Urgent - Need Help please - EEA Family Permit Refused

[nemo]

Guru's need some urgent advise on how to move forward -

Got a refusal in post today. The FP was for my dependent parents - Here is the decision Text -

Refusal of Entry Clearance.
Decision -
You have applied for admission to the United Kingdom in accordance with Regulation 9 of the Immigration (EEA) Regulations 2006 as the family member of a British National XX, who has been/was previously working or self-employed in another Member State.

However, you are not living with the British national in (the EEA State), nor were you living together in (the EEA state) before the British National returned to the UK as defined under the regulations. I note that you have held a UK visit visa for number of years and last arrived in UK on early/2013 as a visitor, you left the UK for Ireland without a visa via the Common travel area between the UK and Ireland and was granted admission to Ireland on Feb/2013 as a Visitor.

You later obtained an extension from Irish authorities until mid/2013, I am not satisfied that you are lawfully residing in an EEA state in which the EEA National resided and are dependent on the EEA national or a member of his/her household if you are a visitor in the EEA State.

I am also aware that your sponsors only recently move to Ireland in early 2013, set up his business at the same time, now less than 7 months later he’s chosen to move back to the UK with you and your spouse has his dependent relatives. When prior to this you and your wife where issued visit visa to the UK based on the fact that you had a comfortable standard of living in your country and lived independent life. Therefore I am not satisfied that the Regulations apply in this case.

I therefore refuse your EEA family permit application because I am not satisfied that you meet all of the requirements of Regulation 9of the Immigration (EEA) regulations 2006.

We are given right of appeal.

[nemo]

However, you are not living with the British national in (the EEA State), nor were you living together in (the EEA state) before the British National returned to the UK as defined under the regulations. I note that you have held a UK visit visa for number of years and last arrived in UK on early/2013 as a visitor, you left the UK for Ireland without a visa via the Common travel area between the UK and Ireland and was granted admission to Ireland on Feb/2013 as a Visitor.

Are they implying that because my parents initially entered Ireland on Visitor Visa and soon after that applied for EU1(Residence Card) that they are not living with me? I provided loads of document to confirm that all three of us reside at the same address.
It clearly states here - http://eumovement.wordpress.com/2007/04 ... u-citizen/

• There is no legal requirement that:
  •The EU citizen is already (or will be) living or working in a different EU member state
  •The non-EU family member holds a specific immigration visa or status. It is fine for them to have a nationally issued visa or a student visa or a visitor’s visa or even implied status
  •The family member apply in their country of origin
  •The family member resides or previously resided in the EU/EEA (This older requirement of some member states was overturned in several ECJ cases, especially Metock)

You later obtained an extension from Irish authorities until mid/2013, I am not satisfied that you are lawfully residing in an EEA state in which the EEA National resided and are dependent on the EEA national or a member of his/her household if you are a visitor in the EEA State.

Yes that was EU1 application and Irish authorities gave temporary Stamp4 while waiting for residence card. What is unlawful about this?

I am also aware that your sponsors only recently move to Ireland in early 2013, set up his business at the same time, now less than 7 months later he’s chosen to move back to the UK with you and your spouse has his dependent relatives. When prior to this you and your wife where issued visit visa to the UK based on the fact that you had a comfortable standard of living in your country and lived independent life. Therefore I am not satisfied that the Regulations apply in this case.

It doenst matter if EEA National moved to another State for this... although they seems to have removed that sentence from the UKBA website but the regulation still stands.

I therefore refuse your EEA family permit application because I am not satisfied that you meet all of the requirements of Regulation 9of the Immigration (EEA) regulations 2006.

Gurus, what do you suggest i do next?
Write to ECM or Appeal?
Also can someone help me with the ECM email address or how to request ECM to reconsider the application..?

Guidance please

[Obie]

This seems wrong. What relationship do you have with the sponsor?

Lawful residence is no longer required as you rightly stated.

[nemo]

Thanks Obie.

I as the EEA National (son of the applicants(Non-EEA National)) wrote this post. So in the context of the application, the sponsor is the Son of the applicant.
Apologies for the confusion.

We provided ample documentation to provide proof of the relationship, although i don't think the ECO is disputing the relationship.

[nemo]

Can anyone help me with the email address to the ECM, i presume there will be one in Ireland?

I have gone through the UKBA website, but can only find Postal address.

thanks in advance.

[EUsmileWEallsmile]

It would appear that they are, amongst other things, disputing dependency. What evidence was provided?

[nemo]

Hi EUsmileWEallsmile,
First thanks for the response..
We provided evidence of dependency only in the State (ireland), we provided -
Bank Statements showing regular transfer
Receipts for hearing aid that i paid for
Receipts for spectacles and i paid for.
Also the rent receipts to show i paid for them.

Any Suggestions Guru's.. ?
i am pretty stuck here. Anxious times as i am sure most of you can understand.

regards

[nemo]

My understanding behind the reasoning of the refusal is that -
the ECO is suggesting that because the applicant entered EU state as a visitor and then extended the visa, as a Visitor (incorrect assumption as the applicant didn't request an extension of Visitor Visa, rather applied for EU1 and hence given temporary leave to remain under EEA directive) , the applicant therefore cant be seen as a Dependent of or seen residing with the EU National.

Essentially ECO is assuming that the applicants current status is of visitor and hence cant be dependent on EEA National or residing with EEA National .

What do you think of my analysis above?

I am planning to on first instance write a letter to ECM, Guru's i can really do with some help with drafting up a letter to ECM , as i am not very good with Legal Lingo... Any pointers please?

[Obie]

Most of the refusal makes no sense. . What is most concerning, is the fact that they claim your parents were issued a visa on the basis that they have a comfortable life in their home country. If this is true, then the question of genuine dependency comes in.

If your parent are unable to show genuine dependency, they will find it hard to qualify as dependent family members.

Might have been sensible to wait for the Irish to issue a Residence Card.

[nemo]

Thanks Obie

What is most concerning, is the fact that they claim your parents were issued a visa on the basis that they have a comfortable life in their home country. If this is true, then the question of genuine dependency comes in.

Yes my parents applied for UK Visitor Visa back in Mar 2011 (valid for two years, ended Mar 2013). Even at that time although they showed some funds (very minimal) i was the sponsor for the Visit. It was the same visa and the Irish waiver program we used to initially enter Ireland in Feb 2013. Although the Visitor visa was issued more than 2.5 years ago and ended 6 month ago and among other things, including various dependency requirement my father has turned 65+.

I also believe according to EEA Directive the requirement of dependency is in the current EEA state not prior to coming to the EEA State.

I have good comprehensive set of docs to show - money bank transfers to parents for past 5 years.

Yes in hindsight it would have been better to wait for RC in Ireland, but then again if RC in Ireland is refused for some reason we will only get 15 days in Ireland before removal orders are issued. So wanted to have a FP before hand.

[Obie]

Well if you are exercising treaty rights, it will not be refused, and in any event you the right to apply for a review on EU4 and also to pursue Judicial Review.

Doing things prematurely is not always sensible.

But fight it out.

You could always return to UK and apply for Residence Card.

[nemo]

You could always return to UK and apply for Residence Card.

How can my parents return to UK without Visa or FP?
Just to add we are in ireland.

[wiggsy]

drive to n. ireland and then get a ferry to the mainland...

- although not strictly legal. once in the UK your in the UK... and therefore if they wish to remove you, as your right of residence comes from the EEA regs you have a right of appeal.

[Xbox360]

Hi,

I think the officer was trying to interprete surinder Singh literarily. They are saying that you are not currently in the UK with your parents to benefit from the case law. The first 'EU State' mentioned is the UK, and the second 'Eu state' is IRELAND, from reading the reasons for refusal.

Also, they are assuming that Ireland gave you a visit visa, because I imagine you didn't mention the eu residence card application pending in Ireland.

Unfortunately, Ireland will be the best to prove that your parents were dependent in their country, and then you may have to return to the UK TO APPLY FOR your parents to join you there. This is the best way to satisfy the misinterpretation of the rules by the officer. SINGH CASE WILL TAKE EFFECT WHEN YOU ARE IN UK, EVEN IF YOUR PARENTS DON'T HAVE RC.

THe story will be even better if you apply for RC AFTER you find a way to get to the Uk with your parents.

Good luck.

Xbox

[Xbox360]

Hi,

FURTHER TO MY PREVIOUS POST, You also need to show dependency in Uk prior to going to Ireland to show that your parents were not just going for a visit. It will be your responsibility to prove this otherwise the officer will assume it was for a visit. Ie you prove that your parents went to Ireland as a dependent relative under EU LAW, and are still dependent prior to your application for the eu permit back to UK.

THE CASE LAW OF SURRUNDER SINGH IS VERY SPECIFIC, you should try and meet everything. it is similiarities to the limitations in Zambrano.

Xbox

[nemo]

wiggsy
drive to n. ireland and then get a ferry to the mainland... Smile

- although not strictly legal. once in the UK your in the UK... and therefore if they wish to remove you, as your right of residence comes from the EEA regs you have a right of appeal.

Wiggy .. thanks for the suggestion... i do want to keep the status as legal as possible. So wondering what about going via the Ferry from Dublin and requesting Code1a on the port... what the boards view ?
Two problems i can see with this...
1. i dont know how easy it is to get this on port for Dependent parents.
2. If refused on port we dont have re-entry visa for Ireland

Phrase ... rock and a hard place... comes to mind !!

[nemo]

Hi Xbox

I think the officer was trying to interprete surinder Singh literarily. They are saying that you are not currently in the UK with your parents to benefit from the case law. The first 'EU State' mentioned is the UK, and the second 'Eu state' is IRELAND, from reading the reasons for refusal.

The ECO seems to have copied the text from here -

http://www.ukba.homeoffice.gov.uk/polic ... /#header23

x. The applicant is the spouse / civil partner of the British national but is not/was not living with the British national in the EEA State (Surinder Singh)

'You have applied for admission to the United Kingdom in accordance with Regulation 9 of the Immigration (European Economic Area) Regulations 2006 as the family member of a British national who has been / was previously working or self-employed in another Member State. However, you are not living with the British national in (the EEA State), nor were you living together in (the EEA State) before the British national returned to the UK. Therefore, I am not satisfied that the Regulations apply in this case.'

Also, they are assuming that Ireland gave you a visit visa, because I imagine you didn't mention the eu residence card application pending in Ireland.

Yes you are right, towards the end of the application, under more information we did write that - "We are waiting for RC in Ireland", but i think the ECO clearly missed that part and TBH it was a one liner.

Unfortunately, Ireland will be the best to prove that your parents were dependent in their country,

Do you mean on the basis of RC in Ireland we can prove they were dependent on me? Agreed but what if INIS reject the application too?

and then you may have to return to the UK TO APPLY FOR your parents to join you there.

Can i apply in UK, even if they are not in UK? on their behalf?

This is the best way to satisfy the misinterpretation of the rules by the officer. SINGH CASE WILL TAKE EFFECT WHEN YOU ARE IN UK, EVEN IF YOUR PARENTS DON'T HAVE RC.

Do you mean apply apply when i get to UK? And they wait in Ireland?

THe story will be even better if you apply for RC AFTER you find a way to get to the Uk with your parents.

The only way is FP right or am i missing something?

You also need to show dependency in Uk prior to going to Ireland to show that your parents were not just going for a visit.

I agree this is really key, i do have some proof their transfer funds to them while they resided with me in UK and that they were living with me.

I am wondering if i should write to ECM with this additional information?


thanks for the suggestions so far.. really useful .

[wiggsy]

wiggsy
drive to n. ireland and then get a ferry to the mainland... Smile

- although not strictly legal. once in the UK your in the UK... and therefore if they wish to remove you, as your right of residence comes from the EEA regs you have a right of appeal.

Wiggy .. thanks for the suggestion... i do want to keep the status as legal as possible. So wondering what about going via the Ferry from Dublin and requesting Code1a on the port... what the boards view ?
Two problems i can see with this...
1. i dont know how easy it is to get this on port for Dependent parents.
2. If refused on port we dont have re-entry visa for Ireland

Phrase ... rock and a hard place... comes to mind !!

~hey,

you asked how you could get into the uk this is how... should our application fail, and so on, then this will be our backup...

there is next to no border control between the north n republic of ireland.

It is wiser to try a code1a, with your stamps and rc currently in possession (EU4 stamp) its hard for the ECO to turn you back. after all, your only visiting your "sick aunt" (or w/e) before returning to IReland to work... theres no law about chaning your mind when you get back home, and realise how much you missed it... (might be worth leaving the car full of possessions etc to collect on your own after - to make it easier for the ECO to beleive your going back or w.e.

[Xbox360]

Hi Nemo,

There are two ways you can now absolutely obtain a right for your parents under surringer singh based on your circumstances:

1- Present with your parents to the UK (Through any means that will not lead to more problems), and apply for Residence card for them. Note that you will have to show that they were dependent on you in Ireland when you make the application in UK. The draw back is that they have already refused her , believing that it is a visit and you have not proved to them that your mother is dependent in Ireland so far. Thus this may still work against you because you will be seen to try and circumvent dependency.



2- The option most likely to succeed is to present evidence of dependence in UK, saying that your mum has been dependent on you from UK which was the basis of entering Ireland, and she continued exercising the treaty right in Ireland, and you all want to visit UK again using an EU family permit. The RC from Ireland will be Irrelevant if you can prove both dependence yourself, otherwise if Ireland gives you RC, you can then ignore showing your dependence in the UK. --- From your situation, UK has to do the job of Ireland immigration for RC first before granting you EU permit. That is why they still see your mothers status as a visit. So you have to prove that she is not by showing that your mother's status have always been under EU law.

There is a general saying that if there is no initial connection to EU law, then there's no initial case.


I'm not a regular person to these forums, but I do have an interest in these type of cases because countries like misinterpreting EU laws.

xbox.

[nemo]

Thanks XBox360,

Option 2- present evidence of dependence in UK, saying that your mum has been dependent on you from UK which was the basis of entering Ireland, and she continued exercising the treaty right in Ireland, and you all want to visit UK again using an EU family permit.

What about drafting a letter to ECM to review the case and provide letter of INIS, that states that we made an application for within a week of entering Ireland... hence not living in ireland under Visitor extensions..
whats your view?

thanks in advance.

[Xbox360]

Hi,,

Making an application for RC in Ireland is not the same as your parents having a right of entry as dependents when they first entered Ireland. I'm only trying to be honest to give you the option that will give you absolute power over your rights.

Unless Uk is absolutely sure that the permission for ur parents to stay in Ireland was not for a visit( which can still be given under immigration rules in Ireland), they cannot assume that your mum is dependent.

It will be up to you to prove this by showing dependency in Uk as the basis for coming to Ireland.

I wish you the best.

Xbox

[nemo]

Hi Xbox,

You are absolutely right... application for RC doesn't necessarily evidence Dependency, and thanks for pointing this out..... its something i failed to notice.

A quick question on -

It will be up to you to prove this by showing dependency in Uk as the basis for coming to Ireland.

Should it be dependency in only UK or also in India...? that we need to prove? as they were UK for a very short period before going to Ireland?

Can UKBA dispute why they traveled on Visitor visa if they weren't independent? even though the visitor visa was issued 2 years before?

regards

[Xbox360]

Hi Nemo,

You don't need to explain dependence in India. Just say that they were dependent on you from Uk( with proof) which lead to ur going to Ireland. also state that this was ur basis of being given entry permission to Ireland, and not for visit.

Thus it will be clear that they are were and are dependent on you. Eu law is about you proving ur right. THe immigration officers job is not to prove it for you.

Good luck

Xbox

[nemo]

Hi XBox,
I have sent you a PM, hope you don't mind.

thanks
Nemo

[Directive/2004/38/EC]

Nemo,

Did your parents apply for a RC in Ireland?

How long were they there with you?

Where are you and they now?