependency on the EU Citizen (your wife).

Did you submit things such as your birthcert to prove she is your mother?
A document from the UK proving that she has been recognised by them as a family member of an EU citizen's household?
A document showing that she lived with you on the same address in the UK?
A document possibly an affidavit from your wife confirming in writing that she is supporting your mother?

It is my understanding that while the Irish authorities can ask for specific documents to prove this dependency, they will also have to accept whichever documents you can (or have) bring together to prove your story.

Have you considered contacting SOLVIT? You would need to contact first the SOLVIT office in your home country, who will then in turn contact the Irish authorities in charge of your mother's application. I had to deal with the Irish SOLVIT Office at least twice in the last 7 years, and have to say that I had my problems sorted each time within a few months.

[treefriend]

Thanks Guys for your help so far.

I am meeting Solicitor this Wednesday and will update you here with a view that this may help someone.

Just for The record, I did submit the detailed covering letter explaining dependency and same household.

I have spoken to EU Advice center and awaiting for their response, if advised I will contact Solvit as well.

Thanks

[EUsmileWEallsmile]

If your mother is heavily dependent on you as you put it, why did you not apply on that basis? She would be a direct family member in that case.

[notrouble]

I would contact SOLVIT of your wife's home country as soon as possible. You can do this in parallel with everything else.

[treefriend]

If your mother is heavily dependent on you as you put it, why did you not apply on that basis? She would be a direct family member in that case.

Hey EUsmileWEallsmile,
We did not want to confuse case worker by applying on both basis which are in fact alternative ways to qualify as a other family member (term used in UK) or permitted family member (term used here in Ireland), family members who fall under article 3(2) of EU directive.

I am confused with your point of "If she is dependent then She would be a direct family member in that case"

My wife has written to Solvit. Based on what lawyer says, we are now planning to submit dependency documents as well. From the case link posed previously by me and extract of refusal letter clearly shows that Irish author deliberately refused her application with very vague refusal statement.

Plz dont stop your thoughtful comments.

Thx

[jinkazama_11]

If your mother is heavily dependent on you as you put it, why did you not apply on that basis? She would be a direct family member in that case.

Hey EUsmileWEallsmile,
We did not want to confuse case worker by applying on both basis which are in fact alternative ways to qualify as a other family member (term used in UK) or permitted family member (term used here in Ireland), family members who fall under article 3(2) of EU directive.

I am confused with your point of "If she is dependent then She would be a direct family member in that case"

My wife has written to Solvit. Based on what lawyer says, we are now planning to submit dependency documents as well. From the case link posed previously by me and extract of refusal letter clearly shows that Irish author deliberately refused her application with very vague refusal statement.

Plz dont stop your thoughtful comments.

Thx

There are two different categories.
EUsmileWEallsmile means you should have applied under "qualifying family members" as your mum is dependent on your wife.
But you applied under "permitted family members" by showing she is member of your wife's household.
Doesn't matter under which category you have applied, the reason for refusal is definitely vague and your mum's application is deliberately refused. I am pretty certain that her application will be successful.

Please update us as me and few others have to go through the same in near future.

[treefriend]

Thanks Guys. Clear as crystal.

Just to update you guys We got a reply from EU Advice centre who asked us to lodge the review immediately and raise the issue with the Solvit which we have done.

After reading thru the refusal letter, advice centre also confirmed that Irish authority deliberately refused the application with no clear explanation which is contrary to directive itself. Directive stipulates that any refusal must be accompanies with a clear reason.

I will update you guys when I meet my solicitor on Wednesday. I am planning to send dependency evidence as well with the review. It seemed to me Irish authority also expected dependency evidences but could not differentiate the alternative conditions for "other beneficiaries".

jinkazama_11, I am happy to share my experience which I am sure would help you and others on the same boat.

Thanks

[gismanchester]

Hi

any update / progress in your mother application?

pls share your experience.

thx

[Saffron13]

Hello Treedriend

I am curious to know whether your mother was granted a RC or not? As my mother's visa is also refused and we have submitted a review. Could you please update me what happened after you submitted your mother refusal review and how long it took them to respond back?

Thanks
Saf

[arz1986]

hi saffron

my mother rc is refused as well, i subit a review on 25 july, got 10 month stamp, refusal reson is she is not qualifying family member. can u share ur refusal reason and when did u apply for review

[CR001]

Hello Treedriend

I am curious to know whether your mother was granted a RC or not? As my mother's visa is also refused and we have submitted a review. Could you please update me what happened after you submitted your mother refusal review and how long it took them to respond back?

Thanks
Saf

hi saffron

my mother rc is refused as well, i subit a review on 25 july, got 10 month stamp, refusal reson is she is not qualifying family member. can u share ur refusal reason and when did u apply for review

Can both users please start or continue in your own topics rather than digging up and posting in one that is 4 years old.