Decision Eind case: another victory for family members

[Richard66]

There has been a decision from the ECJ on the Eind case:

[Moderator edit (John) : Non-working link removed]

Here are the conclusions:

1. In the event of a Community worker returning to the Member State of which he is a national, Community law does not require the authorities of that State to grant a right of entry and residence to a third-country national who is a member of that worker’s family because of the mere fact that, in the host Member State where that worker was gainfully employed, that third-country national held a valid residence permit issued on the basis of Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992.

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.

2. 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.

It seems that the request for legal residence in another EU state has also been dealt a blow. Am I right?

[brownbonno]

It is a big blow.This decision bring to light the recognition and respect for family(ies) (reunification) by the community law.

[eufreemovement]

It is a big blow.This decision bring to light the recognition and respect for family(ies) (reunification) by the community law.

The judgement is very clear followed by Jia Case. Hope the national legislation changes will occur asap.

[archigabe]

Isn't this more like confirmation of the judgement of the 'Surinder singh' case?

[Directive/2004/38/EC]

Can you please post a full reference to the case. The link is not valid.

I suspect this case was argued in a non-english language and this is another poor translation of the decision (like Jia)

[John]

Here is a working link to the judgement ..... click here.

[John]

Well, having just read the judgement I think it is good news. But I wonder to what extent the terms of the judgement have been overtaken by the new EU regulations that came into force on 30.04.06?

[Directive/2004/38/EC]

The interaction of case law (like ECJ decisions) and statutory law, like Directive 2004/38/EC is intertwined. Several parts of the Directive exist because of ECJ decisions.

Most ECJ decisions that I have read are based on fundamental EU rights, and the Directive can not change those rights. The Directive makes those rights a bit clearer and forces member states to implement them as local law.

The Directive can only reduce your rights to the degree that it replaced earlier Directives that were more permissive. But I do not know of an example of this happening in Directive 2004/38/EC

[Richard66]

You're right, John, but I like the passage where the decision says that EU law has never been interpreted restrictively by the ECJ, which is what the UK just loves to do, trying to interpret Surinder Singh, for example, as applying in one case only and not to all cases where a returning national brings his family member home.

I've done my part and filed a complaint at the European Commission based on the Directive. Maybe I'm getting megalomaniac, but maybe there'll be a Richard66 decision in future making things even clearer.

[John]

Richard, I don't understand that. I think it is quite clear that the Surinder Singh principle has been adopted into UK law. There is a Statutory Instrument that does that.

See regulation 9 in The Immigration (European Economic Area) Regulations 2006.

[Directive/2004/38/EC]

I think what Richard66 means is that the UK is taking a restrictive view by applying Singh only when the UK national is returning to the UK to do something equivalent to EU “treaty rightsâ€

[John]

But surely the Surinder Singh case did not cover "mere" holiday visits, so isn't it still true to say that the UK has actually brought Surinder Singh into UK law, but OK, has done that to the exact "letter of the law" and no more?

[Richard66]

What I meant was that according to the UK Surinder Singh only applies if:

1. The UK national was working or was self-employed in another member state (and not living as a person of independent means or as a student)

2. The UK national no longer works or is self-eployed in the member state (and not still working)

3. The UK national is returning permanently (and not for a visit)

4. The UK national intends to work or to be self-employed in the UK (and not to be a student or person of independent means).

Anyone with any sense can see this interpretation is flawed, in that the specifics of the question has taken precedence over the principle of the Surinder Singh decision, which is:

In order for treaty rights to be exercised in all the liberty provided for by the Union Treaty, EU law and not national law applies to citizens of an EU state in their country of citizenship if these exercise treaty rights in another member state.

The holiday problem has been solved, in that even UK visas now acknowledge holidays are covered.

[Obie]

It is very interesting that you brought up the restrictive way and manner in which the UK apply the Surinder Singh Principal.

I know of a case involving an Article (3) 2 family member who was residing with a British Family member in another memberstate Lawfully, and has a residence card issued from that state.

She applied under the Singh principal, and was refused on ground that the Surinder Singh principal only applies to Spouse or Civil partner and not other family members.

The case is currently being dealt with by the courts.

It is contrary to the Singh principal, which states that a returning national has treaty rights, and the Eind ruling which broaden the scope of the Singh ruling.

[Rolfus]

Do you have any news on the case involving an Article (3) 2 family member? I have an 'other family member' in exactly the same position. She was granted a Family permit by the UK, but refused on renewal. We are going through the appeal process now.