Retained rights of residence evidence policy

The request was successful.

Dear UK Border Agency,

I request disclosure of the UK Border Agency policy on contacting other Government departments in order to establish whether the spouse of an applicant for EEA permanent residence relying on retained rights of residence is still a qualified person.

The context to the request is the Court of Appeal case of Amos [2011] EWCA Civ 552, in which the Court held that UKBA would have to consider assisting a retained rights of residence applicant to establish whether their estranged EEA spouse had been and remained a qualified person. Reference is made in Amos to the power under s.40 of the UK Borders Act 2007 to obtain information from other government departments, such as the Department of Work and Pensions.

The problem is that where a non EEA national remains married but is estranged from his or her spouse, if the spouse continues to work or otherwise remains a qualified person, the non EEA national will retain rights of residence. However, because of the estrangement the non EEA national may have difficulty establishing that the spouse is still a qualified person or was a qualified person at the relevant date.

In particular I would like to know:

1. Does such a policy document exist?
2. Does the UK Border Agency ever conduct such checks itself without a request from the applicant for permanent residence and if so in what circumstances?
3. If a request is made by an applicant for permanent residence that such checks are made, what would be the response of the UK Border Agency?
4. If the First-tier Tribunal or Upper Tribunal were to direct that the UK Border Agency conduct such checks, what would be the response of the UK Border Agency?

Yours faithfully,

Colin Yeo

Freedom Of Information Team ( IND ), UK Border Agency

Dear Colin Yeo

Re: Retained rights of residence evidence policy (123146)

Thank you for your recent email concerning the above matter. We are currently dealing with your enquiry and will respond shortly.

Kind Regards

UKBA
FOI Team

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European Operational Policy Enquiries, UK Border Agency

1 Attachment

Dear Mr. Yeo,

Thank you for your email dated 25 July in which you made a request for information under the Freedom of Information Act 2000. Please see the attached .pdf document for the UK Border Agency's response to your enquiry.

Yours sincerely,

European Operational Policy Team
UK Border Agency

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