Basis to Challenge Eind rule changes based on FOI

[gillacious_505]

HI Forum,

Would like to mention some content from the FOI request which can form a basis to challenge the Eind Case law changes.

Thank you for your e-mail of 23 May, in which you ask for the following recorded
information:

“1) What is the Home Office policy in dealing with EEA2 applications that refer to
the 'Eind' case? Please provide any internal guidance notes/instructions that are
provided to Case Workers on how to deal with 'Eind' cases both as part of the old
and subsequent to the amended regulations in 2016.


“2) Please provide an explanation/documentation/legal advice as to why the Home
Office, as a matter of policy, have chosen to deviate away from the old legal advice
it has sought regarding the 'Eind' judgement.


“3) Provide internal memos/notes that deal with transitional arrangements [that]
have been put in place to address these changes given the polarised changes
which would have impacted people who would have made decisions based on the
previous advice that was provided by the UKBA.”

Your request has been handled as a request for information under the Freedom of
Information Act 2000.

Question 1

The casework guidance you have requested is already reasonably accessible to you. ‘Free
movement rights: family members of British citizens’ was last updated on 4 April 2017 and
can be found here: https://www.gov.uk/government/collectio ... onals-and-
ec-association-agreements-modernised-guidance.

The Court of Justice of the European Union (CJEU) judgment of Eind is also referred to in
the ‘EEA case law and appeals’ guidance which was last updated on 27 March 2017 and
can be found at the same location.




Previous versions of EEA guidance can be found on the National Archives website at:
http://webarchive.nationalarchives.gov. ... ice.gov.uk. Prior to 25
November 2016, guidance on EEA applications from family members of British citizens
was set out in guidance titled ‘Direct family members of EEA nationals’.

Section 21 of the Freedom of Information Act exempts the Home Office from having to
provide you with this information, because it is already reasonably accessible to you. If you
have any difficulties in accessing this information at the source which I have indicated,
please contact me again.

Please find attached the guidance note 05/2011 titled ‘Regulation 9 – Surinder Singh
cases’ from which you quoted in your e-mail of 23 May. This guidance note was issued on
19 May 2011 and was replaced by modernised guidance on 4 February 2015.

Question 2

I can confirm that the Home Office does not hold any recorded information about any
decision to deviate from any previous legal advice relating to the Eind judgment.

Question 3

I can confirm that the Home Office does not hold any information relating to transitional
arrangements with regards to CJEU judgment of Eind. Information about the residence
rights of family members of British citizens is set out in the documents referred to in the
answer to your first question.


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 44041. If you ask for an internal review, it would be helpful if you
could say why you are dissatisfied with the response.

Information Rights Team
Home Office
Fourth Floor, Peel Building
2 Marsham Street
London SW1P 4DF
e-mail: xxxxxxxxxxx@xxxxxxxxxx.xxx.xxx.xx

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.

[secret.simon]

Tidied up the link in the original post to make them more accessible.

EEA, Swiss nationals and EC association agreements (modernised guidance)

Perhaps the most relevant document would be Free movement rights: family members of British citizens.

[Richard W]

For those who can't click from the PDFs to the Eind judgement, it's http://www.bailii.org/eu/cases/EUECJ/2007/C29105.html .

I must say it reads like a case of "Here's the law, now do something different".

[gillacious_505]

Question 2
I can confirm that the Home Office does not hold any recorded information about any
decision to deviate from any previous legal advice relating to the Eind judgment.



See the reply from HO. They really don't have any clue as to why they changed the law although it is still there. Before they were refusing to answer it and now they are admitting it.

[Obie]

Eind is still good law. Even though UKVI does not recognise it, the courts and tribunal does , and that gives me comfort.

Just clear the supreme court has made clear that the definition of marriage of convenience in regulation 2, has no basis in law.

http://www.bailii.org/cgi-bin/format.cg ... (Sadovska)

So too, will they recognise that any suggestion that OB (C-456/12) has overturned Eind has no basis in law.

[secret.simon]

See the reply from HO. They really don't have any clue as to why they changed the law although it is still there. Before they were refusing to answer it and now they are admitting it.

Not really.

Question 2
I can confirm that the Home Office does not hold any recorded information about any decision to deviate from any previous legal advice relating to the Eind judgment.

The FOI Act applies to written, recorded communication. It has long been feared (see this news article from 2010) that making all written communications accessible to the public through FOI requests simply made civil servants communicate through either more verbal means (telephone calls, face-to-face meetings, etc) or though written communications that are not recorded (post-it notes, instant messaging instead of emails, etc).

While FOI has its benefits, in a sense, it has left us poorer. We will have a poorer understanding of history, of why events occurred because no written records of the reasoning behind it will have been kept. Think about what a loss it will be to history that there will be no notes left to explain to posterity how government decisions were taken in the era of Brexit. The government decisions of WWII will have been better documented than that of Brexit.

[mkhan2525]

If the advocate general opinion in the Lounes case is anything to go by it appears Article 21 of TFEU is the protector of free movement rights and family life and seeks to eliminate obstacles. If that is a correct interpretation then I'm sure that requring a British Citizen to engage in qualifying activties on return could amount to an obstacle because the Treaty cannot have the effect of discouraging movement or allow for a situation whereby rights derived from them are lost due to obstacles.

Even though Mrs Lounes natralised as a British Citizenn if her husband was unable to reside with her that would be an obstacle. To get the rights back that she previously enjoyed she would have had to take the SS route which would also amount to an obstacle for her. Her free movement rights were preserved.

[Richard W]

@Mkhan2525: As I understand it, if the advocate-general's opinion is followed, Toufik Lounes has lost. The discussion of that case and its implications is in the pinned thread Do Dual EU-UK Citizens Have Rights under EU Law. I internalise Eind as being the principle that rather than needing to be a qualified person, a returning national is instantly a permanent resident so far as the family members moving with him are concerned.

[mkhan2525]

My undertanding is that Eind covers the situation of a worker and doesn't apply to other forms of exercise of Treaty rights.

Article 21 seems to be widely interpretated by the ECJ to cover situations that aren't covered by the Citizens Directive. The lounes case bares similarities to a Surinder Singh case because SS rights fall under Article 21 TFEU. See paragraphs 54 & 65 of O and B Netherlands.