Surinder Singh Policy and EU Case C‑456/12

The request was refused by Home Office.

Dear Home Office,

Could you provide any internal documentation / notes regarding the recent ruling by the EU Court of Justice case C‑456/12 dated 12 March 2014*

Particularly on how they would effect Surinder Singh cases especially regarding an EEA2 Application and and EU Family Permit and recent amendments to regulation 9

Yours faithfully,

Mrs Amin

*
http://curia.europa.eu/juris/document/do...

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Dear FOI Requests,

Hi, could you acknowledge my request please

Yours sincerely,

Mrs Amin

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recorded information held by the department.
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request within 24 hours, and aim to provide the information requested
within 20 working days as specified under the FoI Act.

Please note we are unable to respond to non-FOI immigration enquiries. If
you have a general immigration enquiry, or require an update on a specific
case, contact information can be found here:
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Mrs Amin

 

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FOI Responses, Home Office

1 Attachment

Dear Mrs Amin

 

Thank you for your email of 28 March, your request has been handled as a
request for information under the Freedom of Information Act 2000. Please
find attached our response

 

Yours Sincerely

 

Information Access Team

 

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Wayne Pearsall left an annotation ()

Dear Sir/Madam,
Please find below the reply to your enquiry. Please note that the advice given by Your Europe Advice is an independent advice and cannot be considered to be the opinion of the European Commission, of any other EU institution or its staff nor will this advice be binding upon the European Commission, any other EU or national institution.
Dear Sir,
Thank you, Sir, for contacting Your Europe Advice.
1.You indicate that you are a UK citizen, and you are married to a citizen from the Philippines. You have returned to the UK, following a stay in excess of 3 months in France. Your child was also born in France. Having returned to the UK (where we assume the UK authorities have allowed your wife to return to the UK), you now wonder what rights of residence your wife has in the UK.
In particular, your wife has applied to obtain a National Insurance Number, which has been refused by the relevant social security office.
The short answer to your query is that the Social Security office must consider your wife's application for a National Insurance number, in the light of her circumstances. The lack of an EEA2 residence card cannot be grounds for refusing your wife her national insurance number, inasmuch as her rights can be established by other means of proof. The Court of Justice of the European Union has held that your wife's status must be regulated by analogy to those set out under Directive 2004/38.
Article 25 of the Directive provides that:
Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.
The provision above has been held to be binding in law in the case of Okuoimose v City Facilities Management (UK) Ltd UKEAT/0192/11/DA.
Thus, you wish to avail yourself of the Surinder Singh caselaw, in an effort to travel back to the UK (case C370/90). Note in this respect that UK law was amended by the recent changes to the EEA 2006 Regulations, which entered into force on the 1st January 2014;http://www.legislation.gov.uk/uksi/2013/...
Note that for your wife to become eligible for the right of residence under Regulation 9 of the EEA 2006 Regulations, (transposing the Surinder Singh caselaw), you must have moved to another Member State of the European Union (e.g. France), where you must have exercised your rights either as a worker or a self employed person, as well as proving that the center of life has shifted from the UK to another Member State of the European Union (ie, to France).
Providing you prove that you cohabit with your spouse in France, your wife is eligible for residence into the UK by virtue of Regulation 9 of the 2006 EEA Regulations.
That is to say, Provided you are able to satisfy the following conditions:
That you are married
That you resided in France as a married couple
That whilst resident in France, both you and your spouse live in married cohabitation
And that you were active economically, either as a worker or a self employed person in France.
Since the 1st January 2014, you must also prove that your centre of life shifted from the UK to France.
2. As you know the UK amended regulation 9 to introduce the additional requirement indicated above, that British nationals who seek to return home after exercising free movement rights in another EEA country have to now demonstrate that they transferred their centre of life to another EEA member state.
3. As you are aware, under EU law, the non-EU family members of an EU citizen would have the right to reside in their EU relative s home country upon their return there if the EU citizen had previously worked in another EU country for a reasonable amount of time and the family members had lived there with him.
4. These rights stem from the European Court of Justice s ruling in Singh (case C-370/90) and Eind (case C-291/05).These cases concerned the rights of family members of EU citizens to benefit from EU rights of residence when returning back to the EU citizen s home country after spending some time working in another EU country (in the Singh case two years and in the Eind case for twenty months).
5. Therefore the Surinder Singh rules are not contained in a specific provision of the EU Treaties or EEA Agreement or indeed Directive 2004/38. Instead, the rules were laid down in case law.
6. There have not been any further rulings on the scope of these judgments. However, there are two cases currently pending before the EU Court of Justice - Cases C-456/12 and C-457/12 - which are essentially about whether the Surinder Singh ruling can be extended to other situations, such as recipient of services and cross-border workers.
7. The Court of Justice has held in the cases referred to above the following:
i) The Union citizen must reside in the Host Member State for a period in excess of 3 months, exercising rights as a worker, self employed, student or self sufficient person under Article 7 Directive 2004/38,
AND
ii). There must be a genuine family life in the Host Member State (i.e. cohabitation in the Host Member State).

LIKELY IMPACT ON THE 2006 EEA REGULATIONS:
The UK Government will have to comply and amend the EEA 2006 Regulations, in line with this Judgment, in respect of the following 2 items.

1. The 2006 EEA Regulations limit the scope of Surinder Singh to Sponsors who exercise an economic activity in another Member State (ie other than the UK).
2. The amended Regulations (since 1/01/2014) require the Sponsor to have shifted his centre of life from the UK to another Member State:

Both conditions are clearly incompatible with the Court of Justice of the EU Judgement cited above.
8. Applying the amended EEA Regulations, it means that you must be able to prove that you and your spouse have lived in France, and that you have been economically active, either as a worker or a self employed person. But note that the conditions prescribed by the amended EEA Regulations are clearly incompatible with the Court's Judgment under joined Cases C456/12 and C457/12. Thus, where your wife is refused the Residence Card, this would generate a right of appeal, which your wife could exercise in order to challenge the decision.
9. Also note that should your wife apply for the UK residence card, she is eligible on the basis of the conditions described above. A fee of £55 is applicable and the time frame for the application is between 4 to 6 months. When issued the residence card is valid for 5 years.
You are invited to send us a follow up query, should you wish to have more information and advice on the matter of the exemption and the matter of the two joined cases referred to above (C456/12 and C457/12); The Grand Chamber of the Court of Justice handed down its Judgment on the 12th March, so we should have more guidance on the matter of the Surinder Singh caselaw shortly from commentators and potentially from the Courts.
You would therefore need to seek the assistance of an organisation that can help you further.
Depending on where you live, you may also visit your local law centre which provide free services.
http://www.lawcentres.org.uk/
The Immigration Law Practitioners Association is an association of immigration specialists, many of which are solicitors but some of their member organisations include Law Centres that provide free advice. Their members are listed here:
http://www.ilpa.org.uk/directory/webdire...
You can also search for a not-for-profit licensed immigration advisor here:
http://oisc.homeoffice.gov.uk/about_oisc...
You can also seek the advice of a solicitor specialised in immigration matters. You can search for solicitors on the Law Society s website – enter your postcode and select immigration law from the Area of Law drop-down menu:
http://www.lawsociety.org.uk/choosingand...
We hope this answers your query.
We remain at your disposal, should you require further information.
Yours truly,
Your Europe Advice.
To submit another enquiry, please visit Your Europe Advice, but do not reply to this e-mail.

Yours sincerely,
Your Europe Advice

Robert Simpson left an annotation ()

Home office said in their reply "The requestor will be able to access this information within a reasonable timescale and it will be sent directly to Mrs Amin"

It has been 5 months now since their reply and they have not provided it directly Mrs. Amin.