EIND case law

[alphagear]

Just wondering whether I can rely on Eind case law in an appeal.

Obviously my application was refused due to the new regulations which came into force.

Are they really lawful?

Since i contacted Eu commission and they said UK can ask if im exercising treaty rights on return since case O and B says so.

They specifically mentioned this quote

"The Court explains that, although Directive 2004/38 is not applicable to such residence, the directive should be applied by analogy and the conditions governing such residence should not be stricter than those provided for by the directive."

[zazii]

what was the reason? they have explain you the reason?

[alphagear]

Im in similar position as you.

When i applied there was no mention of working in uk on the form. Then received a letter but was too late. Wasnt working in first 3 months of arrival

Refused because not exercising treaty rights.

[Obie]

Eind is still good law. No reasonable secretary of State or court will suggest otherwise.

[secret.simon]

i contacted Eu commission

Can you reproduce the correspondence from them here? Redact any personal details and either attach the image or (if electronic) copy-and-paste the text.

[zazii]

when did you apply? is it for surrinder singh?

[alphagear]

i contacted Eu commission

Can you reproduce the correspondence from them here? Redact any personal details and either attach the image or (if electronic) copy-and-paste the text.

Sorry but i deleted the email. Complained that Eind case not being followed

Basically mentioned that home member state can ask me to exercise treaty rights and quoted O and B case.

The following quote.

"The Court explains that, although Directive 2004/38 is not applicable to such residence, the directive should be applied by analogy and the conditions governing such residence should not be stricter than those provided for by the directive."

[alphagear]

when did you apply? is it for surrinder singh?

Yes.

[zazii]

could you please give information about your date of application? you are rejected after how long ? they reject you because you are not qualified person in uk or because of your situation before in the previous country in eeA area

[alphagear]

could you please give information about your date of application? you are rejected after how long ? they reject you because you are not qualified person in uk or because of your situation before in the previous country in eeA area

Not qualified person in UK.

[zazii]

did they issued you COA ?

[alphagear]

i contacted Eu commission

Can you reproduce the correspondence from them here? Redact any personal details and either attach the image or (if electronic) copy-and-paste the text.

I regret to inform you that I do not share your view that case law of the Court of Justice on rights of
EU citizens who return to the Member State of their nationality after having exercised their right to
move and reside freely in another Member State precludes the Member State of their nationality
from requesting that they continue to meet the Treaty rights after their return.

In its most recent judgment on returning nationals (case C-456/12 O and B), the Court of Justice
stated that "so far as concerns the conditions for granting, when a Union citizen returns to the
Member State of which he is a national, a derived right of residence […] to a third-country national
who is a family member of that Union citizen […], those conditions should not, in principle, be more
strict than those provided for by Directive 2004/38/EC […]. Even though Directive 2004/38/EC does
not cover such a return, it should be applied by analogy […]."

According to available information and following analysis of your complaint in the light of
applicable EU law, your complaint is unfounded in law. Unless we receive within four weeks of the
date of this letter new information that could cause us to change our opinion, we will close your
complaint.

Yours sincerely,
(e-signed)
Marie xxxxxxx

[zazii]

it was EFM or FM case? can you re-apply?

[rahmsye]

could you please give information about your date of application? you are rejected after how long ? they reject you because you are not qualified person in uk or because of your situation before in the previous country in eeA area

Not qualified person in UK.

Hi I am also doing surinder singh route as well and applied after the changes. As far as I understood once you come back to UK they treat you as an EU citizen so therefore you have to find work be self sufficient or be employed or student. Was that not the case for you simply asking because I then resent them all this information which I did not include the first time.

I am yet to hear back from them so a bit nervous for my wife who is non eea.

[alphagear]

Experts,

Whats your opinion on the reply i got from eu commission?

[mkhan2525]

What have you been doing since you've come back to the UK ie have you applied for any jobs, attended any interviews, registered with the job centre etc? You may be able to reapply and provide them with evidence as a job seeker or prove self sufficiency by getting CSI for your non-eu family members.

According to the updated guidance HO were entitled to refuse your application if you did not supply them with information on your activities in the UK when requested.

Stage 1:verify the family member’s eligibility to apply and British citizen’s eligibility to sponsor the application

If the application does not include sufficient evidence of identity, the British citizen’s qualified person status, or relationship (except where a marriage interview is necessary), you must refuse the application (stage 6)

I agree with Obie that Eind is still good case law however the current judgement in O&B has caused confusion and it seems from the newly updated guidance, HO aren't entirely sure which approach to follow. They are currently disregarding Eind when applying for an RC and then applying Eind in PR cases.

On a positive note the Upper Tribunal has accepted and applied the question in the Eind judgement regarding the exercise of treaty right upon return in "EEA Regulations 2006 - Article 9(2) - Surinder Singh spouse 2010."

https://tribunalsdecisions.service.gov. ... 0-ukut-420

[secret.simon]

On a positive note the Upper Tribunal has accepted and applied the question in the Eind judgement regarding the exercise of treaty right upon return in "EEA Regulations 2006 - Article 9(2) - Surinder Singh spouse 2010."

https://tribunalsdecisions.service.gov. ... 0-ukut-420

Not sure of the relevance of the UT judgement because it was of course before O & B.

For a fuller picture, below are the summary of the judgments in the two cases. Remember that a latter judgment can override an earlier judgment.

When a worker returns to the Member State of which he is a national, after being gainfully employed in another Member State, a third-country national who is a member of his family has a right under Article 10(1)(a) of Regulation No 1612/68 as amended by Regulation No 2434/92, which applies by analogy, 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. The fact that a third-country national who is a member of a Community worker’s family did not, before residing in the Member State where the worker was employed, have a right under national law to reside in the Member State of which the worker is a national has no bearing on the determination of that national’s right to reside in the latter State.

Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third‑country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third‑country national who is a family member of that Union citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third‑country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.

At a glance, what I can see from the summary is that in Eind, the ECJ applied Regulation (EEC) No 1612/68 by analogy to SS cases, while in O&B, the ECJ applied Directive 2004/38/EC, a broader and newer law that covers self-sufficient people in addition to workers, by analogy to the same class of people (SS cases).

So, it is not improbable to argue that O & B implicitly overrides Eind, by updating the EU law that applies by analogy to SS Cases.

What that can mean is that as a British citizen returning to the UK is granted the rights of an EEA citizen by analogy, he must also meet all the requirements that an EEA citizen must meet under the Directive by analogy. Indeed, I think that is pretty much the European Commission's point.

I invite comments on this post, especially from vinny, Obie and other learned members.

[Obie]

I don't concur with that assessment.

Firstly it cannot coincide with the purpose of directive 2004/38 EC, which is to strength rights and not to reduce them.

There are principles established in Eind which remains good law in the light of Metock.

1. It was established that the right of the migrant worker to reside in their home state upon their return cannot be made conditional, and that seems good law. Under international law, the right of a person to reside in their home state cannot be made conditional.

2. Secondly the right of a migrant worker, which Eind as opposed to O B were dealing with derived from the treaties. The right continue to have effect even when the employment relationship has concluded. This right, as Advocate General Mengoozi said in his opinion in Eind , continue to have effect even when the migrant worker returns home.

There is nothing in O and B to indicating the court was departing from , to the contrary. The court was simply dealing with circumstances in which those principle established in those cases can be applied in Article 21 cases.

When the Court was departing from Akrich in Metock, it made its position very clear.

OB clearly were not dealing with the rights of a migrant worker. Furthermore the principles of interpretation from.Metock, indicates that the directive cannot be interpretated in a manner,in which the citizen has rights from it, the from the provision it repeals or replace.

[mkhan2525]

On a positive note the Upper Tribunal has accepted and applied the question in the Eind judgement regarding the exercise of treaty right upon return in "EEA Regulations 2006 - Article 9(2) - Surinder Singh spouse 2010."

https://tribunalsdecisions.service.gov. ... 0-ukut-420

Not sure of the relevance of the UT judgement because it was of course before O & B.

For a fuller picture, below are the summary of the judgments in the two cases. Remember that a latter judgment can override an earlier judgment.

When a worker returns to the Member State of which he is a national, after being gainfully employed in another Member State, a third-country national who is a member of his family has a right under Article 10(1)(a) of Regulation No 1612/68 as amended by Regulation No 2434/92, which applies by analogy, 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. The fact that a third-country national who is a member of a Community worker’s family did not, before residing in the Member State where the worker was employed, have a right under national law to reside in the Member State of which the worker is a national has no bearing on the determination of that national’s right to reside in the latter State.

Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third‑country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third‑country national who is a family member of that Union citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third‑country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.

At a glance, what I can see from the summary is that in Eind, the ECJ applied Regulation (EEC) No 1612/68 by analogy to SS cases, while in O&B, the ECJ applied Directive 2004/38/EC, a broader and newer law that covers self-sufficient people in addition to workers, by analogy to the same class of people (SS cases).

So, it is not improbable to argue that O & B implicitly overrides Eind, by updating the EU law that applies by analogy to SS Cases.

What that can mean is that as a British citizen returning to the UK is granted the rights of an EEA citizen by analogy, he must also meet all the requirements that an EEA citizen must meet under the Directive by analogy. Indeed, I think that is pretty much the European Commission's point.

I invite comments on this post, especially from vinny, Obie and other learned members.

My understanding of Freemovement law is that it seeks to protect the family life that was created or strenghthened in the host member state and that family life must be allowed to continue upon return without any conditions attached as long as the EU national has exercised treaty rights in the host member state.

The main principle of EU law is to encourage and facilitate freemovement across EU member state. If family members of an EU national were unable to accompany them to another member state or the EU national is not certain whether they could return to the member state of their nationality with those family members would deter them from moving.

Eind: A national of a Member State could be deterred from leaving that Member State in order to pursue gainful employment in the territory of another Member State if he does not have the certainty of being able to return to his Member State of origin, irrespective of whether he is going to engage in economic activity in the latter State.

That deterrent effect would also derive simply from the prospect, for that same national, of not being able, on returning to his Member State of origin, to continue living together with close relatives, a way of life which may have come into being in the host Member State as a result of marriage or family reunification.

Barriers to family reunification are therefore liable to undermine the right to free movement which the nationals of the Member States have under Community law, as the right of a Community worker to return to the Member State of which he is a national cannot be considered to be a purely internal matter.

I believe this is what Obie means by established principles. If I am wrong he will correct me.

The UK government is deliberately creating obstacles to exercising free movement rights by requiring British nationals to exercise treaty rights upon return. Eind makes clear that family life must be protected and the UK government or any other government of a member state cannot interfer with those rights.

[secret.simon]

While delivered in 2007, Eind was a judgment on events that occurred in 2001-2003. It therefore referenced the EU law applicable to family members of EEA workers (it did not automatically apply to other citizens moving around) who moved to another member-state, which was Regulation No 1612/68. That law was drafted in 1968 and updated in 1992. In those simpler times, there were no detailed requirements listed in that Regulation and they were applied by analogy to SS applicants.

In 2014, in the case of O & B, the ECJ made pretty much the same judgment (i.e. kept to the same principle); that the latest law that applied to EEA citizens moving between member-states should also apply by analogy to SS applicants.

So, O & B was an update of Eind, nothing more. Seen from that prism, one can see that the ECJ did stick to principle; that of analogy.

The only difference was that the latest law, Directive 2004/38/EC was more detailed and had more requirements than Regulation No 1612/68.

In summary, the substance of Eind and O & B is the same; that an SS applicant be treated the same as an EEA citizen moving to the member-state for the first time. The only difference is that the law for EEA citizens in 2000 and the law for EEA citizens since 2004 is different.

Because O & B is only an update of Eind and not a departure, it did not require an explicit repeal.

As we are on a law-oriented thread, I will end with an aside. Sir Roger Scruton, a professor of philosophy, gave a speech recently in which he suggests that the different legal system of most of the UK (all of it bar Scotland) - common law - may be responsible for Brexit. It is a fascinating and provoking thought that opposition to the European (not the ECJ in specific, but the broad system) concept of jurisprudence is in the UK's DNA.

I must warn that the speech linked to below may be offensive to certain people. But if you are open to thought experiments with concepts that you may dislike, it is worth a read, especially for people learned in the law.

Which are the British institutions that matter most?

[zazii]

in this case, if british citizen registered in job center and has chance to find a job regarding to his/her skills and academic qualification, the HO would be ok if non-Eu family apply for RC?

[alphagear]

The following is Denmarks Surinder Singh guidance. Both Eind and O and B recognised.

https://www.nyidanmark.dk/en-us/coming_ ... eu-law.htm

5. Economic activity upon return

A Danish national who has exercised his/her right of free movement in another EU/EEA Member State as:

a worker
a self-employed person
a service provider
a retired worker
a retired self-employed person, or
a retired service provider
need not be economically active to obtain family reunification with his/her spouse/permanent cohabitant and/or his/her or the spouse's children under 21 years of age upon his/her return to Denmark.

Accordingly, it follows from the Eind judgment (case C-291/05) that:

"When a worker returns to the Member State of which he is a national, after being gainfully employed in another Member State, a third-country national who is a member of his family has a right under Article 10(1)(a) of Regulation No. 1612/68 as amended by Regulation No. 2434/92, which applies by analogy, 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."

Danish citizens, who, upon returning to Denmark, change employment status from ‘inactive’ (student or self-supporting) to ‘active’ (employee or independently employed), will not be required to support themselves and their immediate family. This may be required at a later date if the Danish citizen becomes economically inactive again.

Paragraph 6 below provides more information on the condition of support.

6. Support of yourself and your family

The condition of support differs depending on the basis of residence of the Danish national in the EU/EEA Member State in which the relevant person has exercised his/her right of free movement, and depending on the status of the family members included in the application for family reunification.

A Danish national applying for family reunification in Denmark under EU law after having exercised his/her freedom of movement in another EU/EEA Member State as a worker, self-employed person or service provider (economically active person) or as a retired worker, self-employed person or service provider (retired economically active person) is not required to prove that s/he can support his/her spouse/permanent cohabitant and children under 21 years of age and the spouse's children under 21 years of age (core family members). This applies regardless of whether the relevant person receives social assistance or other maintenance in Denmark.

However, a Danish national applying for family reunification with family members other than his/her spouse/permanent cohabitant or children under 21 years of age or the spouse's/permanent cohabitant's children under 21 years of age after having exercised his/her freedom of movement in another EU/EEA Member State as an economically active or retired economically active person and having returned to Denmark may be required to prove that s/he is able to support those family members.

A Danish national applying for family reunification upon his/her return to Denmark after having exercised his/her right of free movement in another EU/EEA Member State as a student may also be required to declare or by such similar mean as they may choose that s/he has sufficient means for him/herself and all his/her family members, including his/her spouse/permanent cohabitant and children under 21 years of age and the spouse's/permanent cohabitant's children under 21 years of age. Is the family member a spouse/permanent cohabitant, a child under 21 years of age or the spouse's/permanent cohabitant's child under 21 years of age the Union citizen/EEA national need only declaring that s/he has sufficient means.

Moreover, a Danish national who has exercised his/her freedom of movement in another EU/EEA Member State as a self-supporting person may be required to prove that s/he has sufficient means for him/herself and all his/her family members, including his/her spouse/permanent cohabitant and children under 21 years of age and the spouse's/permanent cohabitant's children under 21 years of age.

However, Danish citizens will not be required to support themselves and their immediate family if they, upon returning to Denmark, change their employment status from ‘inactive’ (student or self-supporting) to ‘active’ (employee or self-employed). This may be required at a later date if the Danish citizen becomes economically inactive again. Read more in Juridisk fortolkningsnotat om sagerne C-456/12, O. m. fl., og sag C-457/12, S., which is only available in the Danish language edition. 

Likewise, Danish citizens will not be required to support themselves and their immediate family upon returning to Denmark, if they have been granted permanent residence in the EU/EAA country under the EU rules on free movement. Read more in Juridisk fortolkningsnotat om Clauder-dommen (E-4/11) (in Danish only), which also apply for Danish nationals who have exercised the right to free movement in another EU/EEA country.

The State Administration can give you more information about which family members may be eligible for a registration certificate or residence card and the conditions that must be satisfied.

[alphagear]

Obie,

Can i send you a private message?

[Obie]

People can PM me if there is matters of privacy which they cannot discuss on open forum.

However i must warn that it is not all message i reply to, for many reasons of time and convenience.

[alphagear]

Message sent