European Operational Policy Team
North West Region
PO Box 306
(FOI)Home Office Ref: 23660
Date: 9 August 2012
Dear Mr. Stevens,
Thank you for your e-mail of 30 July in which you ask for information regarding the
United Kingdomâs implementation of the judgment of the Court of Justice of the
European Union (ââECJââ) in the case of Eind
Your request is being
handled as a request for information under the Freedom of Information Act 2000.
You have asked whether the UK Border Agency is aware of the judgment in the case
and what the UK Border Agency policy is in dealing with applications affected
by the judgment.
As you are aware, the ECJ ruled in Eind
that a non-EEA national family member of
an EEA national who has worked in another EEA member state, and who resided
with the EEA national in that state, has a right to reside in the Member State of which
the worker is a national even where that worker does not carry on any effective and
genuine economic activities on their return.
judgment expanded the scope of a previous judgment of the ECJ in the
case of Surinder Singh
(C370-90) which confirmed the rights of non-EEA family
members of EEA nationals who had worked in another EEA member state to
accompany their family member on their return to the EEA member state of their
nationality. The Surinder Singh
judgment has been incorporated into the Immigration
(European Economic Area) Regulations 2006 (ââthe Regulationsââ) by way of
The impact of the Eind
judgment on UK nationals is that where the UK national has
been exercising Treaty rights as a worker or self-employed person in another EEA
member state, the right of family members who resided with them in that member
state to accompany them to the UK under regulation 9 is not reliant on the UK
national being economically active in the UK on their return.
The UK Border Agency acknowledges the judgment in Eind
and as a result there is
no requirement for UK nationals who seek to rely on the provisions of regulation 9 to
sponsor their family members under the Regulations to provide evidence of
employment or self-employment on their return to the UK.
The impact of the judgment has been communicated to UK Border Agency staff in an
internal guidance notice, which is set out at Annex A of this response. Please note
that this document has had some of the information held within it redacted as it falls
to be exempted from release under Section 40(2) of the Act, as it refers to personal
information. The exempted sections are marked as redacted.
We are currently in the process of modernising the existing staff guidance for
European case work, and will ensure that the updated position is reflected when the
modernised guidance is published.
You have requested information regarding the number of applications made on the
basis of the Eind
ruling since the judgment was handed down by the ECJ.
Unfortunately, as applications for a document confirming a right of admission or
residence under the Regulations by persons relying on regulation 9 are recorded in
the same way as applications made by family members of EEA nationals, it is not
possible to ascertain how many applications were made on this basis since the Eind
judgment was handed down in December 2007.
You have asked why the UK Border Agency website does not highlight the impact of
judgment on applications from family members of UK nationals under the
Regulations. As a result of your enquiry we have reviewed the information on the UK
Border Agency website and we agree that the information for family members of
British citizens on the âEuropean Nationalsâ section of the website is out of date and
reflects the previous position following the judgment in Surinder Singh
. Thank you for
bringing this to our attention and please be advised that we will amend this section in
You have also asked about why there is no provision in the EEA2 form for
applications on the basis of the âEindâ
judgment. Amendments were in fact made to
the EEA2 and EEA4 form to better accommodate applications for documentation on
the basis of regulation 9. These are referred to as âSurinder Singhâ cases as this was
the most relevant judgment for family members of UK nationals, however, the form
does not preclude applications submitted on the basis of the Eind
the EEA national is not economically active in the UK.
In keeping with the Freedom of Information Act, we assume that all information can
be released to the public unless it is exempt. In line with normal practice we are
therefore releasing the information which you requested via the Home Office website.
If you are dissatisfied with this response you may request an independent internal
review of our handling of your request by submitting a complaint within two months to
the address below, quoting reference FOI 23660. If you ask for an internal review, it
would be helpful if you could say why you are dissatisfied with the response.
Information Access Team
Ground Floor, Seacole Building
2 Marsham Street
London SW1P 4DF
e-mail: [email address]
As part of any internal review the Department's handling of your information request
will be reassessed by staff who were not involved in providing you with this response.
If you remain dissatisfied after this internal review, you would have a right of
complaint to the Information Commissioner as established by section 50 of the
Freedom of Information Act.
European Operational Policy Team
UK Border Agency
Annex A â European Operational Policy Notice 05-2011: âInstruction on
Regulation 9 Surinder Singh casesâ [Redacted]
European Operational Policy Team
19 May 2011
1. This notice is to clarify the position relating to family members of British citizens
who apply for documentation on the basis of regulation 9 of the Immigration
(European Economic Area) Regulations 2006 (âthe Regulationsâ) (i.e. Surinder
2. Currently, section 5.5 of Chapter 5 of the European Casework Instructions â
Residence Card Applications â states that in support of an application which relies
on regulation 9 the applicant must provide:
ďˇ The valid British passport of the British citizen
ďˇ The passport of the third country national
ďˇ Marriage certificate/civil partnership certificate
ďˇ Documentation confirming that the British citizen would be a qualified
person if s/he were an EEA national
3. This guidance is incorrect and does not reflect the actual requirements of
regulation 9 or associated case law.
4. Legal advice has clarified that the British sponsor in a Surinder Singh case does
not need to prove that s/he continues to be a worker or self-employed person
upon his/her return to the United Kingdom. The UK national is only
show that s/he was a worker or self-sufficient person before returning to the United
Kingdom. The UK national is not required to be a qualified person under the
Regulations following his return to the UK.
5. This position was most recently confirmed in the case of Eind, where the Union
citizen (who was Dutch) had worked in the UK but on his return to the Netherlands
was neither working nor self-employed. The ECJ held that the fact that he was no
longer carrying on any effective and genuine economic activities on his return to
his home State was irrelevant.
6. The ECIs will be amended to reflect this accordingly.
7. Any policy enquiries on this Notice should be addressed to [REDACTED] or
Head of European and Nationality Policy
19 May 2010